Title 50—Wildlife and Fisheries--Volume 1
PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
§ 679.28   Equipment and operational requirements.
(a) Applicability. This section contains the operational requirements for scales, observer sampling stations, vessel monitoring system hardware, catch monitoring and control plans, catcher vessel electronic logbook software, and video monitoring systems. The operator or manager must retain a copy of all records described in this section (§ 679.28) as indicated at § 679.5(a)(5) and (6) and make available the records upon request of NMFS observers and authorized officers as indicated at § 679.5(a)(5).
(b) Scales used to weigh catch at sea. In order to be approved by NMFS a scale used to weigh catch at sea must meet the type evaluation requirements set forth in paragraph (b)(1) of this section and the initial inspection and annual reinspection requirements set forth in paragraph (b)(2) of this section. Once a scale is installed on a vessel and approved by NMFS for use to weigh catch at sea, it must be reinspected annually and must be tested daily and meet the maximum permissible error (MPE) requirements described in paragraph (b)(3) of this section.
(1) List of scales eligible for approval. The model of scale must be included on the Regional Administrator's list of scales eligible to be approved for weighing catch at sea before an inspector will schedule or conduct a scale inspection under paragraph (b)(2) of this section. A scale will be included on the list when the Regional Administrator receives the information specified in paragraphs (b)(1)(i) through (iv) of this section. This information identifies and describes the scale, sets forth contact information regarding the manufacturer, and sets forth the results of required type evaluations and testing. Type evaluation and testing must be conducted by a laboratory accredited by the government of the country in which the tests are conducted.
(i) Information about the scale. (A) Name of scale manufacturer.
(B) Name of manufacturer's representative.
(C) Mailing address of scale manufacturer and manufacturer's representative.
(D) Telephone and fax number of manufacturer's representative.
(E) Model and serial number of the scale tested.
(F) A written description of the scale and diagrams explaining how the scale operates and how it compensates for motion.
(G) A list of the model numbers of all scales for which type evaluation results are applicable, identifying the differences between the model evaluated in the laboratory and other models listed. The scales may differ only in the elements of the scale that perform motion compensation, the size or capacity of the scale, and the software used by the scale.
(H) A list of types of scale adjustments that will be recorded on the audit trail, including the name of the adjustment as it will appear on the audit trail, and a written description of the adjustment.
(ii) Information about the laboratory. (A) Name of laboratory.
(B) Mailing address of laboratory.
(C) Telephone and fax number of laboratory's representative.
(D) Name and address of government agency accrediting the laboratory.
(E) Name and signature of person responsible for evaluation of the scale and the date of signature.
(iii) Checklist. A completed checklist indicating that all applicable technical and performance standards in appendix A to this part and the laboratory tests in the annex to appendix A to this part have been met.
(iv) Verification of test results. Verification that a scale meets the laboratory evaluation and testing requirements in appendix A of this part and each of the influence quantity and disturbance tests as specified in the annex to appendix A to this part:
(A) Test results and data on forms supplied by NMFS;
(B) National Type Evaluation Program (NTEP) Certificates of Conformance, test results and data for a component of a scale or for the entire device. NTEP Certificates of Conformance, test results, and data may be submitted only in lieu of the specific influence factor tests conducted to obtain the NTEP Certificates of Conformance. Additional information must be submitted to verify compliance with the laboratory tests that are not performed under the NTEP; and/or
(C) International Organization of Legal Metrology (OIML) Certificates of Conformance, test results and data.
(v) Exceptions. A scale manufacturer or their representative may request that NMFS approve a custom built automatic hopper scale under the following conditions:
(A) The scale electronics are the same as those used in other scales on the Regional Administrator's list of scales eligible for approval;
(B) Load cells have received Certificates of Conformance from NTEP or OIML;
(C) The scale compensates for motion in the same manner as other scales made by that manufacturer which have been listed on the Regional Administrator's list of scales eligible for approval;
(D) The scale, when installed, meets all of the requirements set forth in paragraph 3 of appendix A to this part, except those requirements set forth in paragraph 3.2.1.1.
(2) Inspection of at-sea scales —(i) What is an inspection? An inspection is a visual assessment and test of a scale after it is installed on the vessel and while the vessel is tied up at a dock and not under power at sea to determine if the scale meets all of the applicable performance and technical requirements in paragraph (b)(2) of this section and in appendix A to this part. A scale will be approved by the inspector if it meets all of the applicable performance and technical requirements in paragraph (b)(2) of this section and appendix A to this part.
(ii) How often must a scale be inspected? Each scale must be inspected and approved before the vessel may participate in any fishery requiring the weighing of catch at sea with an approved scale. Each scale must be reinspected within 12 months of the date of the most recent inspection.
(iii) Who may perform scale inspections and approvals? Scales must be inspected and approved by a NMFS-staff scale inspector or an inspector designated by NMFS and trained by a NMFS-staff scale inspector.
(iv) How does a vessel owner arrange for a scale inspection? The operator must submit a request for a scale inspection at least 10 working days in advance of the requested date of inspection by filing a request online or by printing and faxing the scale inspection request at http://alaskafisheries.noaa.gov/scales/default.htm.
(v) Where will scale inspections be conducted? Scales inspections by inspectors paid by NMFS will be conducted on vessels tied up at docks in Kodiak, Alaska; Dutch Harbor, Alaska; and in the Puget Sound area of Washington State.
(vi) Responsibilities of the vessel owner during a scale inspection. After the vessel owner has installed a model of scale that is on the Regional Administrator's list of scales eligible to be approved for weighing catch at sea, the vessel owner must:
(A) Make the vessel and scale available for inspection by the scale inspector.
(B) Provide a copy of the scale manual supplied by the scale manufacturer to the inspector at the beginning of the inspection.
(C) Transport test weights, test material, and equipment required to perform the test to and from the inspector's vehicle and the location on the vessel where the scale is installed.
(D) Apply test weights to the scale or convey test materials across the scale, if requested by the scale inspector.
(E) Assist the scale inspector in performing the scale inspection and testing.
(vii) Scale inspection report. (A) A scale is approved for use when the scale inspector completes and signs a scale inspection report verifying that the scale meets all of the requirements specified in this paragraph (b)(2) and appendix A to this part.
(B) The scale inspector must provide the original inspection report to the vessel owner and a copy to NMFS.
(C) The vessel owner must either:
( 1 ) Maintain a copy of the report on board when use of the scale is required and make the report available to the observer, NMFS personnel, or an authorized officer, upon request, or;
( 2 ) Display a valid NMFS-sticker on each approved scale.
(D) When in use, an approved scale must also meet the requirements described in paragraphs (b)(3) through (b)(6) of this section.
(3) At-sea scale tests. To verify that the scale meets the MPEs specified in this paragraph (b)(3), the vessel operator must test each scale or scale system used by the vessel to weigh catch at least one time during each calendar day. No more than 24 hours may elapse between tests when use of the scale is required. The vessel owner must ensure that these tests are performed in an accurate and timely manner.
(i) Belt scales and automatic hopper scales. (A) The MPE in the daily at-sea scale tests is plus or minus 3 percent of the known weight of the test material.
(B) Test procedure. The vessel operator must conduct a material test by weighing no less than 400 kg of test material, supplied by the scale manufacturer or approved by a NMFS-authorized scale inspector, on the scale under test. The test material may be run across the scale multiple times in order to total 400 kg; however, no single batch of test material may weigh less than 40 kg. The known weight of the test material must be determined at the time of each scale test by weighing it on a platform scale approved for use under paragraph (b)(7) of this section.
(ii) Platform and hanging scales. (A) The MPE for platform and hanging scales is plus or minus 0.5 percent of the known weight of the test material.
(B) Test weights. Each test weight must have its weight stamped on or otherwise permanently affixed to it. The weight of each test weight must be annually certified by a National Institute of Standards and Technology approved metrology laboratory or approved for continued use by the NMFS authorized inspector at the time of the annual scale inspection. The amount of test weights that must be provided by the vessel owner is specified in paragraphs (b)(3)(ii)(B)( 1 ) and (b)(3)(ii)(B)( 2 ) of this section.
( 1 ) Platform scales used as observer sampling scales or to determine the known weight of test materials. Any combination of test weights that will allow the scale to be tested at 10 kg, 25 kg, and 50 kg.
( 2 ) Scales used to weigh catch. Test weights equal to the largest amount of fish that will be weighed on the scale in one weighment.
(iii) Requirements for all scale tests. (A) Notify the observer at least 15 minutes before the time that the test will be conducted, and conduct the test while the observer is present.
(B) Conduct the scale test by placing the test material or test weights on or across the scale and recording the following information on the at-sea scale test report form:
( 1 ) Vessel name;
( 2 ) Month, day, and year of test;
( 3 ) Time test started to the nearest minute;
( 4 ) Known weight of test material or test weights;
( 5 ) Weight of test material or test weights recorded by scale;
( 6 ) Percent error as determined by subtracting the known weight of the test material or test weights from the weight recorded on the scale, dividing that amount by the known weight of the test material or test weights, and multiplying by 100; and
( 7 ) Signature of vessel operator.
(4) Scale maintenance. The vessel owner must ensure that the vessel operator maintains the scale in proper operating condition throughout its use; that adjustments made to the scale are made so as to bring the performance errors as close as practicable to a zero value; and that no adjustment is made that will cause the scale to weigh fish inaccurately.
(5) Printed reports from the scale (not applicable to observer sampling scales). The vessel owner must ensure that the printed reports are provided as required by this paragraph. Printed reports from the scale must be maintained on board the vessel until the end of the year during which the reports were made and be made available to observers, NMFS personnel, or an authorized officer. In addition, printed reports must be retained by the vessel owner for 3 years after the end of the year during which the printouts were made.
(i) Reports of catch weight and cumulative weight. Reports must be printed at least once every 24 hours when use of the scale is required. Reports must also be printed before any information stored in the scale computer memory is replaced. Scale weights must not be adjusted by the scale operator to account for the perceived weight of water, mud, debris, or other materials. Scale printouts must show:
(A) The vessel name and Federal fisheries or processor permit number;
(B) The haul or set number as recorded in the processor's DCPL (see § 679.5);
(C) The total weight of the haul or set;
(D) The total cumulative weight of all fish or other material weighed on the scale.
(ii) Printed report from the audit trail. The printed report must include the information specified in sections 2.3.1.8, 3.3.1.7, and 4.3.1.8 of appendix A to this part. The printed report must be provided to the authorized scale inspector at each scale inspection and must also be printed at any time upon request of the observer, the scale inspector, NMFS staff, or an authorized officer.
(iii) Printed reports from the calibration log. The vessel operator must print the calibration log on request by NMFS employees or any individual authorized by NMFS. The calibration log must be printed and retained by the vessel owner and operator before any information stored in the scale computer memory is replaced. The calibration log must detail either the prior 1,000 calibrations or all calibrations since the scale electronics were first put into service, whichever is less. The printout from the calibration log must show:
(A) The vessel name and Federal fisheries or processor permit number;
(B) The month, day, and year of the calibration;
(C) The time of the calibration to the nearest minute in A.l.t.;
(D) The weight used to calibrate the scale; and
(E) The magnitude of the calibration in comparison to the prior calibration.
(iv) Printed reports from the fault log. The vessel operator must print the fault log on request by NMFS employees or any individual authorized by NMFS. The fault log must be printed and retained by the vessel owner and operator before any information stored in the scale computer memory is replaced. The fault log must detail either the prior 1,000 faults and startups, or all faults and startups since the scale electronics were first put into service, whichever is less. A fault, for the purposes of the fault log, is any condition other than underflow detected by the scale electronics that could affect the metrological accuracy of the scale. The printout from the fault log must show:
(A) The vessel name and Federal fisheries or processor permit number;
(B) The month, day, year, and time of each startup to the nearest minute in A.l.t.;
(C) The month, day, year, and time that each fault began to the nearest minute in A.l.t.;
(D) The month, day, year, and time that each fault was resolved to the nearest minute in A.l.t.
(6) Scale installation requirements. The scale display must be readable from the location where the observer collects unsorted catch unless otherwise authorized by a NMFS-authorized scale inspector.
(7) Platform scales used as observer sampling scales or to determine the known weight of test materials. Platform scales used only as observer sampling scales or to determine the known weight of fish for a material test of another scale are required to meet all of the requirements of paragraph (b) of this section and appendix A to this part except sections 4.3.1 and 4.3.1.5 of appendix A to this part (printer) or section 4.3.1.8 (audit trail) of appendix A to this part.
(8) Video monitoring for scales used by the vessel crew to weigh catch. The owner and operator of a vessel fishing for groundfish who are required to weigh catch under the regulations in this section must provide and maintain a NMFS-approved video monitoring system as specified in paragraph (e) of this section. Additionally, the system must:
(i) Provide sufficient resolution and field of view to monitor: All areas where catch enters the scale, moves across the scale and leaves the scale; any access point to the scale from which the scale may be adjusted or modified by vessel crew while the vessel is at sea; and the scale display and the indicator for the scale operating in a fault state.
(ii) Record and retain video for all periods when catch that must be weighed is on board the vessel.
(c) Scales approved by the State of Alaska. Scale requirements in this paragraph are in addition to those requirements set forth by the State of Alaska, and nothing in this paragraph may be construed to reduce or supersede the authority of the State to regulate, test, or approve scales within the State of Alaska or its territorial sea. Scales used to weigh groundfish catch that are also required to be approved by the State of Alaska under Alaska Statute 45.75 must meet the following requirements:
(1) Verification of approval. The scale must display a valid State of Alaska sticker indicating that the scale was inspected and approved within the previous 12 months.
(2) Visibility. The owner and manager of the processor must ensure that the scale and scale display are visible simultaneously to the observer. Observers, NMFS personnel, or an authorized officer must be allowed to observe the weighing of fish on the scale and be allowed to read the scale display at all times.
(3) Printed scale weights. (i) The owner and manager of the processor must ensure that printouts of the scale weight of each haul, set, or delivery are made available to observers, NMFS personnel, or an authorized officer at the time printouts are generated and thereafter upon request for the duration of the fishing year. The owner and manager must retain scale printouts as records as specified in § 679.5(a)(5)(ii).
(ii) A scale identified in a CMCP (see paragraph (g) of this section) must produce a printed record for each delivery, or portion of a delivery, weighed on that scale. If approved by NMFS as part of the CMCP, scales not designed for automatic bulk weighing may be exempted from part or all of the printed record requirements. The printed record must include:
(A) The processor name;
(B) The weight of each load in the weighing cycle;
(C) The total weight of fish in each delivery, or portion of the delivery that was weighed on that scale;
(D) The total cumulative weight of all fish or other material weighed on the scale since the last annual inspection;
(E) The date and time the information is printed;
(F) The name and ADF&G number of the vessel making the delivery. This information may be written on the scale printout in pen by the scale operator at the time of delivery.
(4) Inseason scale testing. Scales identified in an approved CMCP (see paragraph (g) of this section) must be tested by plant personnel in accordance with the CMCP when testing is requested by NMFS-staff or NMFS-authorized personnel. Plant personnel must be given no less than 20 minutes notice that a scale is to be tested and no testing may be requested if a scale test has been requested and the scale has been found to be accurate within the last 24 hours.
(i) How does a scale pass an inseason test? To pass an inseason test, NMFS staff or NMFS-authorized personnel will verify that the scale display and printed information are clear and easily read under all conditions of normal operation, weight values are visible on the display until the value is printed, and the scale does not exceed the maximum permissible errors specified below:
(ii) How much weight is required to do an inseason scale test? Scales must be tested with the amount and type of weight specified for each scale type in the following tables:
(A) Automatic hopper 0 to 150 kg (0 to 300 lb) capacity.
(B) Automatic hopper >150 kg (300 lb) capacity.
(C) Platform or flatbed 0 to 150 kg (0 to 300 lb) capacity.
(D) Platform or flatbead >150 kg (300 lb) capacity.
(E) Observer sampling scale >50 kg capacity.
(iii) Certified test weights. Each test weight used for inseason scale testing must have its weight stamped on or otherwise permanently affixed to it. The weight of each test weight must be certified by a National Institute of Standards and Technology approved metrology laboratory every 2 years. An observer platform scale must be provided with sufficient test weights to test the scale at 10 kg, 25 kg, and 50 kg. All other scales identified in an approved CMCP must be provided with sufficient test weights to test the scale as described in this paragraph (c)(4) of this section. Test weights for observer platform scales must be denominated in kilograms. Test weights for other scales may be denominated in pounds.
(iv) Other test material. When permitted in paragraph (c)(4)(ii) of this section, a scale may be tested with test material other than certified test weights. This material must be weighed on an accurate observer platform scale at the time of each use.
(v) Observer sampling scales. Platform scales used as observer sampling scales must:
(A) Have a capacity of no less than 50 kg;
(B) Have a division size of no less than 5 g;
(C) Indicate weight in kilograms and decimal subdivisions; and
(D) Be accurate within plus or minus 0.5 percent when tested at 10 kg, 25 kg, and 50 kg by NMFS staff or an observer.
(d) Observer sampling station —(1) Accessibility. All the equipment required for an observer sampling station must be available to the observer at all times while a sampling station is required and the observer is aboard the vessel, except that the observer sampling scale may be used by vessel personnel to conduct material tests of the scale used to weigh catch under paragraph (b)(3) of this section, as long as the use of the observer's sampling scale by others does not interfere with the observer's sampling duties.
(2) Location —(i) Motherships and catcher/processors or catcher vessels using trawl gear. The observer sampling station must be located within 4 m of the location from which the observer collects unsorted catch. Clear, unobstructed passage must be provided between the observer sampling station and the location where the observer collects unsorted catch. When standing where unsorted catch is sampled, the observer must be able to see that no fish have been removed between the bin and the scale used to weigh total catch.
(ii) Vessels using nontrawl gear. The observer sampling station must be located within 5 m of the collection area, described at § 679.28(d)(8)(ii)(B) of this section, unless any location within this distance is unsafe for the observer. Clear, unobstructed passage must be provided between the observer sampling station and the collection area. Access must be provided to the tally station, described at § 679.28(d)(8)(ii)(A) of this section. NMFS may approve an alternative location if the vessel owner submits a written proposal describing the alternative location and the reasons why a location within 5 m of where fish are brought on board the vessel is unsafe, and the proposed observer sampling station meets all other applicable requirements of this section.
(iii) What is clear, unobstructed passage? Where clear and unobstructed passage is required, passageways must be at least 65 cm wide at their narrowest point, be free of tripping hazards, and be at least 1.8 m high. Doorways or companionways must be free of obstacles.
(3) Minimum work space. The observer must have a working area for sampling of at least 4.5 square meters. This working area includes the observer's sampling table. The observer must be able to stand upright and have a work area at least 0.9 m deep in the area in front of the table and scale.
(4) Table. The observer sampling station must include a table at least 0.6 m deep, 1.2 m wide and 0.9 m high and no more than 1.1 m high. The entire surface area of the table must be available for use by the observer. Any area used for the observer sampling scale is in addition to the minimum space requirements for the table. The observer's sampling table must be secured to the floor or wall.
(5) Observer sampling scale. The observer sampling station must include a NMFS-approved platform scale with a capacity of at least 50 kg located within 1 m of the observer's sampling table. The scale must be mounted so that the weighing surface is no more than 0.7 m above the floor. The scale must be approved by NMFS under paragraph (b) of this section and must meet the maximum permissible error requirement specified in paragraph (b)(3)(ii)(A) of this section when tested by the observer.
(6) Other requirements. The sampling station must include flooring that prevents slipping and drains well (grating or other material where appropriate), adequate lighting, and a hose that supplies fresh or sea water to the observer.
(7) Catcher/processors and motherships in the BS pollock fishery, including pollock CDQ. Catcher/processors directed fishing for pollock in the BS or motherships taking deliveries from vessels directed fishing for pollock in the BS also must meet the following requirements:
(i) A salmon storage container must be located adjacent to the observer sampling station;
(ii) The salmon storage container must remain in view of the observer at the observer sampling station at all times during the sorting of each haul; and
(iii) The salmon storage container must be at least 1.5 cubic meters.
(8) Requirements for sampling catch —(i) Motherships and catcher/processors using trawl gear. The conveyor belt conveying unsorted catch must have a removable board to allow fish to be diverted from the belt directly into the observer's sampling baskets. The diverter board must be located downstream of the scale used to weigh total catch so that the observer can use this scale to weigh large samples. At least 1 m of accessible belt space, located downstream of the scale used to weigh total catch, must be available for the observer's use when sampling a haul.
(ii) Catcher/processors using non-trawl gear. In addition to the sampling station, vessels using non-trawl gear must provide:
(A) Tally station. A place where the observer can see the gear as it leaves the water and can count and identify fish. It must be within 5 m of where fish are brought aboard the vessel and in a location where the observer is not in danger of falling overboard or being injured during gear retrieval. Where exposed to wind or seas, it must be equipped with a railing at least 1.0 m high, grating or other non-slip material, and adequate lighting.
(B) Collection area. A collection area is a place where the observer, or vessel crew under the observer's guidance, collects fish as they come off the line or are removed from pots. It must be located where the observer can see the gear when it leaves the water. Where exposed to wind or seas, it must be equipped with a railing at least 1.0 m high and grating or other non-slip material.
(9) Observer deck sampling station. Motherships and catcher/processors subject to § 679.102 must be equipped with a deck sampling station that meets the following requirements:
(i) Accessibility. All equipment required for an observer deck sampling station must be available to the observer at all times when halibut deck sorting.
(ii) Location. The observer deck sampling station must be located adjacent to the point of discard.
(iii) Work space. The observer must be able to stand upright in front of the table.
(iv) Table —(A) Size. The observer deck sampling station must include a table at least 0.6 m deep, 1.2 m wide, and 0.9 m high, and no more than 1.1 m high. The entire surface area of the table must be available for use by the observer. The table must be secured to the deck when halibut deck sorting. The table must be constructed to prevent fish from sliding off.
(B) Length measuring device. The table must have a NMFS-approved length measuring device secured to the surface of the table.
(v) Single pathway. There must be a single pathway for halibut to be conveyed to the observer deck sampling station. All halibut sorted on deck must pass over the observer table. There must be a single point of discard after the observer deck sampling station visible to the observer. Halibut too large to be lifted to the table may be measured on deck.
(10) Inspection of the observer sampling station. Each observer sampling station must be inspected and approved by NMFS prior to its use for the first time and then once each year within 12 months of the most recent inspection with the following exceptions: If the observer sampling station is moved or if the space or equipment available to the observer is reduced or removed when use of the observer sampling station is required, the Observer Sampling Station Inspection Report issued under this section is no longer valid, and the observer sampling station must be reinspected and approved by NMFS. Inspection of the observer sampling station is in addition to inspection of the at-sea scales by an authorized scale inspector required at paragraph (b)(2) of this section.
(i) How does a vessel owner arrange for an observer sampling station inspection? The vessel owner must submit an Inspection Request for Observer Sampling Station with all the information fields accurately filled in to NMFS by emailing ( station.inspections@noaa.gov ), or completing the online request form, at least 10 working days in advance of the requested date of inspection. The request form is available on the NMFS Alaska Region website.
(ii) Where will Observer sampling station inspections be conducted? Inspections will be conducted on vessels tied up at docks in Kodiak, Alaska, Dutch Harbor, Alaska, and in the Puget Sound area of Washington State.
(iii) Observer Sampling Station Inspection Report. An Observer Sampling Station Inspection Report will be issued by NMFS to the vessel owner if the observer sampling station meets the requirements in this paragraph (d). The vessel owner must maintain a current Observer Sampling Station Inspection Report on board the vessel at all times when the vessel is required to provide an observer sampling station approved for use under this paragraph (d). The Observer Sampling Station Inspection Report must be made available to the observer, NMFS personnel, or to an authorized officer upon request.
(A) Deck Sorting. An Observer Sampling Station Inspection Report issued to the owner of a vessel participating in halibut deck sorting as described at § 679.102 will indicate the time limit for halibut deck sorting activities. Considerations used by NMFS to determine the time limit for halibut deck sorting include, but are not limited to, deck space and configuration, and best available halibut viability information.
(B) [Reserved].
(e) Video Monitoring System Requirements —(1) What requirements must a vessel owner and operator comply with for a video monitoring system? (i) The system must have sufficient data storage capacity to store all video data from an entire trip. Each frame of stored video data must record a time/date stamp in Alaska local time (A.l.t.).
(ii) The system must include at least one external USB port or other removable storage device approved by NMFS.
(iii) The system must output video files to an open source format or the vessel owner must provide software capable of converting the output video file to an open source format or commercial software must be available for converting the output video file to an open source format.
(iv) Color cameras must have at a minimum 470 TV lines of resolution, auto-iris capabilities, and output color video to the recording device with the ability to revert to black and white video output when light levels become too low for color recognition.
(v) The video data must be maintained by the vessel operator and made available on request by NMFS employees, or any individual authorized by NMFS. The data must be retained on board the vessel for no less than 120 days after the date the video is recorded, unless NMFS has notified the vessel operator that the video data may be retained for less than this 120-day period.
(vi) The system must record at a speed of no less than 5 unique frames per second at all times when the use of a video monitoring system is required.
(vii) NMFS employees, or any individual authorized by NMFS, must be able to view any video footage from any point in the trip using a 16-bit or better color monitor that can display all camera views simultaneously and must be assisted by crew knowledgeable in the operation of the system.
(viii) Unless exempted under paragraph (D) below, a 16-bit or better color monitor must be provided within the observer sampling station or at the location where the observer sorts and weighs samples. The monitor:
(A) Must have the capacity to display all camera views simultaneously;
(B) Must be operating when the use of a video monitoring system is required;
(C) Must be securely mounted at or near eye level;
(D) Is not applicable to longline C/Ps subject to § 679.100(b)(2).
(2) How does a vessel owner or operator arrange for NMFS to conduct a video monitoring system inspection? The vessel owner or operator must submit an Inspection Request for a Video Monitoring System to NMFS with all information fields accurately filled in at least 10 working days in advance of the requested date of inspection. The request form is available on the NMFS Alaska Region Web site ( https://alaskafisheries.noaa.gov ).
(3) What additional information is required for a video monitoring system inspection? (i) A diagram drawn to scale showing all sorting locations, the location of the motion-compensated scale, the location of each camera and its coverage area, and the location of any additional video equipment must be submitted with the Inspection Request for a Video Monitoring System form. Diagrams for C/Ps and motherships in the BSAI pollock fishery, including pollock CDQ, must include the location of the salmon storage container.
(ii) Any additional information requested by the Regional Administrator.
(4) Where will NMFS conduct video monitoring and bin monitoring system inspections? Inspections will be conducted on vessels tied to docks at Dutch Harbor, Alaska; Kodiak, Alaska; and in the Puget Sound area of Washington State.
(5) A video monitoring system is approved for use when NMFS employees, or any individual authorized by NMFS, completes and signs a Video Monitoring Inspection Report verifying that the video system meets all applicable requirements of this section.
(6) A vessel owner or operator must maintain a current NMFS-issued Video Monitoring System Inspection Report on board the vessel at all times the vessel is required to provide an approved video monitoring system. The Video Monitoring System Inspection Report must be made available to the observer, NMFS personnel, or to an authorized officer upon request.
(7) How does a vessel owner make a change to the video monitoring system? Any change to the video monitoring system that would affect the system's functionality must be submitted by a vessel owner to, and be approved by, the Regional Administrator in writing before that change is made.
(f) Vessel Monitoring System (VMS) Requirements —(1) What is a VMS? A VMS consists of a NMFS-approved VMS transmitter that automatically determines the vessels position and transmits it to a NMFS-approved communications service provider. The communications service provider receives the transmission and relays it to NMFS.
(2) How are VMS transmitters and communications service providers approved by NMFS? (i) NMFS publishes type approval specifications for VMS components in the Federal Register.
(ii) Transmitter manufacturers or communication service providers may submit products or services to NMFS for evaluation based on the published specifications.
(iii) NMFS will publish a list of NMFS-approved transmitters and communication service providers in the Federal Register. As necessary, NMFS will publish amendments to the list of approved components in the Federal Register.
(3) What are the vessel owner's responsibilities? If you are a vessel owner that must participate in a VMS, you or your crew must:
(i) Obtain a NMFS-approved VMS transmitter with transmission capabilities required for the areas of vessel operation and have it installed onboard your vessel in accordance with the instructions provided by NMFS. You may get a copy of the VMS installation and operation instructions from the Regional Administrator upon request.
(ii) Activate the VMS transmitter and receive confirmation from NMFS that the VMS transmissions are being received before engaging in operations when a VMS is required.
(iii) Continue the VMS transmissions until no longer engaged in operations requiring VMS.
(iv) Stop fishing immediately if:
(A) Informed by NMFS staff or an authorized officer that NMFS is not receiving position reports from the VMS transmitter, or
(B) The vessel operator determines that the VMS is not transmitting properly.
(v) Make the VMS transmitter available for inspection by NMFS personnel, observers or an authorized officer.
(vi) Ensure that the VMS transmitter is not tampered with, disabled, destroyed or operated improperly.
(vii) Pay all charges levied by the communication service provider.
(4) What must the vessel owner do before activating a VMS transmitter for the first time? If you are a vessel owner who must use a VMS and you are activating a VMS transmitter for the first time, you must:
(i) Register the vessel's VMS unit with an appropriate service provider;
(ii) [Reserved]
(iii) Call OLE at 907-586-7225, Monday through Friday, between the hours of 0800 hours, A.l.t., and 1630 hours, A.l.t., at least 72 hours before leaving port and receive confirmation that the transmissions are being received.
(5) What must the vessel owner do when the vessel replaces a VMS transmitter? A vessel owner who must use a VMS and who intends to replace a transmitter, must follow the reporting and confirmation procedure for the replacement transmitter, as described in paragraph (f)(4) of this section.
(6) When must the VMS transmitter be transmitting? Your vessel's transmitter must be transmitting if:
(i) You operate a vessel in any reporting area (see definitions at § 679.2) off Alaska while any fishery requiring VMS, for which the vessel has a species and gear endorsement on its Federal Fisheries Permit under § 679.4(b), is open.
(ii) You operate a vessel required to be federally permitted in reporting areas located in the Aleutian Islands subarea or operate a federally permitted vessel in adjacent State waters;
(iii) You operate a vessel required to be Federally permitted with non-pelagic trawl or dredge gear onboard in reporting areas located in the GOA or operate a federally permitted vessel with non-pelagic trawl or dredge gear onboard in adjacent State waters;
(iv) When that vessel is required to use functioning VMS equipment in the Rockfish Program as described in § 679.7(n)(3);
(v) You operate a vessel in federal reporting areas 610, 620, or 630, and receive and process groundfish from other vessels;
(vi) You operate an Amendment 80 catcher/processor (see § 679.5(s));
(vii) You are fishing for IFQ sablefish in the Bering Sea or Aleutian Islands (see § 679.42(k));
(viii) You are fishing for IFQ sablefish in the GOA using longline pot gear (see § 679.42(l)) or fishing for IFQ or CDQ halibut or CDQ sablefish in the BSAI using pot gear (see § 679.42(m)); or
(ix) You are required under the Crab Rationalization Program regulations at 50 CFR 680.23(d).
(x) You operate a vessel named, or required to be named, on an SFFP issued under § 679.114 in the waters of Cook Inlet during a calendar day when directed fishing for salmon using drift gillnet gear is open in the Cook Inlet EEZ Area and have drift gillnet gear on board or deployed.
(7) What additional requirements does an operator have if trawling in the Aleutian Islands reporting areas? Operators of vessels named on a Federal Fisheries Permit under § 679.4(b), and that are using trawl gear in the Aleutian Islands reporting areas to harvest groundfish that is required to be deducted from a Federal TAC specified at § 679.20, must set their VMS to transmit the vessel location at least 10 times per hour.
(g) Catch monitoring and control plan requirements (CMCP) —(1) What is a CMCP? A CMCP is a plan submitted by the owner and manager of a processing plant, and approved by NMFS, detailing how the processor will meet the applicable catch monitoring and control standards detailed in paragraphs (g)(7) through (10) of this section.
(2) Who is required to prepare and submit a CMCP for approval? The owner and manager of shoreside or stationary floating processors receiving fish harvested in the following fisheries must prepare, submit, and have approved a CMCP prior to the receipt of fish harvested in these fisheries:
(i) AFA and CDQ pollock,
(ii) AI directed pollock,
(iii) Rockfish Program, unless those fish are harvested under the rockfish entry level longline fishery as described under § 679.83.
(iv) Any shoreside processor or stationary floating processor receiving any delivery from catcher vessels or tender vessels in the trawl EM category as defined at § 679.2.
(3) How is a CMCP approved by NMFS? NMFS will approve a CMCP if it meets all the applicable requirements specified in paragraphs (g)(7) through (10) of this section. The processor may be inspected by NMFS prior to approval of the CMCP to ensure that the processor conforms to the elements addressed in the CMCP. NMFS will complete its review of the CMCP within 14 working days of receipt. If NMFS disapproves a CMCP, the processor owner or manager may resubmit a revised CMCP or file an administrative appeal as set forth under the administrative appeals procedures described at § 679.43.
(4) How is a CMCP inspection arranged? The processor must submit a request for a CMCP inspection. The time and place of a CMCP inspection may be arranged by submitting a written request to NMFS, Alaska Region, or other method of electronic communication designated by NMFS. NMFS will review the inspection request within 10 working days after receiving a complete application for an inspection. The inspection request must include:
(i) Name of the person submitting the application and the date of the application;
(ii) Address, telephone number, and email address of the person submitting the application; and
(iii) A proposed CMCP detailing how the processor will meet each of the applicable performance standards in paragraphs (g)(7) through (10) of this section.
(5) For how long is a CMCP approved? NMFS will approve a CMCP for up to 1 year if it meets the applicable performance standards specified in paragraphs (g)(7) through (10) of this section. An owner or manager must notify NMFS in writing if changes are made in plant operations or layout that do not conform to the CMCP.
(6) How do I make changes to my CMCP? An owner and manager may change an approved CMCP by submitting a CMCP addendum to NMFS. NMFS will approve the modified CMCP if it continues to meet the applicable performance standards specified in paragraphs (g)(7) through (10) of this section. Depending on the nature and magnitude of the change requested, NMFS may require a CMCP inspection as described in paragraph (g)(3) of this section. A CMCP addendum must contain:
(i) Name of the person submitting the addendum;
(ii) Address, telephone number, and email address of the person submitting the addendum; and
(iii) A complete description of the proposed CMCP change.
(7) Catch monitoring and control standards. For all shoreside processors or stationary floating processors accepting any delivery from the fisheries listed in paragraph (g)(2) of this section:
(i) Catch sorting and weighing requirements. All groundfish delivered to the plant must be sorted and weighed by species. The CMCP must detail the amount and location of space for sorting catch, the number of staff assigned to catch sorting and the maximum rate that catch will flow through the sorting area.
(ii) Scales used for weighing groundfish. The CMCP must identify by serial number each scale used to weigh groundfish and describe the rational for its use.
(iii) Scale testing procedures. Scales identified in the CMCP must be accurate within the limits specified in paragraph (c)(4)(i) of this section. For each scale identified in the CMCP a testing plan must be developed that:
(A) Describes the procedure the plant will use to test the scale;
(B) Lists the test weights and equipment required to test the scale;
(C) Lists where the test weights and equipment will be stored; and
(D) Lists the plant personnel responsible for conducting the scale testing.
(iv) Printed record. The owner and manager must ensure that the scale produces a complete and accurate printed record of the weight of each species in a delivery. All of the groundfish in a delivery must be weighed on a scale capable of producing a complete printed record as described in paragraph (c)(3) of this section. However, NMFS may exempt scales not designed for automatic bulk weighing from some or all of the printed record requirements if the CMCP identifies any scale that cannot produce a complete printed record, states how the processor will use the scale, and states how the plant intends to produce a complete record of the total weight of each delivery.
(v) Delivery point. Each CMCP must identify a single delivery point. The delivery point is the first location where fish removed from a delivering catcher vessel can be sorted or diverted to more than one location. If the catch is pumped from the hold of a catcher vessel or a codend, the delivery point normally will be the location where the pump first discharges the catch. If catch is removed from a vessel by brailing, the delivery point normally will be the bin or belt where the brailer discharges the catch. The CMCP must describe how the catch will be offloaded at the delivery point.
(vi) Observation area. Each CMCP must designate an observation area. The observation area is a location designated on the CMCP where an individual may monitor the flow of fish during a delivery. The owner and manager must ensure that the observation area meets the following standards:
(A) Access to the observation area. The observation area must be freely accessible to NMFS staff or NMFS-authorized personnel at any time a valid CMCP is required.
(B) Monitoring the flow of fish. From the observation area, an individual must have an unobstructed view or otherwise be able to monitor the entire flow of fish between the delivery point and a location where all sorting has taken place and each species has been weighed.
(vii) Scale Drawing of the Plant. The CMCP must be accompanied by a scale drawing of the plant showing:
(A) The delivery point;
(B) Flow of fish;
(C) The observation area;
(D) The observer sampling station described in paragraph (g)(7)(ix) of this section;
(E) The location of each scale used to weigh catch;
(F) Each location where catch is sorted including the last location where sorting could occur; and
(G) Information to meet other requirements of this part, if requested by NMFS.
(viii) Reasonable assistance. Shoreside processors and stationary floating processors must provide reasonable assistance as described in § 679.51(e)(2)(vi), to observer(s) and to the Rockfish CMCP specialist. The CMCP must identify staff responsible for ensuring reasonable assistance is provided.
(ix) Observer sampling station. Each CMCP, except for the Rockfish Program, must identify and include an observer(s) sampling station for the exclusive use of observer(s). Unless otherwise approved by NMFS, the sampling station must meet the following criteria:
(A) Location of observer sampling station. ( 1 ) The observer sampling station must be located in an area protected from the weather where the observer has access to unsorted catch.
( 2 ) The observer sampling station must be adjacent to the location where salmon will be counted and biological samples or scientific data are collected.
( 3 ) Clear, unobstructed passage must be provided between the observer sampling station and observer sample collection point. The observer(s) must be able to monitor the collection and transport of unsorted catch to the observer sampling station.
(B) Proximity of observer sampling station. The observer sampling station must be located within 4 meters of the observer sample collection point without encountering safety hazards, or, reasonable assistance must be given to move samples into the observer sampling station upon request.
(C) Minimum workspace requirements. The observer sampling station must include: A working area of at least 4.5 square meters. The observer(s) must be able to stand upright and have a sampling area at least 0.9 meters deep in front of the table and scale. The workspace must include flooring that prevents slipping and drains well, adequate lighting, and a hose that supplies fresh or sea water to the observer.
(D) Clear, unobstructed passage. A clear and unobstructed passage is required between the observer sample collection point and sampling station, and within the observer sampling station. Passageways must be at least 65 centimeters wide at their narrowest point, and be free of tripping or head bumping hazards.
(E) Table. The observer sampling station must include a table at least 0.6 meters deep, 1.2 meters wide, 0.9 meters high, and no more than 1.1 meters high. The entire surface area of the table must be available for use by the observer(s). Any area used for the observer sampling scale is in addition to the minimum space requirements for the table specified at paragraph (g)(7)(ix)(B) of this section. The observer sampling table must be secure, and stable.
(F) Observer Platform scale. The observer sampling station must include a platform scale as described in paragraph (c)(4) of this section, and must meet the requirements specified in paragraph (c)(3)(v) of this section when tested by the observer. The platform scale must be located within 1 meter of the observer sampling table. The scale must be mounted so that the weighing surface is no more than 0.7 meters above the floor.
(G) Lockable cabinet. The observer work station must include a secure and lockable cabinet or locker of at least 0.5 cubic meters, and must be for the exclusive use of the observer(s).
(x) Communication with observer. The CMCP, except for the Rockfish Program, must describe what communication equipment such as radios or cellular phones is used to facilitate communications within the plant. The plant owner must ensure that the plant manager provides the observer(s) with the same communications equipment used by plant staff. The plant owner or plant manager must communicate the following information to the observer(s), including:
(A) Daily schedule of expected landings;
(B) Vessel name;
(C) Identify which management areas the vessel was operating in;
(D) If the delivering vessel is operating under the trawl EM category;
(E) Estimated tonnage onboard the vessel;
(F) If there is a deckload;
(G) Estimated start time of each vessel offload;
(H) Estimated time to complete the offload;
(I) If the vessel offload will be interrupted for any reason; and
(J) Any other information required by the applicable CMCP or VMP.
(xi) Processor liaison. The CMCP must designate a processor liaison. The processor liaison is responsible for:
(A) Orienting new observer(s) to the plant and providing a copy of the NMFS-approved CMCP and any subsequent addendums or revisions; and
(B) Assisting in the resolution of observer(s) concerns.
(8) Rockfish Program. In addition to compliance with requirements set forth at paragraph (g)(7) of this section, all shoreside processors or stationary floating processors receiving deliveries of groundfish harvested under the authority of a rockfish CQ permit must:
(i) Rockfish CMCP specialist notification. Describe how the Rockfish CMCP specialist will be notified of deliveries of groundfish harvested under the authority of a rockfish CQ permit.
(ii) [Reserved]
(9) Processors receiving AFA pollock, CDQ pollock, and trawl EM category deliveries. In addition to compliance with requirements set forth at paragraph (g)(7) of this section, all shoreside processors and stationary floating processors receiving deliveries from the fisheries described in paragraphs (g)(2)(i),(ii), and (iv) of this section, must comply with the following:
(i) Salmon storage container. (A) A salmon storage container must be designated for the exclusive purpose of storing salmon during an offload;
(B) The observer(s) must have a clear, unobstructed view of the salmon storage container to ensure no salmon of any species are removed without the observer's knowledge;
(C) The CMCP must describe the process of sorting and storing salmon; and
(D) The scale drawing of the plant must include the location of the salmon storage container.
(ii) Salmon sorting and handling practices. (A) Sort and transport all salmon to the salmon storage container identified in the CMCP (see paragraphs (g)(7)(vi)(C) and (g)(7)(x)(F) of this section). The salmon must remain in that salmon storage container and within the view of the observer(s) at all times during the offload;
(B) If, at any point during the offload, salmon are too numerous to be contained in the salmon storage container, cease the offload and all sorting and give the observer(s) the opportunity to count and collect scientific data or biological samples from all salmon in the storage bin. The counted salmon then must be removed from the area by plant personnel in the presence of the observer(s);
(C) At the completion of the offload, give the observer(s) the opportunity to count the salmon and collect scientific data or biological samples;
(D) When receiving deliveries of pollock from the Bering Sea or CDQ pollock fisheries, give the observer(s) the opportunity to complete the count of salmon and the collection of scientific data or biological samples from the previous offload of catch before sorting of the next offload of any catch may begin. When the observer(s) has completed all counting and sampling duties for the offload, plant personnel must remove the salmon in the presence of the observer(s), from the salmon storage container and location where salmon are counted and biological samples or scientific data are collected; and
(E) Regarding deliveries of pollock from the Gulf of Alaska or Aleutian Islands, the observer(s) must be given the opportunity to complete the count of salmon and the collection of scientific data or biological samples from all offloads selected for monitoring. When the observer(s) has completed all counting and sampling duties for the offload, plant personnel must remove the salmon in the presence of the observer(s), from the salmon storage container and location where salmon are counted and biological samples or scientific data are collected.
(iii) Observer sample collection point. The observer sample collection point is the location where the observer collects unsorted catch.
(A) The observer sample collection point (see paragraph (g)(7)(ix)(A)( 3 ) of this section) must have a diverter mechanism to allow fish to be diverted from the belt directly into the observer's sampling baskets. The location and design of the diverter mechanism must be described in the CMCP; and
(B) The scale drawing of the plant, specified at paragraph (g)(7)(vii) of this section, must include the location of the observer sample collection point.
(iv) Observer sampling scales and test weights. (A) Identify by serial number each observer sampling scale in the CMCP;
(B) Provide observer sampling scales that are accurate and within the limits specified in paragraph (c)(4)(v) of this section;
(C) Test weights must be made available for the observer(s) use, be kept in good condition, be made of stainless steel or other corrosion-resistant material, and must meet requirements specified in paragraph (c)(4)(iii) of this section;
(D) List the serial numbers of the test weights to be used to test the observer sampling scale in the CMCP; and
(E) The CMCP must identify where the test weights will be stored. Test weights must be stored within the observer sampling station or reasonable assistance must be provided upon observer(s) request to move the weights from the storage location to the observer sampling scale.
(10) AFA pollock and CDQ pollock. In addition to paragraphs (g)(7) and (9) of this section, all shoreside processors and stationary floating processors accepting deliveries described in paragraph (g)(2)(i) of this section have the following additional requirements:
(i) Ensure no salmon of any species pass beyond the last point where sorting of fish occurs, as identified in the scale drawing of the plant, paragraph (g)(7)(vii) of this section, in the CMCP;
(ii) The CMCP must describe the process that will be used to sort salmon, including the procedures for handling salmon that have passed beyond the last point where sorting of fish occurs; and
(iii) Meet all salmon handling requirements as described in (g)(9) of this section.
(h) ELB software —(1) How do I get my ELB software approved by NMFS? —(i) Specifications. NMFS will provide specifications for ELB software upon request. Interested parties may contact NMFS by mail at NMFS Alaska Region, Sustainable Fisheries Division, Catch Accounting/Data Quality, P.O. Box 21668, Juneau, AK 99802-1668; by telephone at 907-586-7228. The four types of ELB software are:
(A) Catcher vessel longline or pot gear (see § 679.5(c)(3));
(B) Catcher/processor longline or pot gear (see § 679.5(c)(3));
(C) Catcher vessel trawl gear (see § 679.5(c)(4)); and
(D) Catcher/processor trawl gear (see § 679.5(c)(4)).
(ii) ELB submittal package. A vendor or developer wishing to have an ELB approved by NMFS must submit:
(A) A fully operational test copy of the software; and
(B) An application for ELB-approval giving the following information (see paragraphs (h)(1)(ii)(B)( 1 ) through ( 3 ) of this section):
( 1 ) Company, contact person, address, telephone number, and fax number for the company developing the software;
( 2 ) Name and type of software; and
( 3 ) Printed name and signature of individual submitting the software for approval.
(C) Copies of all manuals and documentation for the software.
(iii) ELB approval. NMFS will approve ELB software within 60 working days of receipt of all required information if the software meets the following standards in paragraphs (h)(1)(iii)(A) through (H) of this section):
(A) Has fields for the entry of all information required for a paper DFL or DCPL as described in § 679.5(c)(3) and (4), as appropriate.
(B) The software must automatically time and date stamp each printed copy of the ELB logsheet and ELB discard report and clearly identify the first printed copy as an original. If any changes are made to the data in the ELB, subsequent printed copies must clearly be identified as revised. The software must be designed to prevent the operator from overriding this feature.
(C) The software must export data as an ASCII comma delimited text file, xml file, or other format approved by NMFS.
(D) The software must integrate with the vessel's global positioning system (GPS) to allow vessel location fields to be completed automatically.
(E) When the software is started, it must clearly show the software version number.
(F) The software must be designed to facilitate the transfer of an export file to NMFS as an email attachment.
(G) The software must be designed to ensure that an operator can comply with the requirements for ELB use as described in § 679.5(f).
(H) The software must include sufficient data validation capability to prevent a submitter from accidentally transmitting a data file or printing an ELB logsheet that is incomplete or contains clearly erroneous data.
(2) What if I need to make changes to NMFS-approved ELB software? —(i) NMFS-instigated changes. NMFS will provide the developer with information that affects the ELB software as soon as it is available for distribution, e.g., changes in species codes or product codes.
(ii) Developer-instigated changes. The developer must submit a copy of the changed software along with documentation describing the need for the change to NMFS for review and approval as described in paragraph (h)(1)(ii) of this section. NMFS will review and approve the new version according to the guidelines set forth in paragraph (h)(1)(iii) of this section.
(iii) NMFS-approved ELB changes. If changes to ELB software are approved by NMFS, the developer must:
(A) Give the revised software a new version number;
(B) Notify all known ELB users of the software that a new version is available; and
(C) Ensure that the ELB users are provided with a revised copy within 15 days of notification.
(i) Bin monitoring —(1) Bin monitoring standards. The vessel owner or operator must comply with the requirements specified in paragraph (i)(1)(i) of this section unless the vessel owner or operator has requested, and NMFS has approved, the video monitoring option described at paragraph (i)(1)(ii) of this section.
(i) Option 1—No crew in bin or tank. No crew may enter any bin or tank preceding the point where the observer samples unsorted catch, unless:
(A) The flow of fish has been stopped between the tank and the location where the observer samples unsorted catch;
(B) All catch has been cleared from all locations between the tank and the location where the observer samples unsorted catch;
(C) The observer has been given notice that the vessel crew must enter the tank; and either
(D) The observer is given the opportunity to observe the activities of the person(s) in the tank; or
(E) The observer informs the vessel operator, or his designee, that all sampling has been completed for a given haul, in which case crew may enter a tank containing fish from that haul without stopping the flow of fish or clearing catch between the tank and the observer sampling station.
(ii) Option 2—Video monitoring system option. A vessel owner and operator must provide and maintain a NMFS-approved video monitoring system as specified in paragraph (e) of this section. Additionally, the vessel owner and operator must ensure that the system:
(A) Records and retains all video for all periods when fish are inside the bin; and
(B) Provides sufficient resolution and field of view to see crew activities from any location within the tank where crew could be located.
(2) Who must have a bin monitoring option inspection? A vessel owner or operator choosing to operate under the video option (option 2) in paragraph (i)(1)(ii) of this section must receive an annual bin monitoring option inspection.
(3) How does a vessel owner arrange for a bin monitoring option inspection? The owner must submit an Inspection Request for Bin Monitoring to NMFS with all the information fields filled in at least 10 working days in advance of the requested date of inspection. The request form is available on the NMFS Alaska Region Web site ( https://alaskafisheries.noaa.gov ).
(4) Where will bin monitoring option inspections be conducted? Inspections will be conducted on vessels tied to docks at Dutch Harbor, Alaska, Kodiak, Alaska, and in the Puget Sound area of Washington State.
(5) Bin monitoring option inspection report. A bin monitoring option inspection report will be issued to the vessel owner if the bin monitoring option meets the requirements of paragraph (i)(1)(ii) of this section. The vessel owner must maintain a current bin option inspection report on board the vessel at all times the vessel is required to provide an approved bin monitoring option under this paragraph (i)(5). The bin monitoring option inspection report must be made available to the observer, NMFS personnel, or to an authorized officer upon request.
(j) Video monitoring on catcher/processors and motherships in the BS pollock fishery, including pollock CDQ. The owner and operator of a catcher/processor or a mothership must provide and maintain a video monitoring system approved under paragraph (e) of this section. These video monitoring system requirements must be met when the catcher/processor is directed fishing for pollock in the BS, including pollock CDQ, and when the mothership is taking deliveries from catcher vessels directed fishing for pollock in the BS, including pollock CDQ. Additionally, the system must—
(1) Record and retain video for all periods when fish are flowing past the sorting area or salmon are in the storage container.
(2) The system must provide sufficient resolution and field of view to observe all areas where salmon are sorted from the catch, all crew actions in these areas, and discern individual fish in the salmon storage container.
(k) Video monitoring in the longline catcher/processor subsector. The owner and operator of a catcher/processor subject to § 679.100(b)(2) must provide and maintain a video monitoring system approved under paragraph (e) of this section. These video monitoring system requirements must be met 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. Additionally, the system must:
(1) Record and retain video for all periods when Pacific cod are being sorted and weighed.
(2) Provide sufficient resolution and field of view to monitor all areas where Pacific cod are sorted from the catch, all fish passing over the motion-compensated scale, and all crew actions in these areas.
(l) Video monitoring for halibut deck sorting. The owner and operator of a mothership or catcher/processor subject to § 679.102 must provide and maintain a video monitoring system approved under paragraph (e) of this section when the vessel is halibut deck sorting. Additionally, the system must—
(1) Record and retain video for an entire trip when halibut deck sorting may occur; and
(2) Provide sufficient resolution and field of view to monitor all areas on deck where halibut may be sorted from the catch and discarded, and all crew actions in these areas.
§ 679.30   [Reserved]
§ 679.31   CDQ and PSQ reserves, allocations, and transfers.
(a) CDQ, PSQ, and CDQ ABC reserves —(1) Groundfish CDQ reserves. See § 679.20 (b)(1)(ii).
(2) Halibut CDQ reserve —(i) NMFS will annually withhold from the IFQ allocation the proportions of the halibut catch limit that are specified in paragraph (a)(2)(ii) of this section for use as a CDQ reserve.
(ii) The proportions of the halibut catch limit annually withheld for the halibut CDQ program, exclusive of issued QS, are as follows for each IPHC regulatory area (see Figure 15 to this part):
(A) Area 4B. In IPHC regulatory area 4B, 20 percent of the annual halibut quota shall be apportioned to a CDQ reserve.
(B) Area 4C. In IPHC regulatory area 4C, 50 percent of the annual halibut quota shall be apportioned to a CDQ reserve.
(C) Area 4D. In IPHC regulatory area 4D, 30 percent of the annual halibut quota shall be apportioned to a CDQ reserve.
(D) Area 4E. In IPHC regulatory area 4E, 100 percent of the annual halibut quota shall be apportioned to a CDQ reserve. A fishing trip limit of 10,000 lb (4.54 mt) applies to halibut CDQ harvested through September 1.
(3) Crab CDQ reserves. Crab CDQ reserves for crab species governed by the Crab Rationalization Program are specified at § 680.40(a)(1) of this chapter. For Norton Sound red king crab, 7.5 percent of the guideline harvest level specified by the State of Alaska is allocated to the crab CDQ reserve.
(4) PSQ reserve. (See § 679.21(e)(3)(i)(A) and (b)(1)(iv))
(5) CDQ ABC reserves. (See § 679.20(b)(1)(iii)(A))
(b) Allocations of CDQ, PSQ, and CDQ ABC reserves among the CDQ groups —(1) Annual allocations of groundfish, halibut, and crab CDQ reserves among the CDQ groups. The CDQ reserves in paragraphs (a)(1) through (a)(3) of this section and § 679.20(b)(1)(ii) shall be allocated among the CDQ groups based on the CDQ percentage allocations required under 16 U.S.C. 1855(i)(1)(C), unless modified under 16 U.S.C. 1855(i)(1)(H). A portion of the groundfish CDQ reserves will be allocated according to paragraph (b)(2) of this section.
(2) Annual allocations of nontarget groundfish species among the CDQ groups. Seven-tenths of one percent of each of the annual TACs allocated as groundfish CDQ reserves under § 679.20(b)(1)(ii)(C) and (D), with the exception of the trawl gear sablefish CDQ reserves, shall be allocated among the CDQ groups by the panel established in section 305(i)(1)(G) of the Magnuson-Stevens Act.
(3) Annual allocations of PSQ reserves among the CDQ groups. The annual PSQ reserves shall be allocated among the CDQ groups based on the percentage allocations approved by NMFS on August 8, 2005. These percentage allocations are described and listed in a notice published in the Federal Register on August 31, 2006 (71 FR 51804).
(4) Annual allocations of CDQ ABC reserves among the CDQ groups. (i) An amount equivalent to 10 percent of the ABC reserve for flathead sole, rock sole, and yellowfin sole as determined under the annual harvest specifications at § 679.20(c) shall be allocated among the CDQ groups based on the CDQ percentage allocations under 16 U.S.C. 1855(i)(1)(C), unless modified under 16 U.S.C. 1855(i)(1)(H); and
(ii) An amount equivalent to 0.7 percent of the ABC reserve for flathead sole, rock sole, and yellowfin sole as determined under the annual harvest specifications at § 679.20(c) shall be allocated among the CDQ groups by the panel established in section 305(i)(1)(G) of the Magnuson-Stevens Act.
(c) Transfers. CDQ groups may request that NMFS transfer CDQ or PSQ from one group to another group by each group submitting a completed transfer request as described in § 679.5(n)(1). NMFS will approve the transfer request if the CDQ group transferring quota to another CDQ group has sufficient quota available for transfer. If NMFS approves the request, NMFS will make the requested transfer(s) by decreasing the account balance of the CDQ group from which the CDQ or PSQ species is transferred and by increasing the account balance of the CDQ group receiving the transferred CDQ or PSQ species. The PSQ will be transferred as of the date NMFS approves the transfer request and is effective only for the remainder of the calendar year in which the transfer occurs.
(d) Accessing CDQ ABC reserves. Each CDQ group may request that NMFS approve a Flatfish Exchange to add flathead sole, rock sole, or yellowfin sole to its CDQ account in exchange for reducing its CDQ account by an equal amount of flathead sole, rock sole, or yellowfin sole. CDQ groups may request Flatfish Exchanges by submitting a completed Flatfish Exchange Application as described at § 679.4(p).
§ 679.32   Groundfish and halibut CDQ catch monitoring.
(a) Applicability. This section contains requirements for CDQ groups, vessel operators, and managers of processors that harvest or process fixed gear sablefish CDQ, pollock CDQ, or groundfish CDQ. Regulations governing the catch accounting of halibut CDQ are at § 679.40(h).
(b) PSQ catch. Time and area closures required once a CDQ group has reached its salmon PSQ or crab PSQ are listed in § 679.7(d)(5). The catch of salmon or crab by vessels using other than trawl gear does not accrue to the PSQ for these species. The discard of halibut by vessels using pot gear, jig gear, or hook-and-line gear to harvest sablefish CDQ will not accrue to the halibut PSQ if this bycatch has been exempted from the halibut PSC limit in the annual BSAI specifications published in the Federal Register.
(c) Fisheries monitoring requirements and catch accounting sources for vessels sablefish, pollock, or groundfish CDQ fishing —(1) Sablefish CDQ fishing with fixed gear.
(i) Observer coverage. Operators and owners of catcher vessels sablefish CDQ fishing must comply with observer coverage requirements at § 679.51(a)(1). Operators and owners of catcher/processors sablefish CDQ fishing must comply with observer coverage requirements at § 679.51(a)(2).
(ii) Data sources used for CDQ catch accounting. NMFS will use the following data sources to account for catch made by vessels sablefish CDQ fishing with fixed gear:
(A) Sablefish CDQ. NMFS will use the same information sources that are used to debit sablefish IFQ accounts (see § 679.40(h)) to debit fixed gear sablefish CDQ accounts. This information must be reported through standard reporting requirements in § 679.5.
(B) Groundfish CDQ. NMFS will use the catch information submitted under standard reporting requirements in § 679.5 to debit any other groundfish CDQ species caught while sablefish CDQ fishing from applicable groundfish CDQ accounts.
(2) Pollock CDQ fishing —(i) Operational requirements for catcher/processors and motherships. Operators of catcher/processors directed fishing for pollock CDQ and motherships taking deliveries of codends from catcher vessels directed fishing for pollock must comply with the following:
(A) Comply with observer coverage requirements at § 679.51(a)(2).
(B) Notify the observers of CDQ catch before CDQ catch is brought onboard the vessel and notify the observers of the CDQ group and CDQ number associated with the CDQ catch.
(C) Comply with the catch weighing and observer sampling station requirements at § 679.63(a).
(ii) Data sources used for CDQ catch accounting —(A) Catcher/processors and motherships. NMFS will use observer data as the basis to debit pollock CDQ, groundfish CDQ, and PSQ account balances.
(B) Catcher vessels delivering to shoreside processors. NMFS will use the catch information submitted under standard reporting requirements in § 679.5 to debit pollock CDQ, other groundfish CDQ species, and PSQ caught while pollock CDQ fishing from applicable CDQ account balances.
(3) Groundfish CDQ fishing —(i) Operational requirements —(A) Catcher vessels using trawl gear and delivering sorted catch to a processor. Operators of vessels in this category must comply with all of the following requirements:
( 1 ) Comply with the observer coverage requirements at § 679.51(a)(2).
( 2 ) Retain all CDQ species and salmon PSQ until they are delivered to a processor that meets the requirements of paragraph (d) of this section unless retention of groundfish CDQ species is not authorized under § 679.4 of this part; discard of the groundfish CDQ species is required under subpart B of this part; or, in waters within the State of Alaska, discard is required by laws of the State of Alaska.
( 3 ) Retain all halibut and crab PSQ in a bin or other location until it is counted and sampled by the observer.
( 4 ) Provide space on the deck of the vessel for the observer to sort and store catch samples and a place from which to hang the observer sampling scale.
(B) Catcher/processors using trawl gear. Operators of vessels in this category must comply with the following requirements:
( 1 ) Comply with the observer coverage requirements at § 679.51(a)(2).
( 2 ) [Reserved]
( 3 ) Comply with the catch monitoring requirements at § 679.93(c).
(C) Motherships taking deliveries of unsorted codends. Operators of vessels in this category must comply with the following requirements:
( 1 ) Comply with the observer coverage requirements at § 679.51(a)(2).
( 2 ) [Reserved]
( 3 ) Provide an observer sampling station as described at § 679.28(d).
( 4 ) The operator of a mothership taking deliveries of unsorted codends from catcher vessels must weigh all catch, except halibut sorted on deck by vessels participating in halibut deck sorting described at § 679.102, on a scale that complies with the requirements of § 679.28(b). Catch must not be sorted before it is weighed, unless a provision for doing so is approved by NMFS for the vessel. Each CDQ haul must be sampled by an observer for species composition and the vessel operator must allow observers to use any scale approved by NMFS to weigh partial CDQ haul samples.
(D) Observed catcher vessels using nontrawl gear. This paragraph applies to all observed catcher vessels using nontrawl gear, except those catcher vessels regulated under paragraph (c)(3)(iii) of this section. Operators of vessels in this category must retain all CDQ species until they are delivered to a processor that meets the requirements of paragraph (d) of this section unless retention of groundfish CDQ species is not authorized under § 679.4, discard of the groundfish CDQ or PSQ species is required under subpart B of this part, or, in waters within the State of Alaska, discard is required by laws of the State of Alaska. All of the halibut PSQ must be counted and sampled for length or weight by the observer.
(E) Catcher/processors using nontrawl gear. Operators of vessels in this category must comply with the following requirements:
( 1 ) Operators of catcher/processors using hook-and-line gear must comply with § 679.100. Operators of catcher/processors using pot gear must comply with observer coverage requirements at § 679.51(a)(2)(vi)(A)( 4 ); and
( 2 ) [Reserved]
( 3 ) Provide an observer sampling station as described at § 679.28(d).
( 4 ) Notify the Observer Program by phone at 1 (907) 581-2060 (Dutch Harbor, AK) or 1 (907) 481-1770 (Kodiak, AK) at least 24 hours prior to departure when the vessel will be carrying an observer who has not previously been deployed on that vessel within the last 12 months. Subsequent to the vessel's departure notification, but prior to departure, NMFS may contact the vessel to arrange for a pre-cruise meeting. The pre-cruise meeting must minimally include the vessel operator or manager and any observers assigned to the vessel.
(ii) Data sources used for CDQ catch accounting. NMFS will use the following sources to account for the catch of groundfish CDQ and PSQ species caught by vessels groundfish CDQ fishing.
(A) Catcher vessels delivering unsorted codends. The weight and numbers of groundfish CDQ (including pollock) and PSQ species will be determined by applying the species composition sampling data collected for each CDQ haul by the observer on the mothership to the total weight of each CDQ haul as determined by weighing all catch from each CDQ haul on a scale approved under § 679.28(b).
(B) Observed catcher vessels using trawl gear. The estimated weight of halibut and numbers of crab PSQ discarded at sea will be determined by using the observer's sample data. The weight or numbers of all landed groundfish CDQ and salmon PSQ will be derived from the delivery information submitted through the eLandings system, as required at § 679.5(e).
(C) Catcher/processors and motherships using trawl gear. The weight and numbers of CDQ and PSQ species will be determined by applying the observer's sampling data to the total weight of the CDQ haul.
(D) Observed catcher vessels using nontrawl gear. This paragraph applies to all observed catcher vessels using nontrawl gear, except those catcher vessels regulated under paragraph (c)(3)(iii) of this section. The weight of halibut PSQ discarded at sea will be determined by using the observer's sample data. The weight or numbers of all landed groundfish CDQ and salmon PSQ will be derived from the delivery information submitted through the eLandings system, as required at § 679.5(e).
(E) Catcher/processors using nontrawl gear. The weight of halibut PSQ and all groundfish CDQ species, except sablefish, will be determined by applying the observer's species composition sampling data to the estimate of total catch weight, if any CDQ species are discarded at sea. Sablefish CDQ caught with fixed gear is accounted for as described in paragraph (c)(1) of this section.
(iii) Groundfish CDQ fishing by catcher vessels less than or equal to 46 ft LOA using hook-and-line gear —(A) Applicability. Regulations in this paragraph apply to the operators of catcher vessels less than or equal to 46 ft (14.0 m) LOA using hook-and-line gear when groundfish CDQ fishing and to the CDQ groups authorizing the operators of these vessels to harvest groundfish CDQ or halibut CDQ.
(B) Halibut CDQ or halibut IFQ. If any halibut CDQ or halibut IFQ are retained during a fishing trip on board a vessel described in paragraph (c)(3)(iii)(A) of this section, the following requirements apply:
( 1 ) The vessel operator must retain all legal-size halibut caught during that entire fishing trip.
( 2 ) The vessel operator must have sufficient halibut IFQ or halibut CDQ available to account for the catch of all legal-size halibut caught during the entire fishing trip.
( 3 ) If the vessel operator is relying on halibut CDQ from a CDQ group to support the retained catch of legal-size halibut during a fishing trip, the CDQ group must provide adequate halibut CDQ to this vessel operator to account for all of the legal-size halibut caught by the vessel during the entire fishing trip.
(C) Halibut PSC. If halibut CDQ or halibut IFQ are not retained during a fishing trip on board a vessel described in paragraph (c)(3)(iii)(A) of this section, the following requirements apply:
( 1 ) The vessel operator must discard all halibut caught during the fishing trip.
( 2 ) Small catcher vessel halibut PSC limit. The CDQ group representative may transfer halibut from a CDQ group's halibut PSQ to its small catcher vessel halibut PSC limit. To do so, the CDQ representative must submit a transfer request using the procedures described in § 679.5(n). In reviewing a request to transfer halibut PSQ to a CDQ group's small catcher vessel halibut PSC limit, NMFS will consider whether the amount of halibut to be transferred to the small catcher vessel halibut PSC limit is sufficient to support groundfish CDQ fishing by the catcher vessels that the CDQ group plans to authorize to conduct groundfish CDQ fishing. The transfer is not effective until approved by NMFS. The CDQ group representative also may transfer halibut from a CDQ group's small catcher vessel halibut PSC limit back to its halibut PSQ by submitting a transfer request using the procedures described in § 679.5(n). In reviewing a request to transfer halibut from the small catcher vessel halibut PSC limit back to the CDQ group's halibut PSQ, NMFS will consider the status of CDQ fisheries through the end of the year and anticipated halibut PSC rates for any remaining groundfish CDQ fishing by vessels managed under the small catcher vessel halibut PSC limit for the requesting CDQ group.
( 3 ) Fishery closures. Directed fishing for groundfish CDQ, except sablefish CDQ managed under paragraph (c)(1) of this section, by catcher vessels less than or equal to 46 ft LOA using hook-and-line gear is prohibited unless the Regional Administrator publishes notification in the Federal Register authorizing such directed fishing. In deciding whether to authorize directed fishing, NMFS will consider whether a CDQ group has sufficient halibut in its small catcher vessel halibut PSC limit to support directed fishing for groundfish CDQ by these catcher vessels. Upon determining that a CDQ group's small catcher vessel halibut PSC limit has been or will be reached, the Regional Administrator will publish notification in the Federal Register prohibiting directed fishing for all groundfish CDQ species, except sablefish CDQ, by catcher vessels less than or equal to 46 ft LOA using hook-and-line gear fishing for that CDQ group. If the estimated halibut PSC by vessels described in paragraph (c)(3)(iii)(A) of this section exceeds the balance of the small catcher vessel halibut PSC limit on December 31 of any year, and if the CDQ group has remaining halibut PSQ on that date, NMFS will transfer an amount of halibut PSQ into the CDQ group's small catcher vessel halibut PSC limit to bring the balance of the small catcher vessel halibut PSC limit to zero. NMFS will make the determination about whether such an administrative transfer is necessary after data from the fishing year is finalized.
(d) Monitoring requirements for shoreside processors and stationary floating processors —(1) Requirements for processors taking deliveries of pollock CDQ —(i) Catch weighing. Managers of shoreside processors or stationary floating processors taking deliveries of pollock CDQ must comply with the requirements at § 679.63(c).
(ii) Catch monitoring and control plan. Managers of AFA inshore processors or stationary floating processors taking deliveries of pollock CDQ must follow an approved catch monitoring and control plan as described at § 679.28(g).
(iii) Comply with observer coverage requirements at § 679.51(b)(2).
(2) Requirements for processors taking deliveries of groundfish CDQ. Managers of shoreside processors and stationary floating processors taking deliveries of groundfish CDQ must comply with the following requirements:
(i) Comply with observer coverage requirements at § 679.51(b)(1).
(ii) Provide prior notice to observer of offloading schedule. Notify the observer of the offloading schedule of each CDQ delivery at least 1 hour prior to offloading to provide the observer an opportunity to monitor the sorting and weighing of the entire delivery.
(iii) CDQ and PSQ by weight. Sort and weigh on a scale approved by the State of Alaska under § 679.28(c) all groundfish and halibut CDQ or PSQ by species or species group.
(iv) PSQ by number. Sort and count all salmon and crab PSQ.
(v) CDQ and PSQ sorting and weighing. Sorting and weighing of CDQ and PSQ must be monitored by an observer.
(e) Use of non-CDQ harvest regulations for vessels in voluntary fishing cooperatives —(1) Applicability. If approved by NMFS under this paragraph (e), vessels participating in a voluntary fishing cooperative in a non-CDQ sector are authorized to conduct groundfish CDQ fishing under the same regulations that apply while such vessels are used to directed fish in the non-CDQ fisheries and are not required to comply with the CDQ harvest regulations in paragraph (c)(3)(i) of this section.
(2) Who may apply? A CDQ group representative, a representative of an association representing CDQ groups, or the authorized representative of a voluntary fishing cooperative may submit an application to use alternative CDQ harvest regulations.
(3) Application process —(i) Application documents. A completed application is comprised of an application form and a copy of the cooperative contract or an affidavit, as described below:
(A) Application form. The application to use alternative CDQ harvest regulations is available on the NMFS Alaska Region Web site at www.alaskafisheries.noaa.gov. All information fields must be accurately completed, including information about the applicant, the voluntary fishing cooperative, and the vessels participating in the voluntary cooperative.
(B) Cooperative contract or affidavit. The application must include either a copy of the current voluntary fishing cooperative contract demonstrating participation in the cooperative by the owners of each of the vessels named on the application form or an affidavit that includes the information required in this paragraph (e)(3)(i)(B). NMFS must be able to determine the following information from the voluntary fishing cooperative contract or the affidavit: the name of the authorized representative of the cooperative; the printed names and signatures of each vessel owner that is a party to the voluntary cooperative; the vessel name, FFP number, and LLP license number for each vessel managed under the cooperative; and the target species, processing mode, gear types, and management area(s) associated with the voluntary cooperative's federal fishing operations. If an applicant submits a copy of the voluntary fishing cooperative contract but it does not contain this information, the applicant also must submit a written affidavit that provides all of the information required in this paragraph (e)(3)(i)(B) that is not included in the cooperative contract.
(ii) Application submission. The application for use of non-CDQ harvest regulations must be submitted to the Regional Administrator per the instructions on the application form.
(iii) Submittal and duration —(A) Submittal. An application requesting approval for the use of non-CDQ harvest regulations may be submitted to NMFS at any time.
(B) Duration. Once approved, an application to use alternative CDQ harvest regulations is effective as of the date on which NMFS approves the application. The approval is effective until the requesting entity withdraws its application, or until there is a change in the membership of the voluntary cooperative, whichever occurs first.
(iv) NMFS review. NMFS will review an application to use non-CDQ harvest regulations to determine that all of the information submitted complies with the requirements of paragraphs (e)(2) and (3) of this section, and that the vessels listed on the application form represent a majority of the vessels participating in the applicable sector. If NMFS determines that the application is deficient, NMFS will notify the applicant in writing to identify the discrepancies and provide the applicant with an opportunity to correct them.
(v) NMFS determinations and administrative appeal. NMFS will approve an application to use non-CDQ harvest regulations when it determines that all of the information submitted with the application complies with the requirements of paragraphs (e)(2) and (3) of this section, the vessels listed on the application form represent a majority of vessels participating in an applicable sector, and the CDQ harvest regulations are more restrictive than the non-CDQ regulations for the applicable sector. NMFS will issue an initial administrative determination (IAD) disapproving the application and the reasons for its disapproval if the application is incomplete, the voluntary cooperative does not represent a majority of the vessels participating in the sector, or the CDQ harvest regulations are not more restrictive than the non-CDQ regulations for the applicable sector. An applicant who receives an IAD disapproving an application may appeal under the procedures set forth at § 679.43.
(vi) Amendments. The entity applied for use of non-CDQ harvest regulations must promptly notify NMFS of any changes in the voluntary fishing cooperative's membership by re-applying in accordance with this paragraph (e). Amendments to an approved application to use alternative CDQ harvest regulations may be submitted to NMFS at any time, and will be reviewed under the requirements of this paragraph (e).
§ 679.33   CDQ cost recovery.
(a) Cost Recovery Fee Program for CDQ groundfish and halibut —(1) Who is Responsible? The person documented with NMFS as the CDQ group representative at the time of a CDQ landing.
(i) Subsequent transfer, under § 679.31(c), of a CDQ allocation by a CDQ group does not affect the CDQ group representative's liability for noncompliance with this section.
(ii) Changes in amount of a CDQ allocation to a CDQ group do not affect the CDQ group representative's liability for noncompliance with this section.
(2) Fee collection. Each CDQ group that receives a CDQ allocation of groundfish and halibut is responsible for submitting the cost recovery payment for all CDQ landings debited against that CDQ group's allocations.
(3) Payment —(i) Payment due date. A CDQ group representative must submit all CDQ fee payment(s) to NMFS at the address provided in paragraph (a)(3)(iii) of this section no later than December 31 of the calendar year in which the CDQ groundfish and halibut landings were made.
(ii) Payment recipient. Make electronic payment payable to NMFS.
(iii) Payment address. Submit payment and related documents as instructed on the fee submission form. Payments must 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 CDQ group representative.
(iv) Payment method. 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) CDQ standard ex-vessel value determination and use —(1) General. A CDQ group representative must use the CDQ standard prices determined by NMFS under paragraph (b)(2) of this section.
(2) CDQ standard prices —(i) General. Each year the Regional Administrator will publish CDQ standard prices for groundfish and halibut in the Federal Register by December 1 of the year in which the CDQ groundfish and halibut landings were made. The CDQ standard prices will be described in U.S. dollars per CDQ equivalent pound for CDQ groundfish and halibut landings made during the current calendar year.
(ii) Effective duration. The CDQ standard prices published by NMFS shall apply to all CDQ groundfish and halibut landings made during the current calendar year.
(iii) Determination. NMFS will calculate the CDQ standard prices for each CDQ fishery as follows:
(A) CDQ halibut and CDQ fixed gear sablefish. NMFS will calculate the CDQ standard prices for CDQ halibut and CDQ fixed gear sablefish to reflect, as closely as possible by port or port-group, the variations in the actual ex-vessel values of CDQ halibut and fixed-gear sablefish based on information provided in the IFQ Registered Buyer Ex-vessel Volume and Value Report described at § 679.5(l)(7). The Regional Administrator will base CDQ standard prices on the following information:
( 1 ) Landed pounds of IFQ halibut and sablefish and CDQ halibut in the Bering Sea port-group;
( 2 ) Total ex-vessel value of IFQ halibut and sablefish and CDQ halibut in the Bering Sea port-group; and
( 3 ) Price adjustments, including retroactive payments.
(B) CDQ Pacific cod. NMFS will use the standard prices calculated for Pacific cod based on information provided in the Pacific Cod Ex-vessel Volume and Value Report described at § 679.5(u)(1) for CDQ Pacific cod.
(C) CDQ pollock. NMFS will use the standard prices calculated for AFA pollock described at § 679.66(b) for CDQ pollock.
(D) Other CDQ groundfish including sablefish caught with trawl gear. ( 1 ) NMFS will base all CDQ standard prices for all other CDQ groundfish species on the First Wholesale Volume and Value reports specified in § 679.5(u)(2).
( 2 ) NMFS will establish CDQ standard prices for all other CDQ groundfish species on an annual basis; except the Regional Administrator will establish a first CDQ standard price for rock sole for all landings from January 1 through March 31, and a second CDQ standard price for rock sole for all landings from April 1 through December 31.
( 3 ) The average first wholesale product prices reported will be multiplied by 0.4 to obtain a proxy for the ex-vessel prices of those CDQ groundfish species.
(c) CDQ fee percentage —(1) Established percentage. The CDQ fee percentage for CDQ groundfish and halibut is the amount as determined by the factors and methodology described in paragraph (c)(2) of this section. This amount will be announced by publication in the Federal Register in accordance with paragraph (c)(3) of this section. This amount must not exceed 3.0 percent pursuant to 16 U.S.C. 1854(d)(2)(B).
(2) Calculating fee percentage value. Each year NMFS will calculate and publish the CDQ fee percentage according to the following factors and methodology:
(i) Factors. NMFS will use the following factors to determine the fee percentage:
(A) The catch to which the CDQ groundfish and halibut cost recovery fee will apply;
(B) The ex-vessel value of that catch; and
(C) The costs directly related to the management, data collection, and enforcement of the CDQ Program for groundfish and halibut.
(ii) Methodology. NMFS will use the following equations to determine the fee percentage: 100 × DPC/V, where:
(A) DPC = the direct program costs for the CDQ Program for groundfish and halibut for the most recent Federal fiscal year (October 1 through September 30) with any adjustments to the account from payments received in the previous year.
(B) V = total of the CDQ standard ex-vessel value of the catch subject to the CDQ fee liability for the current year.
(3) Publication —(i) General. NMFS will calculate and announce the CDQ fee percentage in a Federal Register notice by December 1 of the year in which the CDQ groundfish and halibut landings were made. NMFS will calculate the CDQ fee percentage based on the calculations described in paragraph (c)(2) of this section.
(ii) Effective period. NMFS will apply the calculated CDQ fee percentage to CDQ groundfish and halibut landings made between January 1 and December 31 of the same year.
(4) Applicable percentage. The CDQ group representative must use the CDQ fee percentage applicable at the time a CDQ groundfish and halibut landing is debited from a CDQ group's allocation to calculate the CDQ fee liability for any retroactive payments for that CDQ species.
(5) Fee liability determination for a CDQ group. (i) Each CDQ group will be subject to a CDQ fee for any CDQ groundfish and halibut debited from that CDQ group's allocation during a calendar year.
(ii) The CDQ fee assessed to a CDQ group will be based on the proportion of the standard ex-vessel value of CDQ groundfish and halibut debited from a CDQ group's allocation relative to all CDQ groups during a calendar year as determined by NMFS.
(iii) NMFS will provide a CDQ fee liability summary letter to each CDQ group representative by December 1 of each year. The summary will explain the CDQ fee liability determination including the current fee percentage, and details of CDQ pounds debited from the CDQ group allocations by permit, species, date, and prices.
(d) Underpayment of fee liability —(1) No CDQ group will receive its allocations of CDQ groundfish or halibut until the CDQ group representative submits full payment of that CDQ group's complete CDQ fee liability.
(2) If a CDQ group representative fails to submit full payment for its CDQ fee liability by the date described in paragraph (a)(3) of this section, the Regional Administrator may:
(i) At any time thereafter send an IAD to the CDQ group representative stating that the CDQ group's estimated fee liability, as indicated by his or her own submitted information, is the CDQ fee liability due from the CDQ group.
(ii) Disapprove any application to transfer CDQ to or from the CDQ group in accordance with § 679.31(c).
(3) If a CDQ group fails to submit full payment by December 31 of each year, the Regional Administrator will not issue allocations of CDQ groundfish and halibut to that CDQ group for the following calendar year.
(4) Upon final agency action determining that a CDQ group representative has not paid the CDQ fee liability due for that CDQ group, the Regional Administrator may continue to not issue allocations of CDQ groundfish and halibut for that CDQ group for any subsequent calendar years until NMFS receives the unpaid fees. If payment is not received by the 30th day after the final agency action, the agency may pursue collection of the unpaid fees.
(e) Over payment. Upon issuance of final agency action, payment submitted to NMFS in excess of the CDQ fee liability determined to be due by the final agency action will be returned to the CDQ group representative unless the CDQ group representative requests the agency to credit the excess amount against the CDQ group's future CDQ fee liability.
(f) Appeals. A CDQ group representative who receives an IAD for incomplete payment of a CDQ fee liability may appeal under the appeals procedures set out at 15 CFR part 906.
(g) Annual report. Each year, NMFS will publish a report describing the CDQ Cost Recovery Fee Program for groundfish and halibut.
§ 679.40   Sablefish and halibut QS.
The Regional Administrator shall annually divide the annual commercial fishing catch limit of halibut as defined in § 300.61 of this title and published in the Federal Register pursuant to § 300.62 of this title, among qualified halibut quota share holders. The Regional Administrator shall annually divide the TAC of sablefish that is apportioned to the fixed gear fishery pursuant to § 679.20, minus the CDQ reserve, among qualified sablefish quota share holders.
(a) Initial allocation of QS —(1) General. The Regional Administrator shall initially assign to qualified persons, on or after October 18, 1994, halibut and sablefish fixed gear fishery QS that are specific to IFQ regulatory areas and vessel categories. QS will be assigned as a block in the appropriate IFQ regulatory area and vessel category, if that QS would have resulted in an allocation of less than 20,000 lb (9 mt) of IFQ for halibut or sablefish based on the 1994 TAC for fixed gear in those fisheries for specific IFQ regulatory areas and the QS pools of those fisheries for specific IFQ regulatory areas as of October 17, 1994.
(2) Qualified person. (i) As used in this section, a “qualified person” means a “person,” as defined in § 679.2:
(A) That owned a vessel that made legal landings of halibut or sablefish, harvested with fixed gear, from any IFQ regulatory area in any QS qualifying year; or
(B) That leased a vessel that made legal landings of halibut or sablefish, harvested with fixed gear, from any IFQ regulatory area in any QS qualifying year. A person who owns a vessel cannot be a qualified person based on the legal fixed gear landings of halibut or sablefish made by a person who leased the vessel for the duration of the lease.
(C) Who is a citizen of the United States at the time of application for QS.
(D) Who is a corporation, partnership, association, or other non-individual entity that would have qualified to document a fishing vessel as a vessel of the United States during the QS qualifying years of 1988, 1989, and 1990.
(ii) Qualified persons, or their successors-in-interest, must exist at the time of their application for QS.
(iii) A former partner of a dissolved partnership or a former shareholder of a dissolved corporation who would otherwise qualify as a person may apply for QS in proportion to his or her interest in the dissolved partnership or corporation.
(iv) Sablefish harvested within Prince William Sound, or under a State of Alaska limited entry program, will not be considered in determining whether a person is a qualified person.
(3) Qualification for QS —(i) Year. A QS qualifying year is 1988, 1989, or 1990.
(ii) Vessel ownership. Evidence of vessel ownership shall be limited to the following documents, in order of priority:
(A) For vessels required to be documented under the laws of the United States, the USCG abstract of title issued in respect of that vessel.
(B) A certificate of registration that is determinative as to vessel ownership.
(C) A bill of sale.
(iii) Vessel lease. Conclusive evidence of a vessel lease will include a written vessel lease agreement or a notarized statement from the vessel owner and lease holder attesting to the existence of a vessel lease agreement at any time during the QS qualifying years. Conclusive evidence of a vessel lease must identify the leased vessel and indicate the name of the lease holder and the period of time during which the lease was in effect. Other evidence, which may not be conclusive, but may tend to support a vessel lease, may also be submitted.
(iv) Ownership interest. Evidence of ownership interest in a dissolved partnership or corporation shall be limited to corporate documents (e.g., articles of incorporation) or notarized statements signed by each former partner, shareholder or director, and specifying their proportions of interest.
(v) Legal landing of halibut or sablefish —(A) Definition. As used in this section, a “legal landing of halibut or sablefish” means halibut or sablefish harvested with fixed gear and landed in compliance with state and Federal regulations in effect at the time of the landing.
(B) Documentation. Evidence of legal landings shall be limited to documentation of state or Federal catch reports that indicate the amount of halibut or sablefish harvested, the IPHC regulatory area or groundfish reporting area in which it was caught, the vessel and gear type used to catch it, and the date of harvesting, landing, or reporting. State catch reports are Alaska, Washington, Oregon, or California fish tickets. Federal catch reports are production reports required under § 679.5. Sablefish harvested within Prince William Sound or under a State of Alaska limited entry program will not be considered in determining qualification to receive QS, nor in calculating initial QS.
(4) Calculation of initial QS —(i) Halibut QS. The Regional Administrator shall calculate the halibut QS for any qualified person in each IFQ regulatory area based on that person's highest total legal landings of halibut in each IPHC regulatory area for any 5 years of the 7-year halibut QS base period 1984 through 1990. The sum of all halibut QS for an IFQ regulatory area will be the halibut QS pool for that area.
(ii) Sablefish QS. The Regional Administrator shall calculate the sablefish QS for any qualified person in each IFQ regulatory area based on that person's highest total legal landings of sablefish in each groundfish reporting area for any 5 years of the 6-year sablefish QS base period 1985 through 1990. The sum of all sablefish QS for an IFQ regulatory area will be the sablefish QS pool for that area.
(iii) CDQ program. Each initial QS calculation will be modified to accommodate the CDQ program prescribed at subpart C of this part.
(5) Assignment of QS to vessel categories —(i) LOA. Each qualified person's QS will be assigned to a vessel category based on the LOA of vessel(s) from which that person made fixed gear legal landings of groundfish or halibut in the most recent year of participation and the product type landed. As used in this paragraph (a)(5), “the most recent year of participation” means the most recent of 4 calendar years in which any groundfish or halibut were harvested using fixed gear, as follows: 1988, 1989, or 1990; or calendar year 1991 prior to September 26, 1991.
(ii) Vessel categories. QS and its associated IFQ assigned to vessel categories include:
(A) Category A QS and associated IFQ, which authorizes an IFQ permit holder to harvest and process IFQ species on a vessel of any length;
(B) Category B QS and associated IFQ, which authorizes an IFQ permit holder to harvest IFQ species on a vessel of any length;
(C) Category C QS and associated IFQ, which authorizes an IFQ permit holder to harvest IFQ species on a vessel less than or equal to 60 ft (18.3 m) LOA:
(D) Category D QS and associated IFQ, which authorizes an IFQ permit holder to harvest IFQ halibut on a vessel less than or equal to 35 ft (10.7 m) LOA, except as provided in § 679.42(a).
(iii) QS assignment. A qualified person's QS will be assigned:
(A) To vessel category A if, at any time during his/her most recent year of participation, that person's vessel processed any groundfish or halibut caught with fixed gear.
(B) To vessel category B if, at any time during his/her most recent year of participation, that person's vessel was greater than 60 ft (18.3 m) LOA and did not process any groundfish or halibut caught with fixed gear.
(C) To each applicable vessel category in proportion to the landings of halibut or sablefish made by that person if, at any time during their most recent year of participation, that person used more than one vessel in different categories.
(iv) Sablefish QS. A qualified person's sablefish QS will be assigned:
(A) To vessel category C if, at any time during his/her most recent year of participation, that person's vessel was less than or equal to 60 ft (18.3 m) LOA and did not process any groundfish or halibut caught with fixed gear.
(B) To the vessel category in which halibut and groundfish were landed, or vessel categories in proportion to the total fixed gear landings of halibut and groundfish, if, at any time during the most recent year of participation, that person's vessel(s) makes no landing(s) of sablefish.
(v) Halibut QS. A qualified person's halibut QS will be assigned:
(A) To vessel category C if, at any time during his/her most recent year of participation, that person's vessel was less than or equal to 60 ft (18.3 m), but greater than 35 ft (10.7 m), LOA and did not process any groundfish or halibut caught with fixed gear.
(B) To vessel category D if, at any time during his/her most recent year of participation, that person's vessel was less than or equal to 35 ft (10.7 m) LOA and did not process any groundfish or halibut caught with fixed gear.
(C) To the vessel category in which groundfish were landed, or vessel categories in proportion to the total fixed gear landings of groundfish, if, at any time during the most recent year of participation, that person's vessel(s) makes no landing(s) of halibut.
(vi) Both species QS. A qualified person's QS for both species will be assigned to the vessel category in which groundfish were landed in the most recent year of participation if, at any time during that year, that person landed halibut in one vessel category and sablefish in a different vessel category.
(6) Application for initial QS —(i) Application form. The Application period for QS ended on July 15, 1994. As of that date, the Request for QS Application form replaced the QS Application form as the means by which the Administrator, RAM, reviews and makes initial administrative determinations on requests for initial allocations of QS. A Request for QS Application must contain the following: information identifying the individual, representative of a deceased fisherman's estate, corporation, partnership, or other non-individual entity, or dissolved corporation, partnership, or other non-individual entity making the request; contact numbers; vessel identification, length overall, and purchase date; and information on any vessel leasing arrangement pertinent to the claim of eligibility.
(ii) Application period. An application period of no less than 180 days will be specified by notification in the Federal Register and other information sources that the Regional Administrator deems appropriate.
(iii) Complete application. Complete applications received by the Regional Administrator will be acknowledged. An incomplete application will be returned to the applicant with specific kinds of information identified that are necessary to make it complete.
(7) Insufficient documentation. Halibut and sablefish catch history, vessel ownership or lease data, and other information supplied by an applicant will be compared with data compiled by the Regional Administrator. If additional data presented in an application are not consistent with the data compiled by the Regional Administrator, the applicant will be notified of insufficient documentation. The applicant will have 90 days to submit corroborating documents (as specified in paragraph (a) of this section) in support of his/her application or to resubmit a revised application. All applicants will be limited to one opportunity to provide corroborating documentation or a revised application in response to notification of insufficient documentation.
(8) Verified data. Uncontested data in applications will be approved by the Regional Administrator. Based on these data, the Regional Administrator will calculate each applicant's initial halibut and sablefish QS, as provided in paragraph (b) of this section, for each IFQ regulatory area, respectively, and will add each applicant's halibut and sablefish QS for an IFQ regulatory area to the respective QS pool for that area.
(9) Unverified data. Catch history, vessel ownership, or lease data that cannot be verified by the Regional Administrator, following the procedure described in paragraph (a)(7) of this section, will not qualify for QS. An initial determination denying QS on the grounds that claimed catch history, vessel ownership or lease data were not verified may be appealed following the procedure described in § 679.43. Quota share reflecting catch history, vessel ownership, or lease data that are contested between two or more applicants, at least one of which is likely to qualify for QS when the dispute is resolved, will be assigned to a reserve that will be considered part of the QS pool for the appropriate IFQ regulatory area. Any QS and IFQ that results from agency action resolving the dispute will be assigned to the prevailing applicant(s) pursuant to paragraphs (a)(4), (a)(5), (b), and (c) of this section. If the assigned IFQ for the 1995 fishing season becomes moot by passage of time needed to resolve the dispute, the assignment of QS and IFQ for subsequent fishing seasons will be unaffected.
(10) NMFS revokes inactive QS if the person holding inactive QS does not:
(i) Respond in writing to NMFS, within 60 days after NMFS issues a Notice of Determination of Quota Share Inactivity (Inactive QS Notice) sent to the address of record as defined at § 679.43(e) of this part, requesting that the inactive QS not be revoked. Responses must be received by NMFS no later than the date contained on the Inactive QS Notice
(ii) For purposes of paragraph (a)(10) of this section, “respond in writing” means write a statement directing NMFS to change the status of QS to “active” and sign and date the statement or complete the form attached to the Inactive QS Notice and send by U.S. Mail, courier, hand delivery, or facsimile to the NMFS, Alaska Region as provided on the Inactive QS Notice and printed on the front side of the form. The written response must be received by NMFS no later than the date contained on the Inactive QS Notice or if sent by mail, postmarked by that date. If delivered by hand or courier, the receiving date is the date the notice is stamped received by NMFS.
(iii) For purposes of paragraph (a)(10) of this section, the term “inactive QS” means halibut QS or sablefish QS, held by a person who received an initial allocation of halibut QS or sablefish QS and has not taken any of the following actions:
(A) Transferred any halibut QS or sablefish QS pursuant to § 679.41;
(B) Transferred any halibut IFQ or sablefish IFQ pursuant to § 679.41;
(C) Landed any halibut authorized by IFQ halibut permit(s) issued to that person; or
(D) Landed any sablefish authorized by IFQ sablefish permit(s) issued to that person.
(b) Annual allocation of IFQ and RFQ. The Regional Administrator shall assign halibut or sablefish IFQs to each person, except the RQE, holding unrestricted QS halibut or sablefish, respectively, up to the limits prescribed in § 679.42(e) and (f). Each assigned IFQ will be specific to an IFQ regulatory area and vessel category, and will represent the maximum amount of halibut or sablefish that may be harvested from the specified IFQ regulatory area and by the person to whom it is assigned during the specified fishing year, unless the IFQ assignment is changed by the Regional Administrator within the fishing year because of an approved transfer or because all or part of the IFQ is sanctioned for violating rules of this part. The Regional Administrator shall assign RFQ to the RQE pursuant to paragraph (c)(4) of this section.
(c) Calculation of annual IFQ and RFQ allocations —(1) General. (i) The annual allocation of halibut IFQ to any person (person p) in any IFQ regulatory area (area a) will be equal to the product of the annual commercial catch limit as defined in § 300.61 of this title, after adjustment for purposes of the Western Alaska CDQ Program, and that person's QS divided by the QS pool for that area. Overage adjustments will be subtracted from a person's IFQ pursuant to paragraph (d) of this section; underage adjustments will be added to a person's IFQ pursuant to paragraph (e) of this section. Expressed algebraically, the annual halibut IFQ allocation formula is as follows:
(ii) The annual allocation of sablefish IFQ to any person (person p) in any IFQ regulatory area (area a) will be equal to the product of the TAC of sablefish by fixed gear for that area (after adjustment for purposes of the Western Alaska CDQ Program) and that person's QS divided by the QS pool for that area. Overage adjustments will be subtracted from a person's IFQ pursuant to paragraph (d) of this section; underage adjustments will be added to a person's IFQ pursuant to paragraph (e) of this section. Expressed algebraically, the annual IFQ allocation formula is as follows:
(2) QS amounts. For purposes of calculating IFQs and RFQ for any fishing year, the amount of a person's QS and the amount of the QS pool for any IFQ regulatory area will be the amounts on record with the Alaska Region, NMFS, on January 15 of that year.
(3) IFQ permit. The Regional Administrator shall issue to each QS holder, pursuant to § 679.4, an IFQ permit specifying the maximum amount of halibut and sablefish that may be harvested with fixed gear in a specified IFQ regulatory area and vessel category. Such IFQ permits will be sent to each QS holder at the address on record for that person prior to the start of the IFQ fishing season or to any IFQ holder(s) following transfers or penalties (15 CFR part 904).
(4) RFQ allocation to RQE —(i) RQE QS amounts. For purposes of calculating RFQ for any fishing year, the amount of halibut QS held by the RQE for either IFQ regulatory area 2C or 3A for the corresponding IFQ regulatory area will be the amounts on record with the Alaska Region, NMFS on October 1 of the year prior.
(ii) Calculation of RFQ. The annual allocation of RFQ halibut to an RQE (person r) in IFQ regulatory area 2C or 3A (area a) will be equal to the product of the annual commercial catch limit as defined in § 300.61 of this title, and the QS held by the RQE (specified in paragraph (c)(4)(i) of this section) divided by the QS pool for that area (specified in paragraph (c)(2) of this section). No overage or underage adjustments will be applied to the RQE's annual RFQ. Expressed algebraically, the annual RFQ halibut allocation formula is as follows:
(iii) Excess RFQ. NMFS will not issue the RQE any excess RFQ. Excess RFQ is the difference between the amount of RFQ based on the QS held by the RQE and the amount of RFQ needed to provide charter fishery management measures that are equivalent to unguided recreational fishery management measures. If the annual management measures published pursuant to § 300.62 of this title specify charter fishery management measures that are equivalent to the unguided recreational management measures, NMFS will:
(A) Calculate the annual allocation of halibut RFQ to the RQE as specified in paragraph (c)(4)(ii) of this section; and
(B) Determine the amount of RFQ needed to supplement the annual guided sport catch limit from the CSP in Area 2C and Area 3A (described in § 300.65(c) of this title) to account for charter fishery harvests under the charter fishery management measures specified in the annual management measures and issue that amount of RFQ to the RFQ permit account.
(C) Calculate the amount of excess RFQ by subtracting the amount of RFQ issued as determined in paragraph (c)(4)(iii)(B) of this section from the annual calculation of RFQ halibut to the RQE as calculated in paragraph (c)(4)(iii)(A) of this section.
(iv) Redistribution of excess RFQ. Excess pounds of RFQ will be redistributed as IFQ as follows:
(A) 50 percent to all catcher vessel QS holders in the applicable area who held not more than 32,333 QS units in Area 2C, and 47,469 QS units in Area 3A in the current calendar year and in the calendar year prior to the redistribution, in proportion to their QS holdings; and
(B) 50 percent divided equally among all CQEs that held halibut QS in the applicable IFQ regulatory area (Area 2C or Area 3A) in the current calendar year and in the calendar year prior to the redistribution. If no CQE held QS in the applicable IFQ regulatory area (Area 2C and Area 3A) in the current calendar year and in the calendar year prior to the redistribution, that RFQ will not be redistributed as IFQ and will not be available for use by any CQE, IFQ permit holder, or RQE in that calendar year.
(d) Ten-percent adjustment policy. A person's annual IFQ account will be adjusted in the year following a determination that the person harvested or landed IFQ species in an amount is greater than the amount available in the person's annual IFQ account and if the amount greater than the amount available does not exceed 10 percent of the amount available in the person's annual IFQ account at the time of landing. The adjustment would be a deduction of the amount of IFQ species harvested or landed that was determined to exceed the amount available in the person's annual IFQ account and will apply to any person to whom the affected IFQ is allocated in the year following the determination.
(e) Underages. Underages of up to 10 percent of a person's total annual IFQ account for a current fishing year will be added to that person's annual IFQ account in the year following determination of the underage. This underage adjustment to the annual IFQ allocation will be specific to IFQ species, IFQ regulatory area, and vessel category for which an IFQ is calculated, and will apply to any person to whom the affected IFQ is allocated in the year following determination of an underage.
(f) Harvesting privilege. Quota shares allocated or permits issued pursuant to this part do not represent either an absolute right to the resource or any interest that is subject to the “takings” provision of the Fifth Amendment of the U.S. Constitution. Rather, such quota shares or permits represent only a harvesting privilege that may be revoked or amended subject to the requirements of the Magnuson-Stevens Act and other applicable law.
(g) External research tags for halibut and sablefish. (1) Nothing contained in this part 679 shall prohibit any person at any time from retaining and landing a Pacific halibut or sablefish that bears at the time of capture an external research tag from any state, Federal, or international agency, provided that the halibut or sablefish is one of the following:
(i) A Pacific halibut landed pursuant to § 300.62 of this title and to this part 679; or
(ii) A sablefish landed in accordance with the Tagged Groundfish Research Program, and in compliance with all sablefish requirements of this part 679.
(2) Halibut and sablefish bearing an external research tag from any state, Federal, or international agency, landed pursuant to paragraph (g)(1)(i) or (g)(1)(ii) of this section, and in accordance with § 679.5(l), shall be excluded from IFQ or CDQ deduction as follows:
(i) The fish shall not be calculated as part of a person's IFQ harvest of halibut or sablefish and shall not be debited against a person's halibut IFQ or a person's sablefish IFQ; or
(ii) The fish shall not be calculated as part of the CDQ harvest of halibut or sablefish and shall not be debited against a CDQ group's halibut CDQ or a CDQ group's sablefish CDQ.
(iii) The fish will not be calculated as part of the recreational harvest of halibut and will not be debited against the RFQ permit account or the annual guided sport catch limit as defined in § 300.61 of this title.
(h) Properly debited landing —(1) Permit holder's account. Except as provided in paragraph (g) of this section, all IFQ halibut, CDQ halibut, and IFQ sablefish catch onboard a vessel must be weighed and debited from the IFQ permit holder's account or CDQ halibut permit holder's account under which the catch was harvested.
(2) Properly debited account. A properly concluded sablefish/halibut IFQ landing receipt, crab IFQ landing receipt, or a manual IFQ landing report which is signed by the Registered Buyer and IFQ permit holder or IFQ hired master permit holder or CDQ hired master permit holder constitutes confirmation that the IFQ permit holder's or CDQ permit holder's account is properly debited.
(3) Source of debit. NMFS will use the following sources (see paragraphs (h)(3)(i), (ii) and (iii) of this section) of information to debit a CDQ halibut, IFQ halibut, IFQ sablefish, or RFQ permit account:
(i) Unprocessed landing. If offload of unprocessed IFQ halibut, CDQ halibut, or IFQ sablefish from a vessel, the scale weight (to the nearest pound) of the halibut or sablefish product actually measured at the time of offload, as required by § 679.5(e)(7)(i)(E)( 6 ) to be included in the IFQ Landing Report.
(ii) Processed landing. If offload of processed IFQ halibut, CDQ halibut, or IFQ sablefish from a vessel, the scale weight (to the nearest pound) of the halibut or sablefish processed product actually measured at or before the time of offload. If the product scale weights are taken before the time of offload, then the species and actual product weight of each box or container must be visibly marked on the outside of each container to facilitate inspection by OLE or designees.
(iii) Landed RFQ. All annual RFQ halibut issued to an RQE will be considered landed in the year for which it is issued.
§ 679.41   Transfer of quota shares and IFQ.
(a) General. (1) Except as provided in paragraph (a)(2) of this section, transfer of QS or IFQ means any transaction requiring QS, or the use thereof in the form of IFQ, to pass from one person to another, permanently or for a fixed period of time.
(2) Transactions requiring IFQ permits to be issued in the name of a hired master employed by an individual or a corporation are not transfers of QS or IFQ.
(3) Any transaction involving a transfer between IFQ and guided angler fish (GAF), as defined in § 300.61 of this title, is governed by regulations in § 300.65(c) of this title.
(b) Transfer procedure —(1) Application for transfer. An Application for Transfer of QS/IFQ (Application for Transfer) must be approved by the Regional Administrator before a person may use IFQ to harvest IFQ halibut or IFQ sablefish, whether the IFQ was the result of a direct transfer or the result of a QS transfer. An Application for Transfer will not be approved until the Regional Administrator has reviewed and approved the transfer agreement signed by the parties to the transaction. The Regional Administrator shall provide an Application for Transfer form to any person on request. Persons who submit an Application for Transfer to the Regional Administrator for approval will receive notification of the Regional Administrator's decision to approve or disapprove the Application for Transfer, and, if applicable, the reason(s) for disapproval, by mail posted on the date of that decision, unless another communication mode is requested on the Application for Transfer.
(2) QS or IFQ accounts. QS or IFQ accounts affected by an Application for Transfer approved by the Regional Administrator will change on the date of approval. Any necessary IFQ permits will be sent with the notification of the Regional Administrator's decision.
(c) Application for Transfer approval criteria. Except as provided in paragraph (f) of this section, an Application for Transfer will not be approved until the Regional Administrator has determined that:
(1) The person applying for transfer received the QS or IFQ to be transferred:
(i) By initial assignment by the Regional Administrator as provided in § 679.40(a); or
(ii) By approved transfer.
(2) The person applying to receive the QS or IFQ meets the requirements of eligibility in paragraph (d) of this section.
(3) The person applying for transfer and the person applying to receive the QS or IFQ have their signatures on the Application for Transfer.
(4) There are no fines, civil penalties, or other payments due and owing, or outstanding permit sanctions, resulting from Federal fishery violations involving either person.
(5) The person applying to receive the QS or IFQ currently exists.
(6) The transfer would not cause the person applying to receive the QS or IFQ to exceed the use limits in § 679.42 (e) or (f).
(7) The transfer would not violate the provisions of paragraph (g) of this section.
(8)(i) The person applying to make or receive the IFQ or QS transfer has paid all IFQ fees that have become due as a result of an initial administrative determination.
(ii) The person applying to make or receive the IFQ or QS transfer who has not paid all IFQ fees that are due (as provided under § 679.45(a)) has timely appealed the administrative determination that IFQ fees have not been paid in full and has submitted to NMFS an amount sufficient to satisfy any disputed liability pending a final agency action.
(9) Other pertinent information requested on the Application for Transfer has been supplied to the satisfaction of the Regional Administrator.
(10) If the person applying to transfer or receive QS or IFQ is a CQE, the following determinations are required for each eligible community represented by that CQE:
(i) An individual applying to receive IFQ from QS held by a CQE is an eligible community resident of the eligible community in whose name the CQE is holding QS;
(ii) The CQE applying to receive or transfer QS, has submitted a complete annual report required by § 679.5 (t);
(iii) The CQE applying to transfer QS has provided information on the reasons for the transfer as described in paragraph (g)(7) of this section;
(iv) The CQE applying to receive QS is eligible to hold QS on behalf of the eligible community in the halibut or sablefish regulatory area designated for that eligible community in Table 21 to this part; and
(v) The CQE applying to receive QS has received notification of approval of eligibility to receive QS/IFQ for that community as described in paragraph (d)(1) of this section.
(11) If the person applying to receive or transfer QS is an RQE, the following determinations are required:
(i) The RQE applying to receive or transfer QS, has submitted the timely and complete annual report required by § 679.5(v);
(ii) The RQE applying to receive QS is eligible to hold QS on behalf of the charter halibut sector in IFQ regulatory area 2C or 3A; and
(iii) The RQE applying to receive QS has received notification of approval of eligibility to receive QS on behalf of the charter halibut sector in IFQ regulatory area 2C or 3A as described in paragraph (d)(1) of this section.
(12) The person applying to receive QS assigned to vessel category B, C, or D is not a corporation, partnership, association, or other non-individual entity, except as specified in paragraph (g)(3) of this section.
(13) If the person applying to receive halibut IFQ assigned to vessel categories B, C, or D in IFQ regulatory areas 4B, 4C, or 4D is a CDQ group, the following determinations are required:
(i) The CDQ group applying to receive halibut IFQ for an IFQ regulatory area receives an annual allocation of halibut CDQ for that IFQ regulatory area pursuant to § 679.31(b)(1);
(ii) The QS holder applying to transfer halibut IFQ to a CDQ group has not transferred any halibut IFQ assigned to vessel categories B, C, or D for that IFQ regulatory area to a CDQ group during the last two consecutive fishing years;
(iii) If the IFQ to be transferred to a CDQ group results from QS that was transferred to the QS holder after December 14, 2015, the QS holder applying to transfer halibut IFQ to a CDQ group has held the underlying QS for that IFQ for a minimum of 3 years from the date NMFS approved the transfer;
(iv) If the IFQ to be transferred to a CDQ group is assigned to vessel categories B, C, or D in IFQ regulatory area 4B, the QS holder applying to transfer that halibut IFQ to a CDQ group holds fewer than 76,355 halibut QS units in IFQ regulatory area 4B; and
(v) The CDQ group applying to receive halibut IFQ has submitted a complete report if required to do so by § 679.5(w).
(d) Eligibility to receive QS or IFQ by transfer —(1) Application for Eligibility. All persons, except as provided in paragraphs (d)(1)(i) and (d)(1)(ii) of this section, applying to receive QS or IFQ must submit an Application for Eligibility to Receive QS/IFQ (Application for Eligibility) containing accurate information to the Regional Administrator. The Regional Administrator will not approve a transfer of IFQ or QS to a person until the Application for Eligibility for that person is approved by the Regional Administrator. The Regional Administrator shall provide an Application for Eligibility form to any person on request.
(i) An Application for Eligibility is not required for a CQE if a complete application to become a CQE, as described in paragraph (l)(3) of this section, has been approved by the Regional Administrator on behalf of an eligible community.
(ii) An Application for Eligibility is not required for a CDQ group.
(2) Type of eligibility. A person must indicate on the Application for Eligibility whether the eligibility sought is as:
(i) An individual; or
(ii) A corporation, partnership, or other non-individual entity.
(3) Application filing order. A person may submit the Application for Eligibility with the Application for Transfer or file the Application for Eligibility prior to submitting the Application for Transfer. If a person, as described in paragraph (d)(2)(ii) of this section, files the Application for Eligibility prior to submitting the Application for Transfer, and that person's status subsequently changes, as described in § 679.42(j), that person must resubmit an Application for Eligibility before submitting, or with, the Application for Transfer.
(4) Notification of approval. Applicants will be notified by mail of the Regional Administrator's approval of an application for eligibility.
(5) Notification of disapproval. The Regional Administrator will notify the applicant if an Application for Eligibility is disapproved. This notification of disapproval will include:
(i) The disapproved Application for Eligibility.
(ii) An explanation of why the Application for Eligibility was not approved.
(6) Reasons for disapproval. Reasons for disapproval of an Application for Eligibility may include, but are not limited to:
(i) Fewer than 150 days of experience working as an IFQ crew member, unless that person attests in the Application for Eligibility that he or she is an eligible community resident of Adak, AK, who will receive only halibut IFQ in regulatory area 4B or sablefish IFQ in the regulatory area of the Aleutian Islands subarea that is derived from QS held by a CQE on behalf of Adak, AK.
(ii) Lack of compliance with the U.S. citizenship or corporate ownership requirements specified by the definition of “person” at § 679.2.
(iii) An incomplete Application for Eligibility.
(iv) Fines, civil penalties, or other payments due and owing, or outstanding permit sanctions, resulting from Federal fishery violations.
(e) Transfers of QS blocks —(1) General. A QS block must be transferred as an undivided whole, unless the size of the QS block exceeds the use limits specified at § 679.42. If the QS block to be transferred exceeds the use limits specified at § 679.42, the Regional Administrator will divide the block into two blocks, one block containing the maximum amount of QS allowable under the QS use limits and the other block containing the residual QS.
(2) Sablefish. QS blocks for the same IFQ regulatory area and vessel category that represent less than 5,000 lb (2.3 mt) of sablefish IFQ, based on the 1996 TAC share for fixed gear sablefish in a specific IFQ regulatory area and the QS pool for that IFQ regulatory area on January 31, 1996, may be consolidated into larger QS blocks provided that the consolidated blocks do not represent greater than 5,000 lbs (2.3 mt) of sablefish IFQ based on the preceding criteria. A consolidated block cannot be divided and is considered a single block for purposes of use and transferability. The maximum number of QS units that may be consolidated into a single QS block in each IFQ regulatory area is as follows:
(i) Southeast Outside district: 33,270 QS.
(ii) West Yakutat district: 43,390 QS.
(iii) Central GOA regulatory area: 46,055 QS.
(iv) Western GOA regulatory area: 48,410 QS.
(v) Aleutian Islands subarea: 99,210 QS.
(vi) Bering Sea subarea: 91,275 QS.
(3) Halibut. QS blocks for the same IFQ regulatory area and vessel category that represent less than 3,000 lb (1.4 mt) of halibut IFQ, based on the 1996 catch limit for halibut in a specific IFQ regulatory area and the QS pool for that IFQ regulatory area on January 31, 1996, may be consolidated into larger QS blocks provided that the consolidated blocks do not represent greater than 3,000 lb (1.4 mt) of halibut IFQ based on the preceding criteria. In Areas 2C and 3A, QS blocks for the same IFQ regulatory area and vessel category that represent less than 5,000 lb (2.3 mt) of halibut IFQ, based on the 1996 catch limit for halibut in a specific IFQ regulatory area and the QS pool for that IFQ regulatory area on January 31, 1996, may be consolidated into larger QS blocks provided that the consolidated blocks do not represent greater than 5,000 lb (2.3 mt) of halibut IFQ based on the preceding criteria. A consolidated block cannot be divided and is considered a single block for purposes of use and transferability. The maximum number of QS units that may be consolidated into a single block in each IFQ regulatory area is as follows:
(i) Area 2C: 33,320 QS.
(ii) Area 3A: 46,520 QS.
(iii) Area 3B: 44,193 QS.
(iv) Subarea 4A: 22,947 QS.
(v) Subarea 4B: 15,087 QS.
(vi) Subarea 4C: 30,930 QS.
(vii) Subarea 4D: 26,082 QS.
(viii) Subarea 4E: 0 QS.
(f) Transfer of QS or IFQ with restrictions. If QS or IFQ must be transferred as a result of a court order, operation of law, or as part of a security agreement, but the person receiving the QS or IFQ by transfer does not meet all of the eligibility requirements of this section, the Regional Administrator will approve the Application for Transfer with restrictions. The Regional Administrator will not assign IFQ resulting from the restricted QS to any person. IFQ with restrictions may not be used for harvesting halibut or sablefish with fixed gear. The QS or IFQ will remain restricted until:
(1) The person who received the QS or IFQ with restrictions meets the eligibility requirements of this section and the Regional Administrator approves an Application for Eligibility for that person; or
(2) The Regional Administrator approves the Application for Transfer from the person who received the QS or IFQ with restrictions to a person who meets the requirements of this section.
(g) Transfer restrictions. (1) Except as provided in paragraph (f), paragraph (g)(2), paragraph (l), paragraph (n) or paragraph (o) of this section, only persons who are IFQ crew members, or who were initially issued QS assigned to vessel categories B, C, or D, and meet the eligibility requirements in this section, may receive by transfer QS assigned to vessel categories B, C, or D, or the IFQ resulting from it.
(2) Except as provided in paragraph (g)(3) of this section, only persons who are IFQ crew members, and meet the other requirements in this section, may receive by transfer QS assigned to vessel categories B, C, or D, or the IFQ resulting from it, in IFQ regulatory area 2C for halibut or in the IFQ regulatory area east of 140° W. long. for sablefish.
(3) Individuals who were initially issued QS assigned to vessel categories B, C, or D may transfer that QS to a corporation that is solely owned by the same individual. Such transfers of QS assigned to vessel categories B, C, or D in IFQ regulatory area 2C for halibut or in the IFQ regulatory area east of 140° W. long. for sablefish will be governed by the use provisions of § 679.42(i); the use provisions pertaining to corporations at § 679.42(j) shall not apply.
(4) The Regional Administrator will not approve an Application for Transfer of QS assigned to vessel categories B, C, or D subject to a lease or any other condition of repossession or resale by the person transferring QS, except as provided in paragraphs (h) and (m) of this section, or by court order, operation of law, or as part of a security agreement. The Regional Administrator may request a copy of the sales contract or other terms and conditions of transfer between two persons as supplementary information to the transfer application.
(5) A CQE may not hold QS in halibut IFQ regulatory area 2C that is assigned to vessel category D.
(i) A CQE may not hold QS in halibut IFQ regulatory area 3A that is assigned to vessel category D on behalf of a community that is located in halibut IFQ regulatory areas 2C or 3B as listed in Table 21 to part 679.
(ii) In aggregate, CQEs may not hold an amount of QS in halibut IFQ regulatory area 3A that is assigned to vessel category D in excess of 1,233,740 QS units.
(6) IFQ derived from QS held by a CQE on behalf of an eligible community:
(i) In the GOA may be used only by an eligible community resident of that community.
(ii) In the Aleutian Islands subarea may be used by any person who has received an approved Application for Eligibility as described in paragraph (d) of this section prior to February 28, 2028 and only by an eligible community resident of Adak, AK, after February 28, 2028.
(7) A CQE may transfer QS:
(i) To generate revenues to provide funds to meet administrative costs for managing the community QS holdings;
(ii) To generate revenue to improve the ability of residents within the community to participate in the halibut and sablefish IFQ fisheries;
(iii) To generate revenue to purchase QS to yield IFQ for use by community residents;
(iv) To dissolve the CQE; or
(v) As a result of a court order, operation of law, or as part of a security agreement.
(8) If the Regional Administrator determines that a CQE transferred QS for purposes other than those specified in paragraph (g)(7) of this section, then:
(i) The CQE must divest itself of any remaining QS holdings and will not be eligible to receive QS by transfer for a period of three years after the effective date of final agency action on the Regional Administrator's determination; and
(ii) The Regional Administrator will not approve a CQE to represent the eligible community in whose name the CQE transferred quota for a period of three years after the effective date of final agency action on the Regional Administrator's determination.
(9) For transfers of QS to an RQE, the RQE may only receive halibut QS that is assigned to IFQ regulatory area 2C or 3A.
(10) For transfers of QS from an RQE:
(i) Quota category and block designations at time of purchase by an RQE are retained if QS is transferred to an eligible QS holder for use in the IFQ program.
(ii) NMFS will not issue any IFQ from any QS transferred from an RQE to a QS holder for use in the IFQ program for a calendar year if that QS resulted in the issuance of RFQ to an RQE during that calendar year.
(11)(i) To maintain eligibility as the RQE authorized by NMFS, the RQE must be a non-profit entity incorporated under the laws of the State of Alaska and recognized as exempt from Federal income tax by the Internal Revenue Service as required by paragraph (n)(1)(ii) of this section.
(ii) If the Regional Administrator determines the RQE approved by NMFS does not meet the requirements specified in paragraph (n)(1) of this section, NMFS will notify the RQE of the Regional Administrator's determination and specify that the RQE has 60 days to meet the requirements in paragraph (n)(1) of this section to maintain eligibility as the RQE authorized by NMFS.
(iii) If the RQE demonstrates to NMFS within 60 days of notification that it meets the requirements in paragraph (n)(1) of this section, NMFS will notify the RQE that it remains the authorized RQE.
(iv) If the RQE does not demonstrate to NMFS within 60 days of notification that it meets the requirements in paragraph (n)(1) of this section, NMFS will issue an initial administrative determination (IAD):
(A) Revoking authorization of the RQE;
(B) Disallowing the RQE from receiving any QS by transfer;
(C) Requiring the CQE to divest of any QS that it holds; and
(D) Withholding the issuance of RFQ based on any QS that the RQE holds.
(v) The RQE will have the opportunity to appeal the IAD through the National Appeals Office under the provisions established at 15 CFR part 906.
(h) Transfer of IFQ. (1) Pursuant to paragraph (a) of this section, an Application for Transfer must be approved by the Regional Administrator before a person may use any IFQ that results from a direct transfer to harvest halibut or sablefish. After approving the Application for Transfer, the Regional Administrator will change any IFQ accounts affected by the approved transfer and issue all necessary IFQ permits.
(2) IFQ resulting from categories B, C, or D QS may not be transferred separately from its originating QS, except as provided in paragraph (d), (f), (k), (l), (m), or (o) of this section.
(i) Transfer across catcher vessel categories —(1) CDQ compensation. Persons issued CDQ compensation QS in a catcher vessel category, pursuant to § 679.41(j), and in an IFQ regulatory area in which they do not hold QS other than CDQ compensation QS, may use that CDQ compensation QS on any catcher vessel. This exemption from catcher vessel categories ends upon the first transfer of the CDQ compensation QS. CDQ compensation QS being transferred will be permanently assigned to a specific catcher vessel category as designated by the person receiving the transfer.
(2) CDQ compensation QS definition. For purposes of this paragraph (i), CDQ compensation QS is QS issued as compensation for halibut and sablefish harvest privileges foregone due to the CDQ Program, as provided in paragraph (j) of this section.
(j) Compensation for CDQ allocations. (1) The Regional Administrator will compensate persons that receive a reduced halibut QS in IPHC regulatory areas 4B, 4C, 4D, or 4E because of the halibut CDQ program by adding halibut QS from IPHC regulatory areas 2C, 3A, 3B, and 4A. This compensation of halibut QS from areas 2C, 3A, 3B, and 4A will be allocated in proportion to the amount of halibut QS foregone due to the CDQ allocation authorized by this section.
(2) The Regional Administrator will compensate persons that receive a reduced sablefish QS in any BSAI IFQ regulatory area because of the sablefish CDQ program by taking sablefish QS from the IFQ regulatory areas of the GOA and allocating it in proportion to the loss suffered by persons in the BSAI area. Such additional compensation of sablefish QS will be allocated in proportion to the amount of sablefish QS foregone due to the CDQ allocation authorized by this section.
(3) Persons initially issued QS for IFQ regulatory areas in which a portion of the TAC is allocated to the CDQ Program will be compensated for halibut and sablefish harvest privileges foregone due to the CDQ Program. If a person does not hold QS in an IFQ regulatory area on the date the compensation is issued, that person's compensation will be issued as unblocked. If a person does hold QS in an IFQ regulatory area on the date compensation is issued, that person's compensation will be added to their existing QS in that IFQ regulatory area. The resulting QS amount will be blocked or unblocked according to the criteria found at § 679.40(a). Compensation will be calculated for each non-CDQ area using the following formula:
(k) Survivorship transfer privileges —(1) On the death of an individual who holds QS or IFQ, the surviving spouse or, in the absence of a surviving spouse, a beneficiary designated pursuant to paragraph (k)(2) of this section or the estate representative, receives all QS and IFQ held by the decedent by right of survivorship, unless a contrary intent was expressed by the decedent in a will. The Regional Administrator will approve an Application for Transfer to the surviving spouse, designated beneficiary, or estate representative when sufficient evidence has been provided to verify the death of the individual.
(2) QS holders may provide the Regional Administrator with the name of a designated beneficiary from the QS holder's immediate family to receive survivorship transfer privileges in the event of the QS holder's death and in the absence of a surviving spouse.
(3) The Regional Administrator will approve an Application for Transfer of IFQ for a period of 3 calendar years following the date of death of an individual to a designated beneficiary. NMFS will allow the transfer of IFQ only resulting from the QS transferred to the surviving spouse or, in the absence of a surviving spouse, from a beneficiary from the QS holder's immediate family designated pursuant to paragraph (k)(2) of this section or from an estate representative to a person eligible to receive IFQ under the provisions of this section, notwithstanding the limitations on transfers of IFQ in paragraph (h)(2) of this section.
(l) Transfer of QS to CQEs. (1) Each eligible community must designate a CQE to transfer and hold QS on behalf of that community.
(2) Each eligible community may designate only one CQE to hold QS on behalf of that community at any one time.
(3) Prior to initially receiving QS by transfer on behalf of a specific eligible community, a non-profit entity that intends to represent that eligible community as a CQE must have approval from the Regional Administrator. To receive that approval, the non-profit entity seeking to become a CQE must submit a complete application to become a CQE to the Regional Administrator. The Regional Administrator will provide a copy of the complete application to the Alaska Department of Community and Economic Development, Commissioner, P.O. Box 110809, Juneau, AK 99811-0809. NMFS will consider comments received from the Alaska Department of Community and Economic Development when reviewing applications for a non-profit entity to become a CQE. The Alaska Department of Community and Economic Development must submit comments on an application to the Regional Administrator within 30 days of receipt of the application in order for those comments to be considered by the Regional Administrator during the approval process. If an application is disapproved, than that determination may be appealed under the provisions established at 15 CFR part 906. A complete application to become a CQE consists of:
(i) The articles of incorporation under the laws of the State of Alaska for that non-profit entity, except that a non-profit entity that is representing the Metlakatla Indian Village may provide articles of incorporation under Federal Law;
(ii) A statement indicating the eligible community, or communities, represented by that non-profit entity for purposes of holding QS;
(iii) Management organization information, including:
(A) The bylaws of the non-profit entity;
(B) A list of key personnel of the managing organization including, but not limited to, the board of directors, officers, representatives, and any managers;
(C) A description of how the non-profit entity is qualified to manage QS on behalf of the eligible community, or communities, it is designated to represent, and a demonstration that the non-profit entity has the management, technical expertise, and ability to manage QS and IFQ; and
(D) The name of the non-profit organization, taxpayer ID number, NMFS person number, permanent business mailing addresses, name of contact persons and additional contact information of the managing personnel for the non-profit entity, resumes of management personnel, name of community or communities represented by the CQE, name of contact for the governing body of each community represented, date, name and signature of applicant.
(iv) A statement describing the procedures that will be used to determine the distribution of IFQ to eligible community residents and non-residents of the community represented by that CQE, including:
(A) Procedures used to solicit requests from eligible community residents and non-residents to lease IFQ; and
(B) Criteria used to determine the distribution of IFQ leases among qualified community residents and non-residents and the relative weighting of those criteria.
(v) A statement of support from the governing body of the eligible community as that governing body is identified in Table 21 to this part. That statement of support is:
(A) A resolution from the City Council or other official governing body for those eligible communities incorporated as first or second class cities in the State of Alaska;
(B) A resolution from the tribal government authority recognized by the Bureau of Indian Affairs for those eligible communities that are not incorporated as first or second class cities in the State of Alaska; but are represented by a tribal government authority recognized by the Secretary of the Interior; or
(C) A resolution from a non-profit community association, homeowner association, community council, or other non-profit entity for those eligible communities that are not incorporated as first or second class cities in the State of Alaska, and is not represented by a tribal government authority recognized by the Bureau of Indian Affairs. The non-profit entity that provides a statement of support must:
( 1 ) Have articles of incorporation as a non-profit community association, homeowner association, community council, or other non-profit entity; and
( 2 ) Have an established relationship with the State of Alaska Department of Community and Economic Development for purposes of representing that community for governmental functions.
(D) If an eligible community is not incorporated as a first or second class city in the State of Alaska, is not represented by a tribal government authority recognized by the Secretary of the Interior, and does not have a non-profit community association, homeowner association, community council, or other non-profit entity within that community with an established relationship with the Alaska Department of Community and Economic Development for purposes of representing that community for purposes of governmental functions, then the Regional Administrator, NMFS, will not consider any statement from a non-profit entity representing that community until that community:
( 1 ) Is incorporated as a first or second class city in the State of Alaska;
( 2 ) Establishes a tribal government authority recognized by the Secretary of the Interior; or
( 3 ) Establishes a non-profit community association, homeowner association, community council, or other non-profit entity within that community that meets the requirements established in paragraph (E) of this section.
(E) If a community described under paragraph (l)(3)(v)(D) of this section establishes a non-profit community association, homeowner association, community council, or other non-profit entity within that community, then the Regional Administrator, NMFS, will consider any recommendations from this entity to support a particular applicant after reviewing:
( 1 ) Petitions from residents affirming that the non-profit community association, homeowner association, community council, or other non-profit entity within that community represents the residents within that community; and
( 2 ) Comments from the State of Alaska Department of Community and Economic Development on the articles of incorporation for that non-profit entity and the ability of that non-profit entity to adequately represent the interests of that community for purposes of governmental functions.
( 3 ) If the Regional Administrator determines that this statement of support is not adequate, than that determination may be appealed under the provisions established at 15 CFR part 906.
(4) The governing body of an eligible community as that governing body is identified in Table 21 to this part, must provide authorization for any transfer of QS by the CQE that holds QS on behalf of that eligible community prior to that transfer of QS being approved by NMFS. This authorization must be submitted as part of the Application for Transfer. That authorization consists of a signature on the Application for Transfer by a representative of the governing body that has been designated by that governing body to provide such authorization to approve the transfer of QS.
(m) Temporary military transfers. In the event of a military mobilization or order to report for military service affecting a QS holder that prevents him or her from being able to participate in the halibut or sablefish IFQ fisheries, the Regional Administrator may approve a temporary military transfer for the IFQ derived from the QS held by a QS holder affected by the military mobilization.
(1) General. A temporary military transfer will be approved if the QS holder demonstrates that he or she is unable to participate in the IFQ fishery for which he or she holds QS because of a military mobilization, order to report for military service, or active duty military service.
(2) Eligibility. To be eligible to receive a temporary military transfer, a QS holder must meet all of the following requirements:
(i) Be a member of a branch of the National Guard or a member of a reserve component;
(ii) Possess one or more catcher vessel IFQ permits;
(iii) Not qualify for a hired master exception under § 679.42(i)(1);
(iv) Be in active duty military service as that term is defined at 10 U.S.C. 101(d)(1), be under a call to active service authorized by the President or the Secretary for a period of more than 30 consecutive days under 32 U.S.C. 502(f), or in the case of a member of a reserve component, have been ordered to report for military service beginning on the date of the member's receipt of the order and ending on the date on which the member reports for active duty military service.
(3) Application. A QS holder may apply for a temporary military transfer by submitting an application for temporary transfer of halibut/sablefish IFQ to the Alaska Region, NMFS. NMFS will transfer, upon approval of the application, the applicable IFQ from the applicant (transferor) to the recipient (transferee). An application for temporary transfer of halibut/sablefish IFQ is available at https://www.fisheries.noaa.gov/region/alaska or by calling 1-800-304-4846. A complete application must include all of the following:
(i) The 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 e-mail address (if any). A temporary mailing address may be provided, if appropriate.
(ii) The 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 e-mail address (if any). A temporary mailing address may be provided, if appropriate.
(iii) 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.
(iv) Documentation of active military mobilization or deployment. This documentation must include the following:
(A) A copy of official documentation such as valid military orders or call that direct the transferor to report to active duty military service, to mobilize for a military deployment, or to report to active service.
(B) A concise description of the nature of the military deployment or active duty military service, including verification that the applicant is unable to participate in the IFQ fishery for which he or she holds IFQ permits during the IFQ season because of his/her active duty military service.
(v) The signatures and printed names of the transferor and transferee, and date.
(4) Restrictions. (i) A temporary military transfer shall be valid only during the calendar year for which the associated IFQ is issued.
(ii) A temporary military transfer will be issued only for the IFQ derived from the QS held by the applicant.
(5) Temporary military transfer evaluations and appeals —(i) Initial evaluation. The Regional Administrator will evaluate an application for a temporary military transfer submitted in accordance with paragraphs (c)(1) through (c)(9) of this section. An applicant who fails to submit the information specified in the application for a temporary military transfer will be provided a reasonable opportunity to submit the specified information or submit a revised application.
(ii) Initial administrative determination (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 15 CFR part 906.
(n) Transfer of halibut QS to an RQE —(1) RQE organizational structure. (i) The RQE must be a single entity representing IFQ regulatory Areas 2C and 3A.
(ii) The RQE must be a non-profit entity incorporated under the laws of the State of Alaska and recognized as exempt from Federal income tax by the Internal Revenue Service; and
(iii) The RQE must submit an annual report to NMFS and the Council detailing RQE activities during the prior year according to § 679.5(v).
(2) Application for Eligibility. Prior to initially receiving QS by transfer, a non-profit entity that intends to participate in the Halibut IFQ Program and purchase and hold halibut QS in Area 2C and Area 3A as the RQE must have approval from the Regional Administrator. To receive that approval, the non-profit entity seeking to become an RQE must submit a complete “Application for a Non-profit Entity to be Designated as a Recreational Quota Entity (RQE)” (available on the NMFS Alaska Region website at https://alaskafisheries.noaa.gov/ ). NMFS will approve only one entity as the RQE. A complete application to become an RQE must include:
(i) The articles of incorporation under the laws of the State of Alaska for that non-profit entity;
(ii) Acknowledgement from the Internal Revenue Service that the non-profit entity is exempt from Federal income tax under section 501(a) of the Internal Revenue Code; and
(iii) Management organization information, including:
(A) The bylaws of the non-profit entity;
(B) A list of key personnel of the managing organization including, but not limited to, the RQE board of directors, officers, representatives, and any managers;
(C) A description of how the non-profit entity is qualified to manage QS on behalf of charter fishery participants and a demonstration that the non-profit entity has the management, technical expertise, and ability to manage QS and RFQ;
(D) The name of the non-profit organization, taxpayer ID number, NMFS person number, permanent business mailing addresses, name of contact persons and additional contact information of the managing personnel for the non-profit entity, resumes of management personnel, name and signature of applicant; and
(iv) A statement describing the procedures that will be used to determine the acquisition of funds to purchase QS.
(3) Address for submittal of application. Regional Administrator, NMFS, P.O. Box 21668, Juneau, AK 99802.
(4) Approval. NMFS will approve the first complete application received. If an application is approved, NMFS will notify the RQE by mail, unless another mode of communication is requested on the application.
(5) Disapproval. If an application is disapproved, that determination may be appealed under the provisions established at 15 CFR part 906.
(o) Transfer of IFQ to CDQ groups. (1) A QS holder who holds fewer than 76,355 units of halibut QS in IFQ regulatory area 4B may transfer halibut IFQ assigned to vessel categories B, C, or D in IFQ regulatory area 4B to a CDQ group that receives an allocation of IFQ regulatory area 4B halibut CDQ if the annual commercial halibut catch limit, as defined in § 300.61 of this title, for Area 4B is less than 1 million pounds in that calendar year.
(2) A QS holder in IFQ regulatory areas 4C or 4D may transfer halibut IFQ assigned to vessel categories B, C, or D in IFQ regulatory areas 4C or 4D to a CDQ group that receives an allocation of halibut CDQ in that IFQ regulatory area if the annual commercial halibut catch limit, as defined in § 300.61 of this title, for Area 4CDE is less than 1.5 million pounds in that calendar year.
(3) A QS holder must meet the requirements in paragraph (c)(13) of this section to transfer halibut IFQ assigned to vessel categories B, C, or D in IFQ regulatory areas 4B, 4C, or 4D to a CDQ group.
(4) A CDQ group that receives halibut IFQ by transfer may not transfer that halibut IFQ to any other person.