§ 635.15 - Individual bluefin tuna quotas (IBQs).

§ 635.15 Individual bluefin tuna quotas .

Cross Reference

Link to an amendment published at 87 FR 59999, Oct. 3, 2022.

(IBQs).

(a) General. This section establishes an describes the IBQ Program for . As described below, under the IBQ Program, NMFS will assign 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 § 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 initial IBQ quota allocation is the amount of bluefin tuna (whole weight) in metric tons (mt) that a qualified IBQ share recipient (i.e., a share recipient who has associated their permit with a vessel) is allotted to account for incidental catch of bluefin tuna during a specified 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 initial Longline category quota for that year.

category LAP holders annual IBQ shares and resulting allocations. IBQ allocations are required for vessels with Atlantic Tunas Longline category permits to fish with pelagic longline or green-stick gear. IBQ allocations may be leased by IBQ shareholders and Atlantic Tunas Longline category LAP holders using the Catch Shares Online System.

(b) Eligibility -

(1) IBQ shareholder. An Atlantic Tunas Longline category LAP holder that fished using pelagic longline gear on at least one set (i.e., deployment and retrieval) during a recent 36 month period is eligible to receive an annual IBQ share in accordance with paragraph (c) of this section and is considered an IBQ shareholder. In determining IBQ shareholders, NMFS will use data as described in paragraph (c) of this section. For an IBQ shareholder's vessel to be considered an “eligible vessel,” the vessel must have been issued a valid Atlantic Tunas Longline category LAP when set(s) occurred during the relevant 36 month period. In circumstances where a LAP is transferred from one vessel to another during the relevant 36 month period, the eligible vessel(s) is that which deployed the pelagic longline sets.

(2) New entrants. New entrants to the fishery need to obtain an Atlantic Tunas Longline category LAP, as well as other required LAPs, as described under § 635.4(l), and would need to lease IBQ allocations per paragraph (e) of this section if the Atlantic Tunas Longline category LAP acquired was not eligible for an annual IBQ share.

(c) Annual IBQ share determination. During the last quarter of each year, NMFS will review the relevant 36 months of best available data to determine eligible IBQ shareholders and the number of pelagic longline sets legally made by each permitted, eligible vessel, and assign IBQ shares based on the criteria below. The 36 month time period is a rolling period that changes annually, and is selected by NMFS based on the availability of recent data and time required by NMFS to conduct determinations under paragraphs (b) and (c) of this section. NMFS intends to include data from the majority of the year prior to the year for which shares are applied and the IBQ allocation distributed. The best available data as determined by NMFS may be a single data source such as VMS data, for which there is a relatively short time period from the time it is submitted by the vessel operator, and the time it can be used by NMFS; or the best available data may include other available data such as logbook, EM, or permit data, in order to accurately determine a vessel's eligibility status and shares. An IBQ shareholder does not need a valid LAP when NMFS makes annual IBQ share determinations, but NMFS will only distribute IBQ allocations to permitted vessels.

(1) IBQ share calculations. Annually, NMFS will calculate IBQ shares for each IBQ shareholder based upon the total number of each eligible vessel's pelagic longline sets during the relevant 36 month period, and the relative amount (as a percentage) those pelagic longline sets represent compared to the total number of pelagic longline sets made by all IBQ shareholders' eligible vessels. NMFS will only count one set per calendar day toward a vessel's total number of pelagic longline sets, and will only count a set if a vessel was issued a valid Atlantic Tunas Longline category LAP when the set occurred. The annual IBQ share percentage is used to calculate the annual IBQ allocation (see paragraph (d) of this section).

(2) Proxy calculation for Deepwater Horizon Oceanic Fish Restoration Project participants. For valid participants in this Project, the annual IBQ shares will be calculated as described in paragraph (c)(1) of this section, but in addition, a proxy amount of sets will be added to a vessel's history during the period of its participation in the Project. The proxy will be based upon the average number of sets made by IBQ shareholders' vessels that did not participate in the Project during the period that participants fished under the Project.

(3) Regional designations of IBQ shares. Annually, IBQ shares and resultant allocations will be designated as either “GOM” (Gulf of Mexico) or “ATL” (Atlantic), based upon the location (i.e., in the Gulf of Mexico or Atlantic region) of sets included in the calculation under paragraph (c)(1) of this section. Subject to the GOM share cap described below, each region's total shares and resultant allocations for the year will be based on the percentage of sets designated for the region compared to total sets. Per § 635.28(a)(1), NMFS will file a closure action when a region's IBQ allocations have been reached or are projected to be reached. 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 § 600.105(c) of this chapter, and the Atlantic region includes all other waters of the Atlantic Ocean including fishing taking place in the NED defined at § 635.2. If an IBQ shareholder's vessel had fishing history in both the Gulf of Mexico and Atlantic region, it could receive both GOM and ATL shares.

(i) GOM share cap. The maximum amount of designated GOM IBQ shares among all IBQ shareholders is capped at 35 percent of the baseline Longline category quota. Based on the criteria and process under § 635.27(a)(7), NMFS may make an inseason or annual adjustment to reduce the default 35-percent cap for all or the remainder of a calendar year.

(ii) Adjustment of GOM shares to match the GOM share cap. If NMFS determines that the total amount of GOM-designated IBQ shares would be greater than the GOM share cap (default or adjusted), NMFS will reduce the total amount of GOM shares in order to equal the GOM share cap. The reduction in total GOM shares will be achieved through equal proportional reductions among all GOM shareholders. The ATL shares will be increased in an analogous manner, so that the total share percentages for the two regions add up to 100 percent. NMFS will notify affected shareholders of any reductions in their GOM shares or increases in ATL shares resulting from this adjustment. This adjustment is not subject to appeal under paragraph (e)(1)(i) of this section.

(iii) Low GOM-designated share threshold. If NMFS determines that the total amount of GOM-designated IBQ shares is 5 percent or less of the total IBQ shares, NMFS will file an action with the Office of the Federal Register for publication that suspends for that year the requirement to account for BFT caught in the Gulf of Mexico with GOM-designated shares and resultant allocations (paragraph (f)(1) of this section) and the minimum GOM IBQ allocation requirement (paragraph (f)(2) of this section). NMFS will also notify IBQ shareholders of such action per paragraph (e) of this section. In this situation, IBQ shareholders' vessels could fish in the Gulf of Mexico during that year using ATL-designated IBQ allocations. Any vessels fishing in the Gulf of Mexico would still need to account for BFT catch and have the minimum IBQ allocation of 0.25 mt ww (551 lb ww) before departing on the first fishing trip in a calendar year quarter. Those vessels that fish in the Gulf of Mexico may be issued GOM IBQ shares in the following year per the regional designation of shares process described in paragraph (c)(3) of this section. BFT catch (landings and dead discards) from the Gulf of Mexico by pelagic longline vessels will be capped at the weight of BFT equivalent to the GOM share cap (see paragraph (c)(3)(i) of this section) in the applicable year. If this level of catch is reached, or projected to be reached, NMFS will prohibit fishing with pelagic longline gear in the Gulf of Mexico for the rest of the year pursuant to § 635.28(a)(1).

(d) Annual IBQ allocations. An annual IBQ allocation is the amount of BFT (whole weight) in metric tons corresponding to an IBQ shareholder's share percentage, distributed to their vessel to account for incidental landings and dead discards of BFT during a specified calendar year. NMFS will only distribute IBQ allocations when there is a valid Atlantic Tunas Longline category LAP associated with a vessel. Unless otherwise required under paragraph (f)(4) of this section, an IBQ allocation is derived by multiplying the IBQ share percentage (calculated under paragraph (c)(1) of this section) by the baseline Longline category quota for that year. If the baseline quota is adjusted during the fishing year, the annual IBQ allocation may also be adjusted as specified in paragraph (e)(2) of this section.

(e) Notification of IBQ shares and allocations, appeals, and adjustments. During the last quarter of each year, NMFS will notify Atlantic Tunas Longline permit holders via electronic methods (such as an email) and/or letter to inform them of their IBQ shares, their IBQ allocations, and the regional designations of those shares and allocations for the subsequent fishing year; whether adjustments were made to GOM-designated shares due to the GOM shares cap; and whether the low GOM-designated share threshold has been triggered. This notification represents the initial administrative determination (IAD) for the permit holder's IBQ share and allocation. NMFS will also notify permit holders of any existing quota debt, and provide instructions for appealing the IAD. As of December 31, if an IBQ shareholder does not have a valid Atlantic Tunas Longline category LAP associated with a vessel due to a permit renewal or transfer, NMFS will issue IBQ allocation for the relevant fishing year if/when the permit renewal or transfer is completed and a valid LAP is associated with a vessel. IBQ shares, allocations, and regional designations may change as a result of the following circumstances, in which case NMFS will notify eligible IBQ recipients.

(1) Appeals. Appeals will be governed by the regulations and policies of the National Appeals Office at 15 CFR part 906. Per those regulations, Atlantic Tunas Longline Permit holders may appeal the IAD by submitting a written request for an appeal to the National Appeals Office within 45 days after the date the IAD is issued. NMFS will provide further instructions on how to submit a request for an appeal when it issues the IAD.

(i) Items subject to appeal and adjustment. A permit holder may appeal their: eligibility for IBQ shares based on ownership of an active vessel with a valid Atlantic Tunas Longline category permit; IBQ share percentage; IBQ allocations; and regional designations of shares and allocations. A permit holder may also appeal NMFS' determination of the number of pelagic longline sets legally made by its permitted vessel. However, an adjustment of GOM shares under paragraph (c)(3)(ii) of this section or inseason quota adjustment under paragraph (e)(3) of this section is not subject to appeal. Appeals based on hardship factors will not be considered. Consistent with most limited effort and catch share programs, hardship is not a valid basis for appeal due to the multitude of potential definitions of hardship and the difficulty and complexity of administering such criteria in a fair manner. NMFS may utilize BFT quota from the Reserve category for any adjustment needed due to an appeal.

(ii) Supporting documentation for appeals. NMFS permit records would be the sole basis for determining permit transfers, permit renewals, and the validity of permits. NMFS will only use the relevant 36 months of data described under paragraph (c) of this section to determine the numbers of pelagic longline sets made. NMFS will count only pelagic longline sets legally made when the permit holder had a valid permit. No other proof of sets or permit history will be considered. Photocopies of written documents are acceptable; NMFS may request originals at a later date. NMFS may refer any submitted materials that are of questionable authenticity to the NMFS Office of Law Enforcement for investigation into potential violations of Federal law.

(2) Inseason quota transfers. NMFS may transfer additional quota to the Longline category inseason as authorized under § 635.27(a), and in accordance with § 635.27(a)(

8

7) and (

9

8)

, and

. NMFS may distribute the

transferred quota within

quota that is transferred inseason to the Longline category

in accordance with paragraph (b)(9) of this section.

(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 § 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

either to all IBQ shareholders or to all permitted Atlantic Tunas Longline category LAP vessels that are determined by NMFS to have any recent fishing activity in the pelagic longline fishery. In making this decision, NMFS will consider factors for the subject and previous year such as the number of BFT landings and dead discards, the number of IBQ lease transactions, the average amount of IBQ leased, the average amount of quota debt, the annual amount of IBQ allocation, any previous inseason allocations of IBQ allocation, the amount of BFT quota in the Reserve category (at § 635.27(a)(6)(i)), the percentage of BFT quota harvested by the other quota categories, the remaining number of days in the year, the number of active vessels fishing not associated with IBQ share, and the number of vessels that have incurred quota debt or that have low levels of IBQ allocation. NMFS will determine if a vessel has any recent fishing activity based upon the best available information for the subject and previous year, such as logbook, vessel monitoring system, or electronic monitoring data. Any distribution of quota transferred inseason will be equal among eligible IBQ shareholders or active vessels, and include regional designations of IBQ allocations (see paragraph (c)(3) of this section).

(3) Inseason quota adjustments. NMFS may increase or decrease the baseline Longline quota on an inseason basis as authorized under § 635.27(a). When doing so, NMFS would apply each IBQ shareholder's share percentage to the amount of quota increase or decrease, and will notify IBQ shareholders of any resulting changes in their IBQ allocations. This adjustment is not subject to appeal under paragraph (e)(1)(i) of this section. Regional designations described in paragraph (c)(3) of this section will be applied to inseason quota distributed to IBQ shareholders, and subject to the applicable cap and other provisions under paragraph (c)(3) of this section.

(f) Using IBQ shares and allocations. Unless specified otherwise, IBQ shares and resultant allocations will be available for use at the start of each fishing year and expire at the end of each fishing year. IBQ shares and allocations issued under this section are valid for the relevant fishing year unless revoked, suspended, or modified or unless the Atlantic Tunas Longline category quota is closed per § 635.28(a).

(1) Usage of GOM and ATL shares and allocations. GOM shares and resultant allocations can be used to

fish

satisfy minimum IBQ allocation requirements under paragraph (f)(2) of this section, or to account for BFT caught 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

satisfy minimum IBQ allocation requirements under paragraph (f)(2) of this section, or to account for BFT caught 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

, unless the provisions of paragraph (c)(3)(iii) of this section are in effect. 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) of this chapter, and the Atlantic region includes all other waters of the Atlantic Ocean

with the exception regarding

including fishing taking place in the

Northeast Distant (

NED

) gear restricted area

defined at § 635.2

and is further described in paragraph (b)(8) of this section

.

(

3

2) Minimum IBQ allocation. For purposes of this

paragraph (b)

section, calendar year quarters start on January 1, April 1, July 1, and October 1.

(i) First fishing trip in a calendar year quarter. Before departing on the first fishing trip in a calendar year quarter, a vessel with

an eligible

a valid Atlantic Tunas Longline category

permit

LAP that fishes with or has pelagic longline or green-stick gear onboard must have the minimum IBQ allocation for either the Gulf of Mexico or Atlantic, depending on fishing location. The minimum

IBQ

GOM 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

ATL or GOM 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 the first fishing trip in a calendar year quarter with pelagic longline gear onboard unless

it

the vessel has the relevant required minimum IBQ allocation for the region in which the fishing activity will occur.

(ii) Subsequent fishing trips in a calendar year quarter. Subsequent to the first fishing trip in a calendar year quarter, a vessel owner or operator may declare into or depart on other fishing trips with pelagic longline gear onboard with less than the relevant minimum IBQ allocation for the region in which the fishing activity will occur, but only within that same calendar year quarter.

(

4

3)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)

BFT that were landed or discarded dead. The following requirements apply to Atlantic Tunas Longline permit holders fishing with pelagic longline or green-stick gear regarding accounting for all BFT landings and dead discards from a vessel's IBQ allocation.

(i) Catch deduction from IBQ allocations. Except as provided under paragraph (f)(6)(i) of this section, for vessels fishing in the NED, all BFT landings must be deducted from the vessel's IBQ allocation at the end of each

pelagic longline trip. (ii) If the amount of bluefin tuna catch

trip by providing information to, and coordinating with the dealer. Dead discards will be deducted from the vessel's IBQ allocation by the Catch Shares Online System, when the vessel operator reports dead discards through VMS as required under § 635.69(e)(4)(i).

(ii) IBQ allocation balances. If the amount of BFT landed and discarded dead on a particular trip exceeds the amount of the vessel's IBQ allocation or results in an IBQ balance less than the minimum amount described in paragraph (

b

f)(

3

2) of this section, the vessel may continue to fish, complete the trip, and depart on subsequent trips within the same calendar year quarter. The vessel must resolve any quota debt (see paragraph (

b

f)(

5

4) of this section) before declaring into or departing on a fishing trip with pelagic longline gear onboard in a subsequent calendar year quarter by acquiring adequate IBQ allocation to resolve the debt and acquire the needed minimum allocation through leasing, as described in paragraph (

c

g) of this section.

(iii)

IBQ Program participants, Atlantic Tunas Purse Seine category participants, and dealers

End-of-year IBQ transactions by dealers. Federal Atlantic Tunas Dealer permit holders must comply with reporting requirements at § 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 § 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

4)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

BFT landed or discarded dead for a particular trip (as defined

at

in § 600.10 of this chapter) exceeds the amount of IBQ 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) Quarter-level quota debt. A vessel with quota debt incurred in a given calendar year quarter cannot depart on a trip with pelagic longline gear onboard in a subsequent calendar year quarter until the vessel leases allocation or receives additional allocation (see paragraphs (

c

e) and (

b

g)

(9)

of this section), and applies allocation for the appropriate region to settle the quota debt such that the vessel has the relevant minimum quota allocation required to fish for the region in which the fishing activity will occur (see paragraph (

b

f)(

3

2) of this section). For example, a vessel with quota debt incurred during January through March may not depart on a trip with pelagic longline gear onboard during April through June (or subsequent quarters) until the quota debt has been resolved such that the vessel has the relevant minimum quota allocation required to fish for the region in which the fishing activity will occur.

(ii) Annual-level quota debt. If, by the end of the fishing year, a permit holder does not have adequate IBQ allocation to settle its vessel's quota debt through leasing or additional allocation (see paragraphs (

c

e) and (

b

g)

(9)

of this section), 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 depart on any pelagic longline trips if it has outstanding quota debt from a previous fishing year.

(iii) Association with permit. Quota debt is associated with the vessel's Atlantic Tunas Longline 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

associated with one or more vessels owned, the IBQ system will apply any remaining unused IBQ 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 § 635.28(a). (7)

5) 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 § 635.27, including annual quota adjustments.

(

8

6)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

BFT quota is available. Permitted vessels fishing with pelagic longline or green-stick gear may fish in the NED, and any

bluefin

BFT catch will count toward the ICCAT-allocated separate NED quota, and will not be subject to the BFT accounting requirements of paragraph (f)(3) of this section, until the NED quota has been filled. Permitted vessels fishing in the NED must still fish in accordance with all other IBQ Program requirements, including the relevant minimum IBQ allocation requirements specified under paragraph (

b

f)(

3

2) of this section to depart on a trip using pelagic longline or green-stick gear.

(ii) When NED

bluefin

BFT quota is filled. Permitted vessels fishing with pelagic longline or green-stick gear may fish in the NED after the ICCAT-allocated, separate NED quota has been filled

but the permitted vessels

and 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.

(9) Distribution of additional Longline category quota transferred inseason. NMFS may distribute the quota that is transferred inseason to the Longline category either to all IBQ share recipients as described under paragraph (k)(1) of this section or to permitted Atlantic Tunas Longline vessels that are determined by NMFS to have any recent fishing activity based on participation in the pelagic longline fishery. In making this determination, NMFS will consider factors for the subject and previous year such as the number of BFT landings and dead discards, the number of IBQ lease transactions, the average amount of IBQ leased, the average amount of quota debt, the annual amount of IBQ allocation, any previous inseason allocations of IBQ, the amount of BFT quota in the Reserve category (at § 635.27(a)(7)(i)), the percentage of BFT quota harvested by the other quota categories, the remaining number of days in the year, the number of active vessels fishing not associated with IBQ share, and the number of vessels that have incurred quota debt or that have low levels of IBQ allocation. NMFS will determine if a vessel has any recent fishing activity based upon the best available information for the subject and previous year, such as logbook, vessel monitoring system, or electronic monitoring data. Any distribution of quota transferred inseason will be equal among selected recipients; when inseason distribution is only to Atlantic Tunas Longline permit holders with IBQ shares, it will therefore not be based on the initial IBQ share determination as specified in paragraph (k)(2) of this section.

(i) Regional designations described in paragraph (b)(2) of this section will be applied to inseason quota distributed to IBQ share recipients.

(ii) For permitted Atlantic Tunas Longline vessels with recent fishing activity that are not qualified IBQ share recipients, regional designations of Atlantic (ATL) or Gulf of Mexico (GOM) will be applied to the distributed quota based on best available information regarding geographic location of sets as reported to NMFS during the period of fishing activity analyzed above in this paragraph, with the designation based on where the majority of that activity occurred.

(c) IBQ Allocation Leasing

IBQ Program requirements. Notably, when the NED BFT quota is filled, the BFT accounting requirement of paragraph (f)(3) of this section is applicable. BFT catch must be accounted for using the vessel's ATL or GOM IBQ allocation, as described under paragraph (f)(1) of this section.

(g) 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

category LAPs are eligible to lease IBQ allocation to and/or from each other. A person who holds an Atlantic Tunas Longline

permit

category LAP 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

Catch Shares Online 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

g)(2)(iii) of this section, the

electronic IBQ system

Catch Shares Online 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

reason, including, but not limited to: The application is incomplete; the IBQ lessor or IBQ lessee is not eligible to lease per paragraph (

c

g)(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

Catch Shares Online 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

g)(2) of this section.

(ii) History of leased IBQ allocation use. The fishing history associated with the catch of

bluefin tuna

BFT will be associated with the vessel that caught the

bluefin tuna

BFT, regardless of how the vessel acquired the IBQ allocation (e.g., through

initial

annual allocation or lease), for the purpose of any potential, future relevant

restrictions

regulations based upon

bluefin tuna

BFT 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

on 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 year. 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 § 635.27(a)(4)(v). (d)

h) Sale of IBQ shares. Sale of IBQ shares

currently

is not permitted.

(

e

i) Changes in vessel and permit ownership. In accordance with the regulations specified under § 635.4(l), a vessel owner that has an annual IBQ share may transfer

the

their Atlantic Tunas Longline category

permit

LAP 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 for the remainder of that fishing year. Within a fishing year, when an Atlantic Tunas Longline

permit

category LAP 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

Catch Shares Online System. A person that holds an Atlantic Tunas Longline

permit

category LAP 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)

j) Evaluation. NMFS will conduct evaluations of the IBQ Program in accordance with Magnuson-Stevens Act requirements for Limited Access Privilege Programs (Section 303(c)(1)(G)).

(k) 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

BFT until it is landed or discarded dead.

(

i

l) Enforcement and monitoring. NMFS will enforce and monitor the IBQ Program through the use of the reporting and record keeping requirements described under § 635.5, the monitoring requirements under §§ 635.9 and 635.69, enforcement of the prohibitions in § 635.71, and its authority to close the pelagic longline fishery specified under § 635.28.

(

j

m)Cost recovery

. In a future action, NMFS will develop and implement cost recovery for the IBQ program that will

program. This program of fees is intended to 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 category LAP 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 category LAP, as well as other required LAPs, as described under § 635.4(l), and would need to lease IBQ allocations per paragraph (c) of this section if the LAPs 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 § 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 § 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 LAP combined with the required shark and swordfish LAPs; 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, as amended at 81 FR 95909, Dec. 29, 2016; 82 FR 61497, Dec. 28, 2017; 83 FR 33154, July 17, 2018; 85 FR 18841, Apr. 2, 2020

directly related to and in support of the IBQ Program. This program applies to vessels issued an Atlantic Tunas Longline category LAP that harvested BFT under the IBQ Program. NMFS will undertake the process described in paragraphs (m)(1) through (5) of this section, on an annual basis.

(1) Estimation of incremental cost. NMFS will calculate the estimated incremental cost of the IBQ Program (e.g., oversight, customer service, database/computer maintenance and other costs, electronic monitoring program, data monitoring, preparation of fleet communications, providing status reports to the HMS Advisory Panel, preparation of Federal Register documents, and enforcement related activities), including an estimate of the administrative and operational cost of implementing the cost recovery program.

(2) Estimation of ex-vessel value of catch share species. NMFS will calculate the ex-vessel value of BFT harvested under the IBQ Program using dealer data on the estimated average ex-vessel value price per pound (paid by the dealer to the vessel) and the total dressed weight of BFT sold to dealers.

(3) Determination of fees. NMFS will compare its incremental cost under paragraph (m)(1) of this section to the estimate of BFT ex-vessel value under paragraph (m)(2) of this section to determine the total amount of fees that may be recovered. Fees shall not exceed 3 percent of the BFT ex-vessel value estimated under paragraph (m)(2) of this section. NMFS will determine the fee associated with each vessel that harvested BFT, based on the total dressed weight of BFT sold to dealers by a vessel, and the total amount of fees that may be recovered (fishery-wide). NMFS will not assess fees, if the amount of fees that may be recovered is similar to or less than the estimated cost of implementing the cost recovery program.

(4) Notification of fees. NMFS will file with the Office of the Federal Register for publication a notification of its determination on fees, and notify Atlantic Tunas Longline permit holders, specifying the fee amount owed, and instructions for payment through the Catch Shares Online System or other Federal payment system. Federally permitted vessels (Atlantic Tunas Longline permit holders) that sold BFT that do not pay the fee or are delinquent in payment would be subject to relevant enforcement penalties, including permit revocation.

(5) Annual report. NMFS will prepare a brief annual report, made available to the public, which summarizes relevant information including the estimation of recoverable costs, estimation of ex-vessel value of BFT, and determination of the cost recovery fee.

(n) IBQ shares cap. An individual, partnership, corporation or other entity (collectively, “entity” for purposes of this paragraph) that holds an Atlantic Tunas Longline category LAP may not hold or acquire more than 25 percent of the total IBQ shares or resultant IBQ allocations annually. The cap applies to the sum of IBQ shares or associated IBQ allocations an entity holds, regardless of whether the entity is associated with a single or multiple Atlantic Tunas Longline category permits.

[87 FR 59999, Oct. 3, 2022]