[Code of Federal Regulations]
[Title 50, Volume 9]
[Revised as of January 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 50CFR679.40]

[Page 460-464]
 
                    TITLE 50--WILDLIFE AND FISHERIES
 
                   DEPARTMENT OF COMMERCE (CONTINUED)
 
PART 679_FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA--Table of 
 
         Subpart D_Individual Fishing Quota Management Measures
 
Sec.  679.40  Sablefish and halibut QS.


    The Regional Administrator shall annually divide the TAC of halibut 
and sablefish that is apportioned to the fixed gear fishery pursuant to 
the annual management measures published in the Federal Register 
pursuant to Sec.  300.62 of chapter III of this title and Sec.  679.20, 
minus the CDQ reserve, among qualified halibut and sablefish quota share 
holders, respectively.
    (a) Initial allocation of QS--(1) General. The Regional 
Administrator shall initially assign to qualified persons, on or after 
October 18, 1994, halibut and sablefish fixed gear fishery QS that are 
specific to IFQ regulatory areas and vessel categories. QS will be 
assigned as a block in the appropriate IFQ regulatory area and vessel 
category, if that QS would have resulted in an allocation of less than 
20,000 lb (9 mt) of IFQ for halibut or sablefish based on the 1994 TAC 
for fixed gear in those fisheries for specific IFQ regulatory areas and 
the QS pools of those fisheries for specific IFQ regulatory areas as of 
October 17, 1994.
    (2) Qualified person. (i) As used in this section, a ``qualified 
person'' means a ``person,'' as defined in Sec.  679.2:
    (A) That owned a vessel that made legal landings of halibut or 
sablefish, harvested with fixed gear, from any IFQ regulatory area in 
any QS qualifying year; or
    (B) That leased a vessel that made legal landings of halibut or 
sablefish, harvested with fixed gear, from any IFQ regulatory area in 
any QS qualifying year. A person who owns a vessel cannot be a qualified 
person based on the legal fixed gear landings of halibut or sablefish 
made by a person who leased the vessel for the duration of the lease.
    (C) Who is a citizen of the United States at the time of application 
for QS.
    (D) Who is a corporation, partnership, association, or other entity 
that would have qualified to document a fishing vessel as a vessel of 
the United States during the QS qualifying years of 1988, 1989, and 
1990.
    (ii) Qualified persons, or their successors-in-interest, must exist 
at the time of their application for QS.
    (iii) A former partner of a dissolved partnership or a former 
shareholder of a dissolved corporation who would otherwise qualify as a 
person may apply for QS in proportion to his or her interest in the 
dissolved partnership or corporation.
    (iv) Sablefish harvested within Prince William Sound, or under a 
State of Alaska limited entry program, will not be considered in 
determining whether a person is a qualified person.
    (3) Qualification for QS--(i) Year. A QS qualifying year is 1988, 
1989, or 1990.
    (ii) Vessel ownership. Evidence of vessel ownership shall be limited 
to the following documents, in order of priority:
    (A) For vessels required to be documented under the laws of the 
United States, the USCG abstract of title issued in respect of that 
vessel.
    (B) A certificate of registration that is determinative as to vessel 
ownership.
    (C) A bill of sale.
    (iii) Vessel lease. Conclusive evidence of a vessel lease will 
include a written vessel lease agreement or a notarized statement from 
the vessel owner and lease holder attesting to the existence of a vessel 
lease agreement at any time during the QS qualifying years. Conclusive 
evidence of a vessel lease must identify the leased vessel and indicate 
the name of the lease holder and the period of time during which the 
lease was in effect. Other evidence, which may not be conclusive, but 
may tend to support a vessel lease, may also be submitted.
    (iv) Ownership interest. Evidence of ownership interest in a 
dissolved partnership or corporation shall be limited to corporate 
documents (e.g., articles of incorporation) or notarized statements 
signed by each former partner, shareholder or director, and specifying 
their proportions of interest.

[[Page 461]]

    (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 WPRs required under 
Sec.  679.5. Sablefish harvested within Prince William Sound or under a 
State of Alaska limited entry program will not be considered in 
determining qualification to receive QS, nor in calculating initial QS.
    (4) Calculation of initial QS--(i) Halibut QS. The Regional 
Administrator shall calculate the halibut QS for any qualified person in 
each IFQ regulatory area based on that person's highest total legal 
landings of halibut in each IPHC regulatory area for any 5 years of the 
7-year halibut QS base period 1984 through 1990. The sum of all halibut 
QS for an IFQ regulatory area will be the halibut QS pool for that area.
    (ii) Sablefish QS. The Regional Administrator shall calculate the 
sablefish QS for any qualified person in each IFQ regulatory area based 
on that person's highest total legal landings of sablefish in each 
groundfish reporting area for any 5 years of the 6-year sablefish QS 
base period 1985 through 1990. The sum of all sablefish QS for an IFQ 
regulatory area will be the sablefish QS pool for that area.
    (iii) CDQ program. Each initial QS calculation will be modified to 
accommodate the CDQ program prescribed at subpart C of this part.
    (5) Assignment of QS to vessel categories--(i) LOA. Each qualified 
person's QS will be assigned to a vessel category based on the LOA of 
vessel(s) from which that person made fixed gear legal landings of 
groundfish or halibut in the most recent year of participation and the 
product type landed. As used in this paragraph (a)(5), ``the most recent 
year of participation'' means the most recent of 4 calendar years in 
which any groundfish or halibut were harvested using fixed gear, as 
follows: 1988, 1989, or 1990; or calendar year 1991 prior to September 
26, 1991.
    (ii) Vessel categories. QS and its associated IFQ assigned to vessel 
categories include:
    (A) Category A QS and associated IFQ, which authorizes an IFQ 
cardholder to harvest and process IFQ species on a vessel of any length;
    (B) Category B QS and associated IFQ, which authorizes an IFQ 
cardholder to harvest IFQ species on a vessel of any length, except as 
provided in Sec.  679.42(a);
    (C) Category C QS and associated IFQ, which authorizes an IFQ 
cardholder to harvest IFQ species on a vessel less than or equal to 60 
ft (18.3 m) LOA:
    (D) Category D QS and associated IFQ, which authorizes an IFQ 
cardholder to harvest IFQ halibut on a vessel less than or equal to 35 
ft (10.7 m) LOA;
    (iii) QS assignment. A qualified person's QS will be assigned:
    (A) To vessel category A if, at any time during his/her most recent 
year of participation, that person's vessel processed any groundfish or 
halibut caught with fixed gear.
    (B) To vessel category B if, at any time during his/her most recent 
year of participation, that person's vessel was greater than 60 ft (18.3 
m) LOA and did not process any groundfish or halibut caught with fixed 
gear.
    (C) To each applicable vessel category in proportion to the landings 
of halibut or sablefish made by that person if, at any time during their 
most recent year of participation, that person used more than one vessel 
in different categories.
    (iv) Sablefish QS. A qualified person's sablefish QS will be 
assigned:
    (A) To vessel category C if, at any time during his/her most recent 
year of participation, that person's vessel was less than or equal to 60 
ft (18.3 m) LOA and did not process any groundfish or halibut caught 
with fixed gear.

[[Page 462]]

    (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 or partnership, or dissolved corporation or 
partnership making the request; contact numbers; vessel identification, 
length overall, and purchase date; and information on any vessel leasing 
arrangement pertinent to the claim of eligibility.
    (ii) Application period. An application period of no less than 180 
days will be specified by notification in the Federal Register and other 
information sources that the Regional Administrator deems appropriate.
    (iii) Complete application. Complete applications received by the 
Regional Administrator will be acknowledged. An incomplete application 
will be returned to the applicant with specific kinds of information 
identified that are necessary to make it complete.
    (7) Insufficient documentation. Halibut and sablefish catch history, 
vessel ownership or lease data, and other information supplied by an 
applicant will be compared with data compiled by the Regional 
Administrator. If additional data presented in an application are not 
consistent with the data compiled by the Regional Administrator, the 
applicant will be notified of insufficient documentation. The applicant 
will have 90 days to submit corroborating documents (as specified in 
paragraph (a) of this section) in support of his/her application or to 
resubmit a revised application. All applicants will be limited to one 
opportunity to provide corroborating documentation or a revised 
application in response to notification of insufficient documentation.
    (8) Verified data. Uncontested data in applications will be approved 
by the Regional Administrator. Based on these data, the Regional 
Administrator will calculate each applicant's initial halibut and 
sablefish QS, as provided in paragraph (b) of this section, for each IFQ 
regulatory area, respectively, and will add each applicant's halibut and 
sablefish QS for an IFQ regulatory area to the respective QS pool for 
that area.
    (9) Unverified data. Catch history, vessel ownership, or lease data 
that cannot be verified by the Regional Administrator, following the 
procedure described in paragraph (a)(7) of this section, will not 
qualify for QS. An initial determination denying QS on the grounds that 
claimed catch history, vessel ownership or lease data were not verified 
may be appealed following the procedure described in Sec.  679.43. Quota 
share reflecting catch history, vessel ownership, or lease data that are 
contested between two or more applicants,

[[Page 463]]

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.
    (b) Annual allocation of IFQ. The Regional Administrator shall 
assign halibut or sablefish IFQs to each person holding unrestricted QS 
for halibut or sablefish, respectively, up to the limits prescribed in 
Sec.  679.42 (e) and (f). Each assigned IFQ will be specific to an IFQ 
regulatory area and vessel category, and will represent the maximum 
amount of halibut or sablefish that may be harvested from the specified 
IFQ regulatory area and by the person to whom it is assigned during the 
specified fishing year, unless the IFQ assignment is changed by the 
Regional Administrator within the fishing year because of an approved 
transfer or because all or part of the IFQ is sanctioned for violating 
rules of this part.
    (c) Calculation of annual IFQ allocation--(1) General. The annual 
allocation of IFQ to any person (person p) in any IFQ regulatory area 
(area a) will be equal to the product of the TAC of halibut or sablefish 
by fixed gear for that area (after adjustment for purposes of the 
Western Alaska CDQ Program) and that person's QS divided by the QS pool 
for that area. Overages will be subtracted from a person's IFQ pursuant 
to paragraph (d) of this section. Expressed algebraically, the annual 
IFQ allocation formula is as follows:

IFQpa = [(fixed gear TACa - CDQ 
    reservea) x (QSpa/QS poola)] - 
    overage of IFQpa.

    (2) QS amounts. For purposes of calculating IFQs for any fishing 
year, the amount of a person's QS and the amount of the QS pool for any 
IFQ regulatory area will be the amounts on record with the Alaska 
Region, NMFS, as of 1200 hours, A.l.t., on January 31 of that year.
    (3) IFQ permit. The Regional Administrator shall issue to each QS 
holder, pursuant to Sec.  679.4, an IFQ permit accompanied by a 
statement specifying the maximum amount of halibut and sablefish that 
may be harvested with fixed gear in a specified IFQ regulatory area and 
vessel category as of January 31 of that year. Such IFQ permits will be 
mailed to each QS holder at the address on record for that person after 
the beginning of each fishing year but prior to the start of the annual 
IFQ fishing season.
    (d) Ten-percent adjustment policy. A person's annual IFQ account 
will be adjusted in the year following a determination that the person 
harvested or landed IFQ species in an amount is greater than the amount 
available in the person's annual IFQ account and if the amount greater 
than the amount available does not exceed 10 percent of the amount 
available in the person's annual IFQ account at the time of landing. The 
adjustment would be a deduction of the amount of IFQ species harvested 
or landed that was determined to exceed the amount available in the 
person's annual IFQ account and will apply to any person to whom the 
affected IFQ is allocated in the year following the determination.
    (e) Underages. Underages of up to 10 percent of a person's total 
annual IFQ account for a current fishing year will be added to that 
person's annual IFQ account in the year following determination of the 
underage. This underage adjustment to the annual IFQ allocation will be 
specific to IFQ species, IFQ regulatory area, and vessel category for 
which an IFQ is calculated, and will apply to any person to whom the 
affected IFQ is allocated in the year following determination of an 
underage.
    (f) Harvesting privilege. Quota shares allocated or permits issued 
pursuant to this part do not represent either an absolute right to the 
resource or any interest that is subject to the ``takings'' provision of 
the Fifth Amendment of the U.S. Constitution. Rather, such quota shares 
or permits represent only

[[Page 464]]

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 Sec.  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 Sec.  
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.

[61 FR 31230, June 19, 1996, as amended at 61 FR 35579, July 5, 1996; 61 
FR 41525, Aug. 9, 1996; 61 FR 43314, Aug. 22, 1996; 62 FR 59299, Nov. 3, 
1997; 66 FR 27910, May 21, 2001; 67 FR 4133, Jan. 28, 2002; 71 FR 36492, 
June 27, 2006]