[Federal Register Volume 64, Number 244 (Tuesday, December 21, 1999)]
[Proposed Rules]
[Pages 71396-71400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33068]
[[Page 71396]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 991210331-9331-01; I.D. 102899B]
RIN 0648-AN34
Fisheries of the Exclusive Economic Zone off Alaska; Inshore Fee
System for Repayment of the Loan to Harvesters of Pollock from the
Directed Fishing Allowance Allocated to the Inshore Component under
Section 206(b)(1) of the American Fisheries Act (AFA)
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule.
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SUMMARY: NMFS proposes regulations to implement an inshore fee system
for all pollock harvested under the inshore component (IC) of the
Bering Sea/Aleutian Islands (BS/AI) directed fishing allowance under
the AFA. The AFA authorized a $75 million loan to reduce fishing
capacity for offshore component (OC) pollock and the inshore fee system
as the means of repaying the loan. The proceeds of the loan partly paid
the cost of removing nine OC catcher-processors (which the AFA
specified) from all commercial fishing in the U.S. exclusive economic
zone (EEZ). The intent of this rule is to implement the inshore fee
system that the AFA requires.
DATES: Comments must be received at the appropriate address or
facsimile number (see ADDRESSES) no later than January 5, 2000.
ADDRESSES: Copies of the Environmental Assessment, Regulatory Impact
Review, and Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) may
be obtained from Michael L. Grable, Chief, Financial Services Division,
National Marine Fisheries Service, 1315 East-West Highway, Silver
Spring, MD 20910-3282. Written comments should be sent to Michael L.
Grable at the above address. Comments also may be sent, via facsimile,
to 301-713-1306. NMFS will not accept comments sent by e-mail or the
Internet. Comments involving the reporting burden estimates or any
other aspects of the collection of information requirements contained
in this proposed rule should be sent to both Michael L. Grable and to
the Office of Information and Regulatory Affairs, Office of Management
and Budget (OMB), Washington, D.C. 20503 (ATTN: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Michael L. Grable, 301-713-2390, fax
301-713-1306, e-mail Michael.G[email protected].
SUPPLEMENTARY INFORMATION:
Background
The President signed the AFA into law on October 20, 1998, as part
of the Omnibus Appropriations Bill for fiscal year 1999 (Pub. L. 105-
277). The AFA required the Federal Government to pay, not later than
December 31, 1998, $90 million to the owners of nine large catcher
processors harvesting OC pollock. In return, eight of these vessels had
to stop all commercial fishing in the EEZ immediately and be scrapped
by December 31, 2000. Although the ninth vessel did not have to be
scrapped, it also had to stop all commercial fishing in the EEZ
immediately and the owner had to certify that neither the owner nor
anyone who purchased the vessel from the owner intended to use the
vessel outside the EEZ to harvest any fish that also occur within the
EEZ.
Before December 31, 1998, NMFS paid the required amount to the
owners of these vessels. In accordance with the AFA, NMFS paid $15
million of this amount from an AFA appropriation and the remaining $75
million from the proceeds of a fishing capacity reduction loan under
sections 1111 and 1112 of Title XI of the Merchant Marine Act, 1936 (46
U.S.C. App. 1279f and g) (Title XI). The AFA requires the loan to be
repaid by fees under section 312(d)(2)(C) of the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C. 1861a(d)(2)(C))
(Magnuson-Stevens Act).
Upon payment of the $90 million, NMFS revoked all nine vessels'
domestic fishing permits, one owner provided the certificate required
for the ninth vessel, and the other owners began preparing for
scrapping the remaining eight vessels. All eight vessels are presently
undergoing scrapping at a scrapping facility in San Francisco, CA.
Scrapping is scheduled to be completed before December 31, 2000.
Under the AFA and section 312(d)(2)(C) of the Magnuson-Stevens Act,
all vessel owners harvesting IC pollock (fish sellers) are required to
pay the fee and all fish processors making the first ex-vessel purchase
of IC pollock (fish buyers) are required to collect the fee and account
for and forward the fee revenue to NMFS for the purpose of repaying the
loan. The fish sellers pay, and the fish buyers collect, the fee when
the fish buyers deduct the fee from the ex-vessel value of all IC
pollock before paying the net ex-vessel value of the fish to the fish
sellers.
The fee is six-tenths (0.6) of one cent for each pound, round-
weight, of all IC pollock that fish sellers land. The AFA provides that
fee payment and collection shall begin on or after January 1, 2000.
Although the loan's scheduled maturity is 30 years, the AFA also
provides that fee payment and collection ``shall * * * continue without
interruption until such loan is fully repaid * * *'' (section
207(b)(2)). Whether the loan is repaid before, at, or after its
scheduled maturity depends on when fee payment begins, the rate at
which loan principal bears interest, annually determined total
allowable pollock catches after December 31, 1999, and IC pollock
allocations after December 31, 2004. NMFS has not finally determined
the rate at which the loan's principal bears interest. The other
variables controlling the time required to fully repay the loan are not
presently determinable.
Several assumptions are, consequently, necessary to project the
time required to fully repay the loan. The first assumption involves
the time at which fee payment begins. For projection purposes, NMFS
assumes that fee payment begins on January 1, 2000. The second
assumption involves the rate at which the principal of the loan bears
interest. NMFS believes this rate will be either 7.09 percent or 7.81
percent per annum. For projection purposes, NMFS assumes the higher of
these two rates. The third assumption involves the annual total
allowable catch of pollock after December 31, 1999, which may vary from
year to year. For projection purposes, NMFS assumes that the average
annual total allowable catch of pollock after December 31, 1999, will
be the same as the average annual total allowable catch of pollock over
the 14-year period from the beginning of 1985 through end of 1998
(2.769 billion pounds or 1.256 million metric tons). The fourth
assumption involves IC pollock allocations after December 31, 2004.
This depends on whether the North Pacific Fishery Management Council
maintains IC pollock allocations after December 31, 2004, at the same
level as IC pollock allocations, under the AFA, from January 1, 1999,
to December 31, 2004 (i.e., 42 percent of total allowable catch). For
the purposes of this projection, NMFS assumes that IC pollock
allocations after December 31, 2004, will be the same as IC pollock
allocations from January 1, 1999, to December 31, 2004. Under these
four
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assumptions, the loan will be repaid in 21 years (i.e., 9 years less
than the scheduled maturity). Actual conditions different than those
NMFS assumes for the purpose of this projection may, however, cause
loan repayment to occur sooner or later than here projected. Future
total allowable catches may be the biggest determinate of the time
actually required to repay this loan.
Accordingly, this rule proposes that fee payment and collection
begin on the seventh calendar day after the date that a final fee rule
is published in the FEDERAL REGISTER and continue without interruption
until the loan is fully repaid (without regard to whether this is a
period longer or shorter than the loan's scheduled maturity of 30
years).
The fixed interest rate at which the loan accrues interest is two
percent of the principal amount of the loan outstanding plus such
additional percent as the Secretary of Commerce is obligated to pay as
the interest cost of borrowing from the United States Treasury the
funds from which NMFS made the loan. On December 30, 1998, NMFS
disbursed all $75 million of the loan's original principal amount.
Interest has been accruing since that date. NMFS is still determining
the interest rate that the statutory formula requires (which, as noted,
will probably be either 7.09 percent or 7.81 percent per annum). NMFS
will apply all fee receipts, first, to the payment of accrued interest
and, second, to the reduction of loan principal.
Section 312(b)-(e) of the Magnuson-Stevens Act provides for fishing
capacity reduction programs (which may be funded by loans under
sections 1111 and 1112 of Title XI). Although the IC pollock loan is
authorized by the AFA rather than by section 312(b)-(e) of the
Magnuson-Stevens Act, the AFA specifies that the IC pollock loan is
repayable under section 312(d)(2)(C) of the Magnuson-Stevens Act. NMFS
has already proposed a framework rule for implementing section 312(b)-
(e) of the Magnuson-Stevens Act (64 FR 6854, February 11, 1999). The
proposed framework rule would establish detailed provisions for paying,
collecting, disbursing, accounting for, and reporting about fees
repaying fishing capacity reduction loans.
NMFS had hoped to implement the fishing capacity reduction
framework rule before NMFS had to provide for payment and collection of
the IC pollock fee. NMFS intended to provide for payment and collection
of the IC pollock fee by making the loan subject to the framework rule
provisions about fee payment and collection. Because NMFS has not yet
adopted and promulgated the framework rule, however, NMFS must now
separately provide for payment and collection of the IC pollock fee by
proposing to add a temporary subpart G to 50 CFR part 679 (subpart G).
NMFS has drawn most of the procedural provisions of the proposed
subpart G from the proposed framework rule. After a framework rule is
adopted and promulgated, NMFS will revoke subpart G and concurrently
provide, by a program implementation rule under the framework rule, for
the continuing payment and collection of the IC pollock fee.
Classification
The Assistant Administrator for Fisheries, NMFS, determined that
this proposed rule is consistent with the AFA, the Magnuson-Stevens
Act, Title XI, and other applicable laws.
This proposed rule has been determined to be not significant for
purposes of E.O. 12866.
NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA)
describing the impact of the action in the proposed rule on small
entities. In summary, the IRFA states that this proposed rule would
apply to about 100 fish sellers (all of whom are small entities) and
about eight fish buyers (none of whom are small entities). The IRFA
indicates that the average annual fee expense for each fish seller will
likely be about $60,000. Recordkeeping and reporting requirements would
fall primarily on the fish buyers, who collect the fee. The estimated
annual compliance cost to fish buyers is about $5,568 per fish buyer.
Several minimal recordkeeping and reporting requirements also apply to
fish sellers. A fish seller must report to NMFS if a fish buyer refuses
to collect the fee. The estimated compliance cost, should a fish
buyer's refusal to collect the fee require a fish seller to report, is
about $25 per report. In specific and limited circumstances when a fish
seller becomes a de facto fish buyer for recordkeeping and reporting
requirements, the estimated compliance cost is the same as a fish
buyer's compliance cost. The Paperwork Reduction Act (PRA) discussion
further details these costs. This proposed rule does not duplicate or
conflict with any other Federal rules of which NMFS is aware. NMFS
considered two alternatives that might have lessened the economic
impact on small entities. These alternatives were not collecting the
fee and delaying fee collection. Not collecting the fee would both cost
the Nation $75 million and violate the AFA. Delaying fee collection
would increase the ultimate cost to fish sellers (because interest
would continue to accrue on an unreduced $75 million principal balance)
and prolong the time required for fish sellers to repay the loan. The
AFA requires that the fee system remain in effect until the loan is
fully repaid. The EA/RIR/IRFA further discusses these alternatives and
their economic impact on IC pollock fish sellers and fish buyers.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the PRA requirements
unless that collection of information displays a currently valid OMB
Control Number.
This proposed rule contains collection of information requirements
subject to the PRA that have been approved by OMB under OMB Control No.
0648-0376. This PRA approval occurred in connection with proposal of
the framework rule for implementing section 312(b)-(e) of the Magnuson-
Stevens Act, including a collection of information burden for fee
payment, collection, disbursement, accounting, and reporting under
section 312(d)(2)(C) of the Magnuson-Stevens Act. The AFA provides that
payment and collection of the IC pollock fee shall be in accordance
with 312(d)(2)(C) of the Magnuson-Stevens Act.
The estimated response times for this collection of information
are: 10 minutes per fishing trip to maintain records on transactions, 2
hours per fish buyer's monthly report, 4 hours per fish buyer's annual
report, and 2 hours per fish buyer's or fish seller's report about fish
sellers who refuse to pay, or fish buyers who refuse to collect, the
fee.
These estimated response times include the time needed for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and revising the collection
of information.
Public comment is sought regarding whether this proposed collection
of information is necessary for the proper performance of the function
of the agency, including: whether the information has practical
utility; the accuracy of the burden estimate; ways to enhance the
quality, utility, and clarity of the information to be collected; and
ways to minimize the burden of the collection of information, including
the use of automated collection techniques or other forms of
information technology.
Send comments regarding this burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden, to
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NMFS (see ADDRESSES) and to OMB (see ADDRESSES).
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: December 15, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 679 is
proposed to be amended as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
1. The authority citation for 50 CFR part 679 continues to read as
follows:
AUTHORITY: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq.
2. In Sec. 679.1, a paragraph (k) is added to read as follows:
Sec. 679.1 Purpose and scope.
* * * * *
(k) This part also governs payment and collection of the loan,
under the American Fisheries Act (AFA), the Magnuson-Stevens Act, and
Title XI of the Merchant Marine Act, 1936, made to all persons who
harvest pollock from the directed fishing allowance allocated to the
inshore component under section 206(b)(1) of the AFA.
3. A subpart G is added to read as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
Subpart G--Inshore Fee System for Repayment of the Loan to
Harvesters of Pollock from the Directed Fishing Allowance Allocated
to the Inshore Component under Section 206(b)(1) of the AFA
Sec.
679.60 Definitions.
679.61 Loan.
679.62 Fee payment and collection.
679.63 Fee collection deposits, disbursements, records, and
reports.
679.64 Late charges.
679.65 Enforcement.
679.66 Prohibitions and penalties.
Subpart G--Inshore Fee System for Repayment of the Loan to
Harvesters of Pollock from the Directed Fishing Allowance Allocated
to the Inshore Component under Section 206(b)(1) of the AFA
Authority: Pub. L. 105-277, 16 U.S.C. 1801, et seq.
Sec. 679.60 Definitions.
In addition to the definitions in the Magnuson-Stevens Act and in
Sec. 679.1 of this title, the terms used in this subpart have the
following meanings:
American Fisheries Act (AFA) means Title II of Pub. L. 105-277.
Borrower means (individually and collectively) all persons who,
after January 1, 2000, harvest fee fish from the IC directed fishing
allowance.
Delivery value means the gross ex-vessel value of all fee fish at
fish delivery.
Deposit principal means all collected fee revenue that a fish buyer
deposits in a segregated deposit account maintained in a federally
chartered national bank for the sole purpose of aggregating collected
fee revenue before sending the fee revenue to NMFS for repaying the
loan.
Fee means the six-tenths (0.6) of one cent that fish buyers deduct
(under the inshore fee system provided for in section 207(b) of the
AFA) from the gross ex-vessel value of each pound of round weight fee
fish harvested from the IC directed fishing allowance.
Fee fish means all pollock harvested from the IC directed fishing
allowance until such time as the loan's principal and interest are
fully repaid.
Fish buyer means the first ex-vessel fish buyer who, in an arm's-
length transaction, purchases fee fish from a fish seller.
Fish delivery means the point at which a fish buyer first takes
title to, or possession of, fee fish from a fish seller.
Fish seller means the harvester who catches and, in an arm's-length
transaction, first sells fee fish to a fish buyer.
IC directed fishing allowance means the directed fishing allowance
allocated to the inshore component under section 206(b)(1) of the AFA.
Loan means the loan authorized by section 207(a) of the AFA.
Net delivery value means the delivery value minus the fee.
Subaccount means the Inshore Component Pollock Subaccount of the
Fishing Capacity Reduction Fund in the U.S. Treasury for the deposit of
all funds involving the loan.
Sec. 679.61 Loan.
(a) Principal amount. The loan's principal amount is $75,000,000
(seventy five million dollars).
(b) Disbursement. NMFS disbursed, in accordance with section
207(d)(1) of the AFA, the loan's full principal amount on December 30,
1998.
(c) Interest. Interest shall, from the date NMFS disbursed the loan
until the date the borrower fully repays the loan, accrue at a fixed
rate equal to 2 percent of the principal amount of the loan outstanding
plus such additional percent as the Secretary of Commerce shall be
obligated to pay as the interest cost of borrowing from the United
States Treasury the funds with which to make the loan. Interest shall
be simple interest and shall accrue on the basis of a 365-day year.
(d) Repayment. The fee shall be the exclusive source of loan
repayment. The fee shall be payable on all fee fish, without
interruption, until such a time as all loan principal and accrued
interest is fully repaid.
(e) Application of fee receipts. NMFS shall apply all fee receipts
it receives, first, to payment of the loan's accrued interest and,
second, to reduction of the loan's principal balance.
(f) Obligation. The borrower shall repay the loan in accordance
with the AFA and this subpart.
Sec. 679.62 Fee payment and collection.
(a) Payment and collection. (1) The full fee is due and payable at
the time of fish delivery. Each fish buyer shall collect the fee at the
time of fish delivery by deducting the fee from the delivery value
before paying (or, as the case may be, promising later to pay) the net
delivery value. Each fish seller shall pay the fee at the time of fish
delivery by receiving from the fish buyer the net delivery value (or,
as the case may be, the fish buyer's promise later to pay the net
delivery value) rather than the delivery value. Regardless of when the
fish buyer pays the net delivery value, the fish buyer shall collect
the fee at the time of fish delivery;
(2)(i) Each fish seller shall be deemed, for the purpose of the fee
collection, deposit, disbursement, and accounting requirements of this
subpart, to be both the fish seller and the fish buyer (and all
requirements and penalties under this subpart applicable to both a fish
seller and a fish buyer shall equally apply to the fish seller) each
time that the fish seller sells fee fish to:
(A) Any fish buyer whose place of business is not located in the
United States, who does not take delivery, title, or possession of the
fee fish in the United States, who is not otherwise subject to this
subpart, or to whom or against whom NMFS cannot otherwise apply or
enforce this subpart,
(B) Any fish buyer who is a general food-service wholesaler or
supplier, a restaurant, a retailer, a consumer, some other type of end-
user, or some other fish buyer not engaged in the business of buying
fish from fish sellers for the purpose of reselling the fish (either
with or without processing the fish), or
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(C) Any other fish buyer who the fish seller has good reason to
believe is a fish buyer not subject to this subpart or to whom or
against whom NMFS cannot otherwise apply or enforce this subpart,
(ii) In each such case the fish seller shall, with respect to the
fee fish involved in each such case, discharge, in addition to the fee
payment requirements of this subpart, all the fee collection, deposit,
disbursement, accounting, recordkeeping, and reporting requirements
that this subpart otherwise imposes on the fish buyer, and the fish
seller shall be subject to all the penalties this subpart provides for
a fish buyer's failure to discharge such requirements;
(b) Notification. (1) Before the time that the fee first becomes
effective, NMFS will send an appropriate fee payment and collection
notification to each affected fish seller and fish buyer of whom NMFS
has knowledge.
(2) When NMFS determines that the loan is fully repaid, NMFS will
publish a FEDERAL REGISTER notice that the fee is no longer in effect
and should no longer be either paid or collected. NMFS will then also
send notification to each affected fish seller and fish buyer of whom
NMFS has knowledge;
(c) Failure to pay or collect. (1) If a fish buyer refuses to
collect the fee in the amount and manner that this subpart requires,
the fish seller shall then advise the fish buyer of the fish seller's
fee payment obligation and of the fish buyer's fee collection
obligation. If the fish buyer still refuses to properly collect the
fee, the fish seller, within the next seven calendar days, shall
forward the fee to NMFS. The fish seller at the same time shall also
advise NMFS in writing of the full particulars, including:
(i) The fish buyer's and fish seller's name, address, and telephone
number,
(ii) The name of the fishing vessel from which the fish seller made
fish delivery and the date of doing so,
(iii) The quantity and delivery value of fee fish that the fish
seller delivered, and
(iv) The fish buyer's reason (if known) for refusing to collect the
fee in accordance with this subpart;
(2) If a fish seller refuses to pay the fee in the amount and
manner that this subpart requires, the fish buyer shall then advise the
fish seller of the fish buyer's collection obligation and of the fish
seller's payment obligation. If the fish seller still refuses to pay
the fee, the fish buyer shall then either deduct the fee from the
delivery value over the fish seller's protest or refuse to buy the fee
fish. The fish buyer shall also, within the next seven calendar days,
advise NMFS in writing of the full particulars, including:
(i) The fish buyer's and fish seller's name, address, and telephone
number,
(ii) The name of the fishing vessel from which the fish seller made
or attempted to make fish delivery and the date of doing so,
(iii) The quantity and delivery value of fee fish the fish seller
delivered or attempted to deliver,
(iv) Whether the fish buyer deducted the fee over the fish seller's
protest or refused to buy the fee fish, and
(v) The fish seller's reason (if known) for refusing to pay the fee
in accordance with this subpart.
Sec. 679.63 Fee collection deposits, disbursements, records, and
reports.
(a) Deposit accounts. Each fish buyer that this subpart requires to
collect a fee shall maintain a segregated account at a federally
chartered national bank for the sole purpose of depositing collected
fee revenue and disbursing the fee revenue directly to NMFS in
accordance with paragraph (c) of this section.
(b) Fee collection deposits. At the end of each business week, each
fish buyer shall deposit, in the deposit account established under
paragraph (a) of this section, all fee revenue, not previously
deposited, that the fish buyer has collected through a date not more
than 2 calendar days before the date of deposit. Neither the deposit
account nor the principal amount of deposits in the account may be
pledged, assigned, or used for any purpose other than aggregating
collected fee revenue for disbursement to the subaccount in accordance
with paragraph (c) of this section. The fish buyer is entitled, at any
time, to withdraw deposit interest (if any), but never deposit
principal, from the deposit account for the fish buyer's own use and
purposes.
(c) Deposit principal disbursement. On the last business day of
each month, the fish buyer shall disburse to NMFS the full amount of
deposit principal then in the deposit account. The fish buyer shall do
this by check made payable to ``NOAA Inshore Component Pollock Loan
Subaccount.'' The fish buyer shall mail each such check to the
subaccount lockbox account that NMFS establishes for the receipt of the
disbursements of deposit principal. Each disbursement shall be
accompanied by the fish buyer's settlement sheet completed in the
manner and form that NMFS specifies. NMFS will specify the subaccount's
lockbox account and the manner and form of settlement sheet by means of
the notification in Sec. 679.62(b)(1).
(d) Records maintenance. Each fish buyer shall maintain, in a
secure and orderly manner for a period of at least 3 years from the
date of each transaction involved, at least the following information:
(1) For all deliveries of fee fish that the fish buyer buys from
each fish seller:
(i) The date the delivery is made,
(ii) The seller's identity,
(iii) The round weight of fee fish delivered,
(iv) The identity of the fishing vessel that delivers the fee fish,
(v) The delivery value,
(vi) The net delivery value,
(vii) The identity of the payor to whom the net delivery value is
paid, if other than the fish seller,
(viii) The date the net delivery value is paid, and
(ix) The total fee amount collected;
(2) For all fee collection deposits to and disbursements from the
deposit account:
(i) The dates and amounts of deposits,
(ii) The dates and amounts of disbursements to the subaccount's
lockbox account, and
(iii) The dates and amounts of disbursements to the fish buyer or
other parties of interest earned on deposits.
(e) Annual report. On December 31, 2000, and on each December 31
thereafter until the loan is fully repaid, each fish buyer shall submit
to NMFS a report, on or in the form NMFS specifies, containing the
following information for the preceding year for all fee fish each fish
buyer purchases from fish sellers:
(1) Total round weight bought;
(2) Total delivery value paid;
(3) Total fee amount collected;
(4) Total fee collection amounts deposited by month;
(5) Dates and amounts of monthly disbursements to the subaccount
lockbox;
(6) Total amount of interest earned on deposits and disbursed to
the fish buyer or other parties; and
(7) Depository account balance at year-end.
(f) State records. If landing records that a state requires from
fish sellers contain some or all of the data that this section requires
and confidentiality does not prevent NMFS' access to the records
maintained for the state, then fish buyers can use such records to meet
appropriate portions of this section's recordkeeping requirements. If,
however, state confidentiality provisions make such records unavailable
to NMFS, then fish buyers shall maintain separate records for NMFS that
meet the requirements of this section.
[[Page 71400]]
(g) Audits. NMFS or its agents may audit, in whatever manner NMFS
believes reasonably necessary for the duly diligent administration of
the loan, the books and records of the fish buyers and the fish sellers
in order to ensure proper fee payment, collection, deposit,
disbursement, accounting, recordkeeping, and reporting. Fish buyers and
fish sellers shall make all records of all transactions involving fee
fish catches, fish deliveries, and fee payments, collections, deposits,
disbursements, accounting, recordkeeping, and reporting available to
NMFS or its agents at reasonable times and places and promptly provide
all requested information reasonably related to these records that such
fish sellers and buyers may otherwise lawfully provide. Trip tickets
(or similar accounting records establishing the round weight pounds of
fee fish that each fish buyer buys from each fish seller each time that
each fish buyer does so) are essential audit documentation.
(h) Confidentiality of records. NMFS and its auditing agents shall
maintain the confidentiality of all data to which NMFS has access under
this section and shall neither release the data nor allow the data's
use for any purpose other than the purpose of this subpart; provided,
however, that NMFS may aggregate such data so as to preclude their
identification with any fish buyer or any fish seller and use them in
the aggregate for other purposes.
(i) Refunds. When NMFS determines that the loan is fully repaid,
NMFS will refund any excess fee receipts, on a last-in/first-out basis,
to the fish buyers. Fish buyers shall return the refunds, on a last-in/
first-out basis, to the fish sellers who paid the amounts refunded.
Sec. 679.64 Late charges.
The late charge for fee payment, collection, deposit, and/or
disbursement shall be one and one-half (1.5) percent per month for the
total amount of the fee not paid, collected, deposited, and/or
disbursed when due to be paid, collected, deposited, and/or disbursed.
The full late charge shall apply to the fee for each month or portion
of a month that the fee remains unpaid, uncollected, undeposited, and/
or undisbursed.
Sec. 679.65 Enforcement.
NMFS shall institute an action at law against each fish seller and/
or fish buyer responsible for non-payment, non-collection, non-deposit,
and/or non-disbursement of the fee in accordance with this subpart to
enforce the collection from such fish seller and/or fish buyer of any
fee (including penalties and all costs of collection) due and owing the
United States on account of the loan that such fish seller and/or fish
buyer should have, but did not, pay, collect, deposit, and/or disburse
in accordance with this subpart. All such loan recoveries shall be
applied to reduce the unpaid balance of the loan.
Sec. 679.66 Prohibitions and penalties.
(a) The following activities are prohibited, and it is unlawful for
anyone to:
(1) Avoid, decrease, interfere with, hinder, or delay payment or
collection of (or otherwise fail to fully and properly pay or collect)
any fee due and payable under this subpart or convert (or otherwise use
for any purpose other than the purpose this subpart intends) any paid
or collected fee;
(2) Fail to fully and properly deposit on time the full amount of
all fee revenue collected under this subpart into a deposit account and
disburse the full amount of all deposit principal to the subaccount's
lockbox account--all as this subpart requires;
(3) Fail to maintain full, timely, and proper fee payment,
collection, deposit, and/or disbursement records or make full, timely,
and proper reports of such information to NMFS--all as this subpart
requires;
(4) Fail to advise NMFS of any fish seller's refusal to pay, or of
any fish buyer's refusal to collect, any fee due and payable under this
subpart;
(5) Refuse to allow NMFS or agents that NMFS designates to review
and audit at reasonable times all books and records reasonably
pertinent to fee payment, collection, deposit, disbursement, and
accounting under this subpart or otherwise interfere with, hinder, or
delay NMFS or it agents in the course of their activities under this
subpart;
(6) Make false statements to NMFS, any of the NMFS' employees, or
any of NMFS' agents about any of the matters in this subpart;
(7) Obstruct, prevent, or unreasonably delay or attempt to
obstruct, prevent, or unreasonably delay any audit or investigation
NMFS or its agents conduct, or attempt to conduct, in connection with
any of the matters in this subpart; and/or
(8) Otherwise materially interfere with the efficient and effective
repayment of the loan.
(b) Anyone who violates one or more of the prohibitions of
paragraph (a) of this section is subject to the full range of penalties
the Magnuson-Stevens Act and 15 CFR part 904 provide (including, but
not limited to: civil penalties, sanctions, forfeitures, and punishment
for criminal offenses) and to the full penalties and punishments
otherwise provided by any other applicable law of the United States.
[FR Doc. 99-33068 Filed 12-20-99; 8:45 am]
BILLING CODE 3510-22-F