(a) General. This section establishes an IBQ Program for eligible Atlantic Tunas Longline permit holders that use pelagic longline gear under this part and addresses Atlantic Tunas Purse Seine category leasing.
(1) Overview. Under the IBQ Program, NMFS will assign eligible Atlantic Tunas Longline permit holders initial IBQ shares equivalent to a percentage of the annual Longline category quota. Purse Seine Category quota shares are allocated separately pursuant to Sec. 635.27(a)(4).
(2) Electronic IBQ System. IBQ Program participants, Atlantic Tunas Purse Seine category participants, and other permit holders eligible to lease IBQ allocations under paragraph (c) of this section, must have access to the electronic IBQ system and set up an IBQ account on that system as instructed by NMFS.
(b) IBQ allocation and usage. An IBQ quota allocation is the amount of bluefin tuna (whole weight) in metric tons (mt), which an IBQ Program participant is allotted to account for incidental catch of bluefin tuna during a given calendar year. Unless otherwise required under paragraph (b)(5) of this section, an Atlantic Tunas Longline permitted vessel's initial IBQ allocation for a particular year is derived by multiplying its IBQ share (percentage) by the Longline category quota for that year.
(1) Annual calculation and notification of IBQ allocations. Annually, as described in detail in paragraph (f) of this section, NMFS will notify IBQ share recipients of their IBQ allocation for the next calendar year. IBQ allocations expire at the end of each calendar year.
(2) Regional designations. As described further under paragraph (k)(3) of this section, all IBQ shares and resultant allocations are designated as either ``Gulf of Mexico'' or ``Atlantic'' based upon the geographic location of sets as reported to NMFS under the requirements of Sec. 635.5. Regional percentages determine the share and allocation within the two pelagic longline (PLL) share categories: Gulf of Mexico (PLL GOM) and Atlantic (PLL ATL). PLL GOM shares and resultant allocations can be used to fish with pelagic longline gear in either the Gulf of Mexico or the Atlantic regions. PLL ATL shares and resultant allocations can only be used to fish with pelagic longline gear in the Atlantic region. Purse Seine category annual allocations can only be used to fish in the Atlantic region, even if leased to a PLL participant. For the purposes of this section, the Gulf of Mexico region includes all waters of the U.S. EEZ west and north of the boundary stipulated at 50 CFR 600.105(c) and the Atlantic region includes all other waters of the Atlantic Ocean with the exception regarding fishing taking place in the Northeast Distant (NED) gear restricted area defined at Sec. 635.2 and is further described in paragraph (b)(8) of this section.
(3) Minimum IBQ allocation. Before departing on a fishing trip, a vessel with an eligible Atlantic Tunas Longline category permit that fishes with or has pelagic longline gear onboard, must have the minimum IBQ allocation for either the Gulf of Mexico or Atlantic, depending on fishing location. The minimum IBQ allocation for a vessel fishing in the Gulf of Mexico, or departing for a fishing trip in the Gulf of Mexico, is 0.25 mt ww (551 lb ww). The minimum IBQ allocation for a vessel fishing in the Atlantic or departing for a fishing trip in the Atlantic is 0.125 mt ww (276 lb ww). A vessel owner or operator may not declare into or depart on a fishing trip with pelagic longline gear onboard unless it has the relevant required minimum IBQ allocation for the region in which the fishing activity will occur.
(4) Accounting for bluefin tuna caught. (i) With the exception of vessels fishing in the NED, in compliance with the requirements of paragraph (b)(8) of this section, all bluefin tuna catch (dead discards and landings) must be accounted for and deducted from the vessel's IBQ allocation.
(i) With the exception of vessels fishing in the NED, in compliance with the requirements of paragraph (b)(8) of this section, all bluefin tuna catch (dead discards and landings) must be accounted for and deducted from the vessel's IBQ allocation.
(ii) If the amount of bluefin tuna catch on a particular trip exceeds the amount of the vessel's IBQ allocation, the vessel may continue to fish and complete the trip, but must resolve any quota debt (see paragraph (b)(5) of this section before declaring into or departing on a subsequent fishing trip with pelagic longline gear onboard by acquiring additional IBQ allocation through leasing, as described in paragraph (c) of this section.
(iii) IBQ Program participants, Atlantic Tunas Purse Seine category participants, and dealers must comply with reporting requirements at Sec. 635.5(b)(2)(i)(A). The vessel owner or operator of a vessel that caught bluefin tuna must enter dead discard information from the trip simultaneously with the dealer entering that trip's landings information into the electronic IBQ system (pursuant to Sec. 635.5(b)(2)(i)(A)). The vessel owner or operator must also confirm the accuracy of the dealer reported data at the time of entry in the electronic IBQ System. No IBQ transactions will be processed between 6 p.m. eastern time on December 31 and 2 p.m. Eastern Time on January 1 of each year to provide NMFS time to reconcile IBQ accounts and update IBQ shares and allocations for the upcoming fishing year.
(5) Exceeding an available allocation. This paragraph (b)(5) applies to a vessel with, or an permit holder of, an Atlantic Tunas Longline category permit or an Atlantic Tunas Purse Seine category permit unless otherwise specified. If the amount of bluefin tuna catch for a particular trip (as defined at Sec. 600.10 of this chapter) exceeds the amount of allocation available to the vessel, the permitted vessel is considered to have a ``quota debt'' equal to the difference between the catch and the allocation. For example, if a vessel has an allocation of 0.40 mt (882 lb), and catches 0.50 mt (1,102 lb) of bluefin tuna on a trip, that vessel would have a quota debt of 0.10 mt (220 lb).
(i) Trip level quota debt. Vessels with a quota debt cannot fish with or have gear for which the vessel is permitted onboard until the quota debt is settled by leasing allocation for the appropriate region (per paragraph (c) of this section) and applying the leased allocation to settle the quota debt or through additional allocation (per paragraph (f) of this section) such that the permitted vessel has at least the minimum quota allocation required to fish as specified in paragraph (b)(3) of this section.
(ii) Annual level quota debt. If, by the end of the fishing year, a permit holder does not have adequate allocation (obtained either through leasing under paragraph (c) of this section) or additional allocation under paragraph (f) of this section to settle their vessel's quota debt, the vessel's allocation will be reduced in the amount equal to the quota debt in the subsequent year or years until the quota debt is fully accounted for. A vessel may not fish if it has outstanding quota debt, even across fishing years.
(iii) Association with permit. Quota debt is associated with the vessel's permit, and remains associated with the permit if/when the permit is transferred or sold. At the end of the year, if an owner with multiple permitted vessels has a quota debt on one or more vessels owned, the IBQ system will apply any remaining unused allocation associated with that owner's other vessels to resolve the quota debt.
(6) Duration. IBQ allocation issued under this section is valid for the relevant fishing year unless it is revoked, suspended, or modified or unless the Atlantic Tunas Longline category quota is closed per Sec. 635.28(a).
(7) Unused IBQ allocation. Any IBQ allocation that is unused at the end of the fishing year may not be carried forward by a permit-holder to the following year, but would remain associated with the Longline category as a whole, and subject to the quota regulations under Sec. 635.27, including annual quota adjustments.
(8) The IBQ Program and the Northeast Distant Area (NED). The following restrictions apply to vessels fishing with pelagic longline gear in the NED:
(i) When NED bluefin quota is available. Permitted vessels fishing with pelagic longline gear may fish in the NED, and any bluefin catch will count toward the ICCAT-allocated separate NED quota until the NED quota has been filled. Permitted vessels fishing in the NED are still required to have the minimum IBQ allocation, specified under paragraph (b)(3) of this section to depart on a trip using pelagic longline gear.
(ii) When NED bluefin quota is filled. Permitted vessels fishing with pelagic longline gear may fish in the NED after the ICCAT-allocated separate NED quota has been filled but the permitted vessels must abide by all the requirements of the IBQ program. Bluefin catch will be accounted for using the vessel's IBQ allocation, as described under paragraphs (b)(2) and (k)(3) of this section.
(c) IBQ Allocation Leasing--(1) Eligibility. The permit holders of vessels issued valid Atlantic Tunas Longline permits and participants in the Atlantic Tunas Purse Seine category are eligible to lease IBQ allocation to and/or from each other. A person who holds an Atlantic Tunas Longline permit that is not associated with a vessel may not lease IBQ allocation.
(1) Eligibility. The permit holders of vessels issued valid Atlantic Tunas Longline permits and participants in the Atlantic Tunas Purse Seine category are eligible to lease IBQ allocation to and/or from each other. A person who holds an Atlantic Tunas Longline permit that is not associated with a vessel may not lease IBQ allocation.
(2) Application to lease--(i) Application information requirements. All IBQ allocation leases must occur electronically through the electronic IBQ system, and include all information required by NMFS.
(i) Application information requirements. All IBQ allocation leases must occur electronically through the electronic IBQ system, and include all information required by NMFS.
(ii) Approval of lease application. Unless NMFS denies an application to lease IBQ allocation according to paragraph (c)(2)(iii) of this section, the electronic IBQ system will provide an approval code to the IBQ lessee confirming the transaction.
(iii) Denial of lease application. NMFS may deny an application to lease IBQ allocation for any of the following reasons, including, but not limited to: The application is incomplete; the IBQ lessor or IBQ lessee is not eligible to lease per paragraph (c)(1) of this section; the IBQ lessor or IBQ lessee permits is sanctioned pursuant to an enforcement proceeding; or the IBQ lessor has an insufficient IBQ allocation available to lease (i.e., the requested amount of lease may not exceed the amount of IBQ allocation associated with the lessor). As the electronic IBQ system is automated, if any of the criteria above are applicable, the lease transaction will not be allowed to proceed. The decision by NMFS is the final agency decision; there is no opportunity for an administrative appeal.
(3) Conditions and restrictions of leased IBQ allocation--(i) Subleasing. In a fishing year, an IBQ allocation may be leased numerous times following the process specified in paragraph (c)(2) of this section.
(i) Subleasing. In a fishing year, an IBQ allocation may be leased numerous times following the process specified in paragraph (c)(2) of this section.
(ii) History of leased IBQ allocation use. The fishing history associated with the catch of bluefin tuna will be associated with the vessel that caught the bluefin tuna regardless of how the vessel acquired the IBQ allocation (e.g., through initial allocation or lease), for the purpose of calculation of the performance metrics described under Sec. 635.14(b), or other relevant restrictions based upon bluefin catch.
(iii) Duration of IBQ allocation lease. IBQ allocations expire at the end of each calendar year. Thus, an IBQ lessee may only use the leased IBQ allocation during the fishing year in which the IBQ allocation is applicable.
(iv) Temporary prohibition of leasing IBQ allocation. No leasing of IBQ allocation is permitted between 6 p.m. eastern time on December 31 of one year and 2 p.m. Eastern Time on January 1 of the next. . This period is necessary to provide NMFS time to reconcile IBQ accounts, and update IBQ shares and allocations for the upcoming fishing year.
(v) Related restrictions. Other regulations specific to the Atlantic Tunas Purse Seine category are set forth at Sec. 635.27(a)(4)(v).
(d) Sale of IBQ shares. Sale of IBQ shares currently not permitted.
(e) Changes in vessel and permit ownership. In accordance with the regulations specified under Sec. 635.4(l), a vessel owner that has an IBQ share may transfer the Atlantic Tunas Longline category permit to another vessel that he or she owns or transfer the permit to another person. The IBQ share as described under this section would transfer with the permit to the new vessel, and remain associated with that permit. Within a fishing year, when an Atlantic Tunas Longline permit transfer occurs (from one vessel to another), the associated IBQ shares are transferred with the permit, however IBQ allocation is not, unless the IBQ allocation is also transferred through a separate transaction within the electronic IBQ system. As described under paragraphs (c)(1) and (k)(1) of this section, a person or entity that holds an Atlantic Tunas Longline permit that is not associated with a vessel may not receive or lease IBQ allocation.
(f) Annual notification of shares and allocations. On January 1 of each year, NMFS will notify eligible IBQ Participants, as specified in paragraph (k)(1) of this section, of their IBQ share and the resulting IBQ allocation (mt) for the relevant fishing year, as well as the regional designations based on the available Atlantic Tunas Longline category quota, and any existing quota debt. NMFS will provide this information through the electronic IBQ system and via annual permit holder letters. Unless specified otherwise, those IBQ shares and resultant allocations will be available for use at the start of each fishing year. Permit holders (of eligible Atlantic Tunas Longline category permits) that have not completed the process of permit renewal or permit transfer as of December 31 will be issued IBQ allocation upon completion of the permit renewal or permit transfer, provided the eligible permit is associated with a vessel.
(g) Evaluation. NMFS will continually monitor the IBQ Program with respect to the objectives listed in the FEIS and make any changes through future rulemakings as deemed necessary to meet those objectives. Three years after full implementation, NMFS will publish a written report describing any findings.
(h) Property rights. IBQ shares and resultant allocations issued pursuant to this part may be revoked, limited, modified or suspended at any time subject to the requirements of the Magnuson-Stevens Act, ATCA, or other applicable law. Such IBQ shares and resultant allocations do not confer any right to compensation and do not create any right, title, or interest in any bluefin tuna until it is landed or discarded dead.
(i) Enforcement and monitoring. NMFS will enforce and monitor the IBQ Program through the use of the reporting and record keeping requirements described under Sec. 635.5, the monitoring requirements under Secs. 635.9 and 635.69, and its authority to close the pelagic longline fishery specified under Sec. 635.28.
(j) Cost recovery. In a future action, NMFS will develop and implement cost recovery for the IBQ program that will cover costs of management, data collection and analysis, and enforcement activities. Fees shall be collected from quota share and/or allocation holders for the IBQ program pursuant to Magnuson-Stevens Act sections 303A(e) and 304(d)(2). Such fees shall not exceed 3 percent of the ex-vessel value of fish harvested under the program.
(k) Initial IBQ shares. During year one of implementation of the IBQ Program described in this section, NMFS will issue IBQ shares to eligible Atlantic Tunas Longline permit holders, as specified in paragraph (k)(1) of this section. New entrants to the pelagic longline fishery would need to obtain an Atlantic Tunas Longline permit, as well as other required limited access permits, as described under Sec. 635.4(l), and would need to lease IBQ allocations per paragraph (c) of this section if the permits acquired did not qualify for an initial IBQ share.
(1) Eligible IBQ share Recipients. (i) Atlantic Tunas Longline category permit holders whose valid permit was associated with a vessel as of August 21, 2013, and that was determined to be ``active'' would be eligible to receive an initial IBQ share. ``Active'' vessels are those vessels that have used pelagic longline gear on at least one set between 2006 and 2012 as reported to NMFS on logbooks, per the requirements of Sec. 635.5. In determining a permitted vessel's initial IBQ share eligibility and calculating the initial IBQ share, NMFS used the data associated with the qualifying vessel's history (and not the permit). Therefore, for the purposes of this section, the vessel owner at the time of reporting is not relevant. If the logbook reports indicate that a particular vessel used pelagic longline gear for at least one set between 2006 and 2012, and the vessel was issued a valid Atlantic Tunas Longline category permit as of August 21, 2013, the current permit holder is qualified to receive an initial IBQ share.
(i) Atlantic Tunas Longline category permit holders whose valid permit was associated with a vessel as of August 21, 2013, and that was determined to be ``active'' would be eligible to receive an initial IBQ share. ``Active'' vessels are those vessels that have used pelagic longline gear on at least one set between 2006 and 2012 as reported to NMFS on logbooks, per the requirements of Sec. 635.5. In determining a permitted vessel's initial IBQ share eligibility and calculating the initial IBQ share, NMFS used the data associated with the qualifying vessel's history (and not the permit). Therefore, for the purposes of this section, the vessel owner at the time of reporting is not relevant. If the logbook reports indicate that a particular vessel used pelagic longline gear for at least one set between 2006 and 2012, and the vessel was issued a valid Atlantic Tunas Longline category permit as of August 21, 2013, the current permit holder is qualified to receive an initial IBQ share.
(ii) Except as described in paragraph (k)(4) of this section regarding appeals, if the logbook reports indicate that a particular vessel did not use pelagic longline gear for at least one set between 2006 and 2012, and/or the vessel was not issued a valid Atlantic Tunas Longline category permit on August 21, 2013, the current permit holder is not eligible to receive an initial IBQ share even if the current permit holder fished with pelagic longline gear on a different vessel between 2006 and 2012. Persons that held an Atlantic Tunas Longline category permit that was not associated with a vessel as of August 21, 2013 are not eligible for an initial IBQ share. Atlantic Tunas Longline category permits holders that are ineligible to receive an initial IBQ share would need to lease IBQ allocation per paragraph (c) of this section, as well as meet all other applicable requirements, before the vessel could fish with or possess pelagic longline gear onboard.
(2) IBQ share determination (i) Initial IBQ shares. NMFS has reviewed each permitted vessel's reported bluefin tuna interactions (all discards and landings) and landings of designated species (swordfish, yellowfin, bigeye, albacore, and skipjack tunas; dolphin; wahoo; and porbeagle, shortfin mako and thresher sharks) and placed each permitted vessel into one of three tiers: Low, medium and high based on the ratio of bluefin tuna interactions. The IBQ share will be assigned based on the three tiers.
(ii) Appeals to initial IBQ shares. When NMFS determines that all appeals pursuant to paragraph (k)(4) of this section have been resolved, NMFS may adjust the initial IBQ share percentages described under paragraph (k)(2)(i) as necessary to accommodate those appellants that have been deemed eligible for an initial IBQ share or are provided an increased IBQ share.
(3) Regional designations. All initial IBQ shares and resultant allocations are designated as either ``Gulf of Mexico'' or ``Atlantic'' based upon the geographic location of sets as reported to NMFS under the requirements of Sec. 635.5. Eligible permit holders may use Gulf of Mexico IBQ shares and resultant allocations to fish in either the Gulf of Mexico or the Atlantic regions. Eligible permit holders may use Atlantic IBQ shares and resultant allocations only to fish in the Atlantic region. If a permitted vessel had fishing history in both the Gulf of Mexico and Atlantic, it may receive both the Gulf of Mexico and Atlantic IBQ shares, depending upon the amount of IBQ share and the proportion of fishing history in the two areas. Based on the procedures described under paragraphs (k)(1) and (2) of this section, if a permit holder would be issued a regional IBQ share that results in a regional allocation less than a minimum amount for a particular area (i.e., less than 0.125 mt for the Atlantic or less than 0.25 mt for the Gulf of Mexico), the de minimis regional IBQ share and resultant allocation would be designated to the other regional designation.
(4) Appeals of initial IBQ share. Atlantic Tunas Longline Permit holders may appeal their initial IBQ shares through the two-step process described below. NMFS will provide further explanation on how to submit an appeal when it informs permit holders of their initial IBQ shares.
(i) Initial administrative determination (IAD). The HMS Management Division will evaluate requests from Atlantic Tunas Longline Permit holders regarding their initial IBQ shares. Any request must be postmarked no later than March 2, 2015, be in writing, and indicate the reason for the request, and contain documentation supporting the request (see paragraphs (k)(4)(iii) and (iv) of this section). The HMS Management Division will evaluate the request and supporting documentation, and notify the appellant by a written IAD regarding a decision to approve or deny the request. The IAD will explain the basis for any denial decision.
(ii) Appeal of IAD. Within 90 days after the date of issuance of the IAD, the permit holder may appeal the IAD to the NMFS National Appeals Office, pursuant to procedures at 15 CFR part 906.
(iii) Items subject to IAD and appeal. The only items subject to an IAD or appeal are: Initial IBQ share eligibility based on ownership of an active vessel with a valid Atlantic Tunas Longline category permit combined with the required shark and swordfish limited access permits; the accuracy of NMFS records regarding that vessel's amount of designated species landings and/or bluefin interactions; and correct assignment of target species landings and bluefin interactions to the vessel owner/permit holder. As described under paragraph (k)(1) of this section, the IBQ share formulas are based upon historical data associated with a permitted vessel. Because vessels may have changed ownership or permits may have been transferred during 2006 through 2012, the current owner of a permitted vessel may also appeal on the basis of historical changes in vessel ownership or permit transfers. Appeals based on hardship factors (e.g., illness of vessel owner, divorce, etc.) will not be considered.
(iv) Supporting documentation for IAD or appeal. NMFS will consider official NMFS logbook records or weighout slips for landings between January 1, 2006, through December 31, 2012, that were submitted to NMFS prior to March 2, 2013 (60 days after the cutoff date for eligible landings) and verifiable sales slips, receipts from registered dealers, state landings records, and permit records as supporting documentation for a request or appeal under paragraph (k)(4) of this section. NMFS will count only those designated species landings that were landed legally when the owner had a valid permit. No other proof of catch history or species interactions will be considered, except for NMFS logbook records, observer data, or other NMFS data. NMFS permit records will be the sole basis for determining permit transfers. Copies of documents may be submitted, provided they are of equal legibility and quality as the originals, and such copies shall have the same force and effect as if they were originals. NMFS may request the originals at a later date. NMFS may refer any submitted materials that are of questionable authenticity to the NMFS Office of Enforcement for investigation. [79 FR 71591, Dec. 2, 2014]
Effective Date Note: At 79 FR 71591, Dec. 2, 2014, Sec. 635.15 was added, effective Jan. 1, 2015, except for paragraphs (b)(3), (4)(ii), and (5)(i), which are effective Jan. 1, 2016. Sec. 635.16 [Reserved]