[Federal Register Volume 65, Number 54 (Monday, March 20, 2000)]
[Rules and Regulations]
[Pages 14919-14926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-6674]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 991207325-0063-02; I.D. 100699A]
RIN 0648-AJ52
Fisheries of the Exclusive Economic Zone Off Alaska; A Cost
Recovery Program for the Individual Fishing Quota Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS establishes regulations to implement cost recovery for
the Individual Fishing Quota (IFQ) program for fixed gear halibut and
sablefish fisheries in waters in and off of Alaska (IFQ Program). Cost
recovery is necessary because section 304(d) of the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act) requires
the Secretary of Commerce (Secretary) to collect fees to recover actual
costs incurred for Federal management and enforcement of these IFQ
fisheries. This action is intended to impose and provide for collection
of such fees.
DATES: Effective March 15, 2000.
ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact
Review (EA/RIR) and the Final Regulatory Flexibility Analysis (FRFA)
for this action may be obtained from NMFS, Sustainable Fisheries
Division, Alaska Region, NMFS, P.O. Box 21668 Juneau, AK 99802-1668,
Attn: Lori J. Gravel, or by calling the Alaska Region, NMFS, at (907)
586-7228.
FOR FURTHER INFORMATION CONTACT: Jay Ginter, 907-586-7228.
SUPPLEMENTARY INFORMATION: Section 304(d)(2)(A) of the Magnuson-Stevens
Act requires the Secretary to ``collect a fee to recover the actual
costs directly related to the management and enforcement of any * * *
individual fishing quota program.'' Section 304(d)(2)(B) of the
Magnuson-Stevens Act specifies an upper limit on these fees, when the
fees must be collected, and where the fees must be deposited. Section
303(d)(4) of the Magnuson-Stevens Act allows NMFS to reserve up to 25
percent of the fees collected for use in an IFQ loan program to aid in
financing the purchase of IFQ or quota share (QS) by entry-level and
small-vessel fishermen.
The final rule will recover costs for the IFQ Program only. NMFS
intends to implement cost recovery for the Community Development Quota
(CDQ) program through separate rulemaking.
The Magnuson-Stevens Act specifies the following with respect to
the imposition of IFQ cost-recovery fees:
1. Fees must recover actual costs directly related to actual
enforcement and management of the IFQ Program;
2. Fees must not exceed 3 percent of the ex-vessel value of fish
harvested under any such program;
3. Fees are in addition to any other fees charged under the
Magnuson-Stevens Act;
4. With the exception of money reserved for the IFQ loan program,
fees must be deposited in the Limited Access System Administrative Fund
(LASAF) in the U.S. Treasury; and
5. Fees must be collected at either the time of a legal landing of
halibut or sablefish, filing of a landing report, or sale of such fish
during a fishing season or in the last quarter of the calendar year in
which the fish is harvested.
Background
NMFS, Alaska Region, administers the IFQ Program. The IFQ Program
is a limited access system authorized by section 303(b) of the
Magnuson-Stevens Act and the Northern Pacific Halibut Act of 1982. NMFS
implemented the IFQ Program in March 1995. Regulations implementing the
IFQ Program are set forth at 50 CFR part 679. NMFS published a proposed
rule to recover costs of managing and enforcing the IFQ Program on
December 27, 1999 (64 FR 72302), and solicited public comments through
January 26, 2000.
Cost Recovery Program Description
An IFQ permit holder incurs a fee liability for every pound of IFQ
halibut and sablefish that is landed on his or her permit. The IFQ
permit holder must collect from himself or herself the amount due for
all IFQ halibut and IFQ sablefish landings on his or her permit(s). The
IFQ permit holder is also responsible for submitting this payment to
NMFS on or before the due date of January 31 following the calendar
year in which the landings were made. The dollar amount of the fee due
is determined by multiplying the IFQ fee percentage (3 percent or less)
by the ex-
[[Page 14920]]
vessel value of each IFQ landing made on a permit and summing the
totals of each permit (if more than one).
More information on the background and details of the program can
be found in the preamble to the proposed rule (64 FR 72302, December
27, 1999).
Changes from the Proposed Rule in the Final Rule
In Sec. 679.5(7)(ii)(C)(2)(ii), examples of documentation that
could establish a factual basis for a revised IFQ fee liability are
provided in response to comment 7.
The proposed rule published December 27, 1999, was corrected to
replace four typographical errors with the correct regulatory text (65
FR 11756; March 6, 2000).
Response to Written Public Comments on the IFQ Cost Recovery
Program Proposed Rule
NMFS, Alaska Region, received several written public comments
regarding the IFQ Cost Recovery Program proposed rule. They are
summarized and responded to as follows.
Comment 1: There is no mechanism or method to determine the amount
(up to 25 percent) of the IFQ cost recovery collections that are
directed to the IFQ loan program.
Response: In September 1997, the North Pacific Fishery Management
Council (Council) recommended to the Secretary an IFQ loan program that
would reserve 25 percent of the fees collected under section 303(d)(2)
of the Magnuson-Stevens Act in the halibut and sablefish fisheries off
Alaska to guarantee obligations that aid in financing the purchase of
IFQs in that fishery by fishermen who fish from small vessels and the
first-time purchase of IFQs by entry level fishermen. Section 303(d)(4)
of the Magnuson-Stevens Act sets 25 percent as the maximum amount of
the collected fees that may be reserved for loan program purposes. The
Secretary has not yet acted to approve this Council recommendation. No
deductions from collected fees will be made until the Council's loan
program recommendation is approved. The absence of this revenue to the
U.S. Treasury, however, does not prevent the U.S. Congress from
appropriating any amount for purposes of the loan program.
Comment 2: NMFS should provide an accounting of how collected fees
are spent.
Response: NMFS agrees. This rule provides for an IFQ Cost Recovery
Program Annual Report that will summarize the actual direct costs
associated management and enforcement of the IFQ Program. This annual
report will be made available to the public.
Comment 3: The International Pacific Halibut Commission (IPHC)
should be eligible to receive part of the funds collected under the IFQ
Cost Recovery Program.
Response: NMFS agrees. The IPHC is in the process of formally
submitting to NMFS an estimate of reimbursable management costs
incurred as a result of the IFQ Program. NMFS will include such costs
in the annual determination of the revised IFQ fee percentage after
receiving these submissions annually from the IPHC. Should such costs
be submitted and included in any future IFQ fee percentage calculation,
the IPHC would subsequently receive the appropriate portion of IFQ cost
recovery collections as reimbursement for those IFQ Program related
costs.
Comment 4: A cost recovery program for the Alaska Community
Development Quota (CDQ) program should also be imposed in the future.
Response: NMFS agrees. The IFQ Program and the CDQ Program are
different fishery management programs and, subsequently, have distinct
costs eligible for Federal or state cost recovery. NMFS and the State
of Alaska (State) are currently considering a CDQ cost recovery fee
program that would be similar in design to, but implemented separately,
from the IFQ program. Because the costs for the CDQ Program and the IFQ
Program involve separate and distinct costs, the corresponding fee
percentages would not necessarily be equal. The exception to this would
be in years when costs of both programs individually equaled or
exceeded the 3 percent limit established by Magnuson-Stevens Act and
the fee percentage of each would, therefore, equal 3 percent during
that year.
Comment 5: The IFQ Cost Recovery Program does not include a process
for an ``Oversight Committee'' that would allow industry to review and
comment on agency budgets and the associated fee percentage on an
annual basis.
Response: A process exists for individual citizens or independent
groups to provide comment to the Regional Administrator regarding
possible adjustment of the IFQ fee percentage. NMFS will publish and
distribute specific information regarding the actual management and
enforcement cost of the IFQ Program during the most recently completed
fiscal year, as well as such information regarding projected costs of
the IFQ Program during the current fiscal year. In addition, the Annual
Report as described in Sec. 679.45(i) of this rule will provide a
summary of the actual annual budgetary expenditures by each of the
relevant NMFS Divisions and the IPHC.
The Council has two oversight committees, the longstanding IFQ
Implementation Committee and the more recently established IFQ/CDQ Fee
Committee, either of which may provide the Regional Administrator with
relevant new information. The IFQ/CDQ Fee Committee contributed
significantly to the constructive development of this IFQ Cost Recovery
Program rule. Both are Council Committees and can provide relevant
information.
Comment 6: IFQ standard prices should be distributed to the fleet
through industry associations.
Response: NMFS agrees and will provide industry associations with
copies of the NMFS IFQ standard price list for distribution. This is in
addition to making available to the public the NMFS IFQ standard price
list via the Federal Register and other means of public notification
such as direct mailing to all IFQ permit holders and IFQ registered
buyers.
Comment 7: The rule should provide additional clarification of the
``adequate documentation'' that would be required for a fishermen
seeking to establish a revised IFQ fee liability.
Response: NMFS agrees but does not want to overly constrain IFQ
permit holders by limiting options for defensibly documenting
transactions of initial sale of their IFQ landings. Clarification
language that includes examples of such documentation is incorporated
in this final rule in Sec. 679.5(l)(7)(ii)(C)(2)(ii).
Comment 8: Making IFQ permit holders responsible for collecting
from themselves and submitting the fees to NMFS rather than making IFQ
registered buyers operating as shoreside processors the responsible fee
collectors and submitters will preclude the ability to track fee
amounts owed by fishery, IFQ permit holder, and species year after
year.
Response: NMFS disagrees. NMFS has developed a new computerized
system capable of integrating aspects of the IFQ fisheries, including
IFQ landings by species, permit number, IFQ permit holder, location,
ex-vessel value, and date, storing this information year after year.
The Restricted Access Management Division will maintain and operate
this computerized data management system for the IFQ Cost Recovery
Program. Furthermore, this rule requires IFQ registered buyers
operating as shoreside processors to collect and submit to NMFS ex-
vessel
[[Page 14921]]
value information regarding IFQ landings. This volume and value
information will be included in the new computerized IFQ cost recovery
system and will help track the amount owed by IFQ permit holders
through the determination of NMFS standard prices by species, port or
port-group, and month.
Comment 9: One commentator assumed that NMFS plans to enforce
payment from IFQ permit holders by withholding the following year's
quota issuance.
Response: NMFS clarifies this incorrect assumption. NMFS will issue
IFQ each year to IFQ permit holders. However, if the Regional
Administrator determines that an IFQ permit holder has not paid the
full IFQ fee liability incurred by the permit holder, then the Regional
Administrator may disapprove any transfer of IFQ or QS to or from the
IFQ permit holder in accordance with Sec. 679.41(c)(4). The Regional
Administrator's determination may be appealed by the IFQ permit holder
pursuant to Sec. 679.45(h). During the period of an appeal the IFQ
permit will remain valid, although transfer restrictions may be imposed
or, if already imposed, remain in place. The IFQ permit will remain
valid until a final agency action (FAA) is issued to the IFQ permit
holder. Upon issuance of an FAA which identifies a final IFQ fee
liability amount still due by the IFQ permit holder as specified in
Secs. 679.45 and 679.5(l)(7)(ii), the IFQ permit (i.e., the
authorization to fish the IFQ/QS) will immediately become invalid
pursuant to Sec. 679.4(d)(7).
Compliance Guide for Small Entities
In compliance with the Small Business Regulatory Enforcement
Fairness Act of 1996, NMFS is publishing this paragraph as a compliance
guide that explains how small entities must comply with regulatory
changes made by this final rule. This final rule requires IFQ permit
holders to collect and submit to NMFS their IFQ fees as established and
described in these regulations. IFQ permit holders should be aware that
all of their IFQ landings have an IFQ fee liability, at the default
rate of 3 percent of ex-vessel value, for which they are responsible
for collecting and submitting in accordance with Sec. 679.5.(l)(7)(ii)
and Sec. 679.45 of this regulation. Also, IFQ registered buyers should
be aware that they must comply with the IFQ reporting and record-
keeping requirements specified in Sec. 679.5(l) and the landing report
at Sec. 679.5(i)(2), in particular.
Classification
The Regional Administrator has determined that this final rule is
necessary to fulfil the requirement of section 304(d)(2) the Magnuson-
Stevens Act. This action has been determined to be not significant for
purposes of E.O. 12866.
The AA finds for good cause under 5 U.S.C. 553(d)(3) that the
effectiveness of this rule should not be delayed for 30 days because a
delay would be contrary to the public interest. The primary effect of
this action will occur in January 2001 when the IFQ permit holders are
required to submit fees based on the IFQ halibut and sablefish landings
they made during the previous year. While submission of fees is not
required until January 2001, fee liability starts with the effective
date of the rule. Delayed effectiveness of the rule would prevent fee
liability from being applied uniformly to all landings made during the
IFQ fishing season, which starts March 15, 2000, and would cause
substantial confusion and inequity as to which landings IFQ fee
liability applies.
NMFS prepared an FRFA for this final rule in compliance with the
Regulatory Flexibility Act. The FRFA describes the impact this final
rule will have on small entities. A copy of the FRFA can be obtained
from NMFS (see ADDRESSES).
The Magnuson-Stevens Act requires the Secretary to impose a fee to
recover the actual management and enforcement costs of the Alaska IFQ
Program. The objective of this rule is to collect revenue from
fishermen participating in the IFQ Program to help recover the costs
incurred by the Federal government as a result of the management and
enforcement of the IFQ Program.
This rule applies to persons who possess and use IFQ Registered
Buyer Permits or IFQ Permits (fishermen). IFQ registered buyer permit
holders who do not operate as shoreside processors or those IFQ permit
holders who do not land IFQ fish (i.e., possess unfished permits) would
not be subject to this rule. In 1998, approximately 9 percent of IFQ
pounds available remained unfished by the end of the season. As for IFQ
registered buyers, generally, fewer than 40 percent of those who held
IFQ Registered Buyer Permits actually reported landings (i.e., active
buyer permit users). In addition, imposition of the cost recovery fees
could indirectly impact the income of IFQ crew members if IFQ permit
holders reduce the income to members of their crews due to the cost
recovery fees. Detailed figures for the number of IFQ crew members are
not available.
This action directly affects two types of registered small entities
as defined by the Small Business Administration: (1) IFQ registered
buyers who operate as shoreside processors and purchase IFQ halibut or
sablefish from IFQ permit holders, and (2) halibut and sablefish IFQ
permit holders. By year-end 1998, 3,978 persons held one or more IFQ
permits (fishermen) and reported landings of at least 1 lb (0.45 kg) of
IFQ fish. Also in 1998, NMFS issued 859 IFQ registered buyer permits,
but only 309 were active IFQ registered buyers. Only 79 of the active
IFQ registered buyers operated as shoreside processors that purchased
IFQ halibut or sablefish. The 79 IFQ registered buyers identified
themselves in 1998 as shoreside processors, and would be the only type
of IFQ registered buyers regulated under the proposed action. The
number of IFQ permits and IFQ registered buyer permits has decreased
each year since 1995 when the program was initiated and is expected to
stabilize near 1998 levels. For purposes of the IFRA, all 79 IFQ
permits holders are considered small entities. Therefore, the total
number of small entities that this rule would apply to IFQ registered
buyers and permit holders would be expected to be equal to or less than
4,057. This rule imposes new Recordkeeping and reporting requirements.
These are discussed below in the context of the Paperwork Reduction Act
burden.
A broad variety of alternatives was considered in the development
of the proposed regulations for IFQ cost recovery. The alternatives
were considered in the context of combining various options associated
with a specific set of necessary program elements. Some of the
necessary program elements include the scope of the IFQ cost recovery
regulations; identification of the IFQ fishery; the annual fee
percentage value; the IFQ fish subject to the IFQ cost recovery fee;
the method used to determine ex-vessel values of IFQ halibut and IFQ
sablefish landings; the method used to establish standard ex-vessel
prices for IFQ halibut and IFQ sablefish; the methods of accounting for
post-season ex-vessel price adjustments and other corrections to ex-
vessel value; IFQ fee collection and submission mechanisms and
schedules; and the implementation date.
In selecting the preferred alternative, NMFS incorporated many
elements designed to minimize negative impacts on small entities.
1. The fee would apply only to IFQ halibut and sablefish landings,
and not to all species landed by IFQ fishermen.
2. Fishermen would be able to choose whether to use actual or
standard ex-
[[Page 14922]]
vessel value of their IFQ landings whenever possible.
3. Standard prices would be primarily based on current year ex-
vessel prices rather than previous year ex-vessel prices, and would be
refined to represent ex-vessel prices by species, by month, and by
port-group.
4. Registered buyers and IFQ permit holders would be required to
submit recordkeeping and reporting information only once a year, rather
than multiple mid-season submissions.
NMFS also considered the alternative of not implementing an IFQ
cost recovery (status quo). The status quo alternative would minimize
economic impacts on small entities in that no new fee would be imposed.
However, this alternative would not be in compliance with the Magnuson-
Stevens Act. Alternatives to the proposed recordkeeping and reporting
requirements could reduce economic impacts on small entities. For
instance, implementing an electronic reporting system could reduce the
burdens associated with filing annual reports; however, NMFS has not
ascertained whether electronic reporting would allow for comparable,
easily interpreted data and costs associated with acquiring new
software could counterbalance any benefits. NMFS also considered
extracting data from reports currently required of AGF&G. The ADF&G
reports would not provide all the necessary data in a sufficiently
timely manner. NMFS also considered an alternative that would not have
assessed a fee on retro-payments. While this approach would benefit
permit-holders who accepted retro-payments, it would not be acceptable
to those who do not. In addition, this approach might not comply with
the spirit of the statute to assess a fee on the full amount of
payment.
NMFS received no comments on the Initial Regulatory Flexibility
Analysis prepared for this rule and no changes were made in the final
rule.
Notwithstanding any other provision of law, no person is required
to respond to and no person shall be subject to a penalty for failure
to comply with a collection of information subject to the requirements
of the PRA unless that collection of information displays a currently
valid Office of Management and Budget (OMB) Control Number.
This rule contains collection-of-information requirements subject
to the Paperwork Reduction Act (PRA). The collection of this
information has been approved by the Office of Management and Budget,
OMB Control Number 0648-0398.
The recordkeeping and reporting requirements will apply to the IFQ
permit holder and the IFQ registered buyer operating as a shoreside
processor and buying halibut or sablefish landed under the IFQ Program.
The estimated time for an IFQ permit holder to complete the IFQ payment
submission form package is 2.0 hours per response. The time required to
complete the buyer report is estimated to be 2.0 hours per report. The
estimated response times shown include the time to review the
instructions, search existing sources, gather and maintain the data
needed, and complete and review the collection of information. Send
comments regarding these burden estimates or any other aspect of the
data requirements, including suggestions for reducing the burden, to
NMFS (see ADDRESSES) and to the Office of Information and Regulatory
Affairs, OMB, Washington, DC 20503, Attention: NOAA Desk Officer.
List of Subjects in 50 CFR Part 679
Alaska, Cost recovery, Fees, Fisheries, IFQ, and Recordkeeping and
reporting requirements.
Dated: March 13, 2000
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set forth in the preamble, 50 CFR part 679 is
amended to read as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
1. The authority citation for 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. 679.2, definitions for listed terms are added in
alphabetical order to read as follows:
Sec. 679.2 Definitions.
* * * * *
KIFQ actual ex-vessel value means the U.S. dollar amount of all
compensation, monetary or non-monetary, including any IFQ retro-
payments received by an IFQ permit holder for the purchase of IFQ
halibut or IFQ sablefish landing(s) on his or her permit(s) described
in terms of IFQ equivalent pounds.
* * * * *
IFQ equivalent pound(s) means the weight amount, recorded in
pounds, for an IFQ landing and calculated as round weight for sablefish
and headed and gutted weight for halibut.
IFQ fee liability means that amount of money for IFQ cost recovery,
in U.S. dollars, owed to NMFS by an IFQ permit holder as determined by
multiplying the appropriate standard ex-vessel value or actual ex-
vessel value of his or her IFQ halibut or IFQ sablefish landing(s) by
the appropriate IFQ fee percentage.
IFQ fee percentage means that positive number no greater than 3
percent (0.03) determined by the Regional Administrator and established
for use to calculate the IFQ cost recovery fee liability for an IFQ
permit holder.
* * * * *
IFQ permit holder means the person identified on an IFQ permit, at
the time a landing is made, as defined at Sec. 679.4(d)(3)(B).
IFQ program means the individual fishing quota program for the
fixed gear fisheries for Pacific halibut and sablefish in waters in and
off Alaska and governed by regulations under this part.
IFQ registered buyer means the person identified on a registered
buyer permit, as defined at Sec. 679.4(d)(2).
IFQ retro-payment means the U.S. dollar value of a payment,
monetary or non-monetary, made to an IFQ permit holder for the purchase
of IFQ halibut or IFQ sablefish landed at some previous time.
* * * * *
IFQ standard ex-vessel value means the total U.S. dollar amount of
IFQ halibut or IFQ sablefish landings as calculated by multiplying the
number of landed IFQ equivalent pounds by the appropriate IFQ standard
price determined by the Regional Administrator.
IFQ standard price means a price, expressed in U.S. dollars per IFQ
equivalent pound, for landed IFQ halibut and IFQ sablefish determined
annually by the Regional Administrator and documented in an IFQ
standard price list published by NMFS.
* * * * *
Limited Access System Administrative Fund (LASAF) means the
administrative account used for depositing cost recovery fee payments
into the U.S. Treasury as described in the Magnuson-Stevens Act under
section 304(d)(2)(C)(i) and established under section 305(h)(5)(B).
* * * * *
NMFS Person Identification Number means a unique number assigned by
NMFS to any person who applied for, or who has been issued, a
certificate, license, or permit under any fishery management program
administered by the Alaska Region for purposes of the
[[Page 14923]]
NMFS/Alaska Region Integrated Regional Data System.
* * * * *
3. In Sec. 679.4, paragraph (a)(5) is revised and paragraph (d)(7)
is added to read as follows:
Sec. 679.4 Permits.
(a) * * *
(5) Sanctions and denials. Procedures governing sanctions and
denials are found at subpart D of 15 CFR part 904. Such procedures are
required for enforcement purposes, not administrative purposes.
* * * * *
(d) * * *
(7) Validity. An IFQ permit issued under this part is valid only if
all IFQ fee liability of the IFQ permit holder that is due as a result
of final agency action has been paid as specified in Secs. 679.45 and
679.5(l)(7)(ii).
* * * * *
4. In Sec. 679.5, paragraph (l)(7) is added to read as follows:
Sec. 679.5 Recordkeeping and reporting.
* * * * *
(l) * * *
(7) IFQ cost recovery program--(i) IFQ buyer report.
(A) Applicability. An IFQ registered buyer that also operates as a
shoreside processor and receives and purchases IFQ landings of
sablefish or halibut must submit annually to NMFS a complete IFQ Buyer
Reportas described in this paragraph (l) and as provided by NMFS for
each reorting period, as described at Sec. 679.5 (l)(7)(i)(E), in which
the registered buyer receives IFQ fish.
(B) Due date. A complete IFQ Buyer Report must be postmarked or
received by the Regional Administrator not later than October 15
following the reporting period in which the IFQ registered buyer
receives the IFQ fish.
(C) Information required. A complete IFQ Buyer Report must include
the following information:
(1) IFQ registered buyer identification, including:
(i) Name,
(ii) Registered buyer number,
(iii) Social Security number or tax identification number,
(iv) NMFS person identification number (if applicable),
(v) Business address,
(vi) Telephone number,
(vii) Facsimile telephone number,
(viii) Primary registered buyer activity,
(ix) Other registered buyer activity, and
(x) Landing port location;
(2) Pounds purchased and values paid. (i) The monthly total
weights, represented in IFQ equivalent pounds by IFQ species, that were
landed at the landing port location and purchased by the IFQ registered
buyer;
(ii) The monthly total gross ex-vessel value, in U.S. dollars, of
IFQ pounds, by IFQ species, that were landed at the landing port
location and purchased by the IFQ registered buyer;
(3) Value paid for price adjustments. (i) The monthly total U.S.
dollar amount of any IFQ retro-payments (correlated by IFQ species,
landing month(s), and month of payment) made in the current year to IFQ
permit holders for landings made during the previous calendar year;
(ii) Certification, including the signature of the individual
authorized by the IFQ registered buyer to submit the IFQ Buyer Report,
and date of signature.
(D) Submission address. A complete IFQ Buyer Report must be
received at the following address by mail or facsimile transmission:
Administrator, Alaska Region, NMFS, Attn: RAM Program, P.O. Box 21668,
Juneau, AK 99802-1668, Facsimile: (907) 586-7354.
(E) Reporting period. The reporting period of the IFQ Buyer Report
shall extend from October 1 through September 30 of the following year,
inclusive.
(ii) IFQ permit holder Fee Submission Form--(A) Applicability. An
IFQ permit holder who holds an IFQ permit against which a landing was
made must submit to NMFS a complete IFQ permit holder Fee Submission
Form provided by NMFS.
(B) Due date and submittal. A complete IFQ permit holder Fee
Submission Form must be postmarked or received by the Regional
Administrator not later than January 31 following the calendar year in
which any IFQ landing was made.
(C) Contents of an IFQ Fee Submission Form. For each of the
sections described here, a permit holder must provide the specified
information.
(1) Identification of the IFQ permit holder. An IFQ permit holder
with an IFQ landing must accurately record on the identification
section of the IFQ Fee Submission Form the following information:
(i) The printed name of the IFQ permit holder;
(ii) The NMFS person identification number;
(iii) The Social Security number or tax ID number of the IFQ permit
holder;
(iv) The business mailing address of the IFQ permit holder; and
(v) The telephone and facsimile number (if available) of the IFQ
permit holder.
(2) IFQ landing summary and estimated fee liability. NMFS will
provide to an IFQ permit holder an IFQ Landing Summary and Estimated
Fee Liability page as required by Sec. 679.45(a)(2). The IFQ permit
holder must either accept the accuracy of the NMFS estimated fee
liability associated with his or her IFQ landings for each IFQ permit,
or calculate a revised IFQ fee liability in accordance with paragraph
(l)(7)(ii)(C)(2)(i) of this section. The IFQ permit holder may
calculate a revised fee liability for all or part of his or her IFQ
landings.
(i) Revised fee liability calculation. To calculate a revised fee
liability, an IFQ permit holder must multiply the IFQ percentage in
effect by either the IFQ actual ex-vessel value or the IFQ standard ex-
vessel of the IFQ landing. If parts of the landing have different
values, the permit holder must apply the appropriate values to the
different parts of the landings.
(ii) Documentation. If NMFS requests in writing that a permit
holder submit documentation establishing the factual basis for a
revised IFQ fee liability, the permit holder must submit adequate
documentation by the 30th day after the date of such
request. Examples of such documentation regarding initial sales
transactions of IFQ landings include valid fish tickets, sales
receipts, or check stubs that clearly identify the IFQ landing amount,
species, date, time, and ex-vessel value or price.
(3) Fee calculation section--(i) Information required. An IFQ
permit holder with an IFQ landing must record the following information
on the Fee Calculation page: The name of the IFQ permit holder; the
NMFS person identification number; the fee liability amount due for
each IFQ permit he or she may hold; the IFQ permit number corresponding
to such fee liability amount(s) due; the total price adjustment payment
value for all IFQ halibut and/or sablefish (e.g., IFQ retro-payments)
received during the reporting period for the IFQ Fee Submission Form as
described in Sec. 679.5(l)(7)(ii)(D); and the fee liability amount due
for such price adjustments.
(ii) Calculation of total annual fee amount. An IFQ permit holder
with an IFQ landing must perform the following calculations and record
the results on the Fee Calculation page: add all fee liability
amount(s) due for each IFQ permit and record the sum as the sub-total
fee liability for all permits; multiply price adjustment payment(s)
received for each IFQ species by the fee percentage in effect at the
time the payment(s) was received by the IFQ permit holder; add the
resulting fee
[[Page 14924]]
liability amounts due for all price adjustment payments for each IFQ
species, then enter the sum as the sub-total fee for price adjustments;
add the sub-total fee liability for all permits and the sub-total fee
for price adjustments, then enter the resulting sum as the total annual
fee amount on the Fee Calculation page and on the Fee Payment page.
(4) Fee payment and certification section--(i) Information
required. An IFQ permit holder with an IFQ landing must provide his or
her NMFS person identification number and must sign and date and have
notarized by a Notary Public the Fee Payment section and record the
following: his or her printed name; the total annual fee amount as
calculated and recorded on the Fee Calculation page; the total of any
pre-payments submitted to NMFS that apply to the total annual fee
amount; the remaining balance fee; and the enclosed payment amount.
(ii) Calculation of balance fee payment. An IFQ permit holder with
an IFQ landing must perform the following calculation on the Fee
Payment section of the Fee Submission Form: Subtract from the total
annual fee amount the total of all pre-payments made (if any) to NMFS
and any credits held by NMFS that are applicable to that year's total
IFQ cost recovery fees, and record the result as the balance of the fee
amount due.
(D) Reporting Period. The reporting period of the IFQ Fee
Submission Form shall extend from January 1 to December 31 of the year
prior to the January 31 due date described in Sec. 679.5(l)(7)(ii)(B).
* * * * *
5. In Sec. 679.41, paragraph (c)(8) is revised and paragraph (c)(9)
is added to read as follows:
Sec. 679.41 Transfer of quota shares and IFQ.
* * * * *
(c) * * *
(8)(i) The person applying to make or receive the IFQ or QS
transfer has paid all IFQ fees that have become due as a result of an
initial administrative determination.
(ii) The person applying to make or receive the IFQ or QS transfer
who has not paid all IFQ fees that are due (as provided under
Sec. 679.45(a)) has timely appealed the administrative determination
that IFQ fees have not been paid in full and has submitted to NMFS an
amount sufficient to satisfy any disputed liability pending a final
agency action.
(9) Other pertinent information requested on the Application for
Transfer has been supplied to the satisfaction of the Regional
Administrator.
* * * * *
6. Section 679.45 is added to Subpart D to read as follows:
Sec. 679.45 IFQ cost recovery program.
(a) Cost recovery fees--(1) Responsibility. The person documented
on the IFQ permit as the permit holder at the time of an IFQ landing
must comply with the requirements of this section. Subsequent transfer
of QS or IFQ does not affect the permit holder's liability for
noncompliance with this section.
(2) IFQ Fee Liability Determination. After each IFQ fishing year,
the Regional Administrator will issue each IFQ permit holder a summary
of his or her IFQ pounds landed during that IFQ fishing year for each
permit as part of the IFQ Landing and Estimated Fee Liability page
described at Sec. 679.5(l)(7)(ii)(C)(2). The summary will include an
estimated IFQ fee liability based on the standard ex-vessel values of
the landings. The summary and estimated fee liability will include
details of IFQ equivalent pounds landed by permit, port or port-group,
species, date, and IFQ standard prices. The permit holder must either
accept NMFS's estimate of IFQ liability or revise NMFS's estimate of
IFQ fee liability using the Fee Submission Form described at
Sec. 679.5(l)(7)(ii). If the permit holder revises NMFS's estimate of
his or her fee liability, NMFS may request in writing that the permit
holder submit documentation establishing the factual basis for the
revised calculation. If the permit holder fails to provide adequate
documentation by the 30th day after the date of such
request, NMFS will determine the IFQ permit holder's fee liability
based on standard ex-vessel values.
(3) Fee Collection. An IFQ permit holder with an IFQ landing is
responsible for self-collecting his or her own fee during the calendar
year in which the IFQ fish is harvested.
(4) Payment--(i) Payment due date. An IFQ permit holder must submit
his or her IFQ fee liability payment(s) to NMFS at the address provided
in this section at paragraph (a)(4)(iii) of this section not later than
January 31 of the year following the calendar year in which the IFQ
landings were made.
(ii) Payment recipient. Make payment payable to NMFS.
(iii) Payment address. Mail payment and related documents to:
Administrator, Alaska Region, NMFS, Attn: RAM Program, P.O. Box 21668,
Juneau, AK 99802-1668, Facsimile: (907) 586-7354.
(iv) Payment method. Payment must be made by personal check drawn
on a U.S. bank account, money order, or bank certified check.
(b) IFQ ex-vessel value determination and use--(1) General. An IFQ
permit holder must use either the IFQ standard ex-vessel value or the
IFQ actual ex-vessel value when determining the IFQ fee liability based
on ex-vessel value. An IFQ permit holder must base all fee liability
calculations on the ex-vessel value that correlates to landed IFQ fish
that is recorded in IFQ equivalent pounds.
(2) IFQ actual ex-vessel value. An IFQ permit holder that uses
actual ex-vessel value, as defined in Sec. 679.2, to determine IFQ fee
liability must document actual ex-vessel value for each IFQ permit.
(c) IFQ standard ex-vessel value determination and use--(1) Use of
standard price. An IFQ permit holder that uses standard ex-vessel value
to determine the IFQ fee liability as part of a revised IFQ fee
liability submission must use the corresponding standard price(s) as
published in the Federal Register.
(2) Duty to publish list--(i) General. Each year the Regional
Administrator will publish IFQ standard prices in the Federal Register
during the last quarter of each calendar year. The standard prices will
be described in U.S. dollars per IFQ equivalent pound, for IFQ halibut
and sablefish landings made during the current calendar year.
(ii) Effective duration. The IFQ standard prices will remain in
effect until revised by the Regional Administrator by notification in
the Federal Register based upon new information of the type set forth
in this section. IFQ standard prices published in the Federal Register
by NMFS shall apply to all landings made in the same calendar year as
the IFQ standard price publication and shall replace any IFQ standard
prices previously provided by NMFS that may have been in effect for
that same calendar year.
(iii) Determination. NMFS will calculate the IFQ standard prices to
reflect, as closely as possible by month and port or port-group, the
variations in the actual ex-vessel values of IFQ halibut and IFQ
sablefish landings based on information provided in the IFQ Buyer
Reports as described in Sec. 679.5(l)(7)(i). The Regional Administrator
will base IFQ standard prices on the following types of information:
(A) Landed pounds by IFQ species, port-group, and month;
(B) Total ex-vessel value by IFQ species, port-group, and month;
and
[[Page 14925]]
(C) Price adjustments, including IFQ retro-payments.
(d) IFQ fee percentage.--(1) Default percentage. The IFQ fee
percentage is 3 percent (0.03) unless adjusted by the Regional
Administrator by publication in the Federal Register in accordance with
Sec. 679.45(d)(3).
(2) Calculating fee percentage value. Each year the Regional
Administrator will calculate the fee percentage.
(i) Factors. In making the calculations the Regional Administrator
will consider the following factors:
(A) The catch to which the IFQ fee will apply;
(B) The projected ex-vessel value of that catch;
(C) The costs directly related to the management and enforcement of
the IFQ program;
(D) The funds available for the IFQ program in the Limited Access
System Administrative Fund (LASAF); and
(E) Nonpayment of fee liabilities.
(ii) Methodology. In making the calculation, the Regional
Administrator will use the methodology described here.
[100 x (DPC - AB) / V] / (1 -NPR) where:
DPC is the direct program costs for the IFQ fishery for the
previous fiscal year,
AB is the projected end of the year LASAF account balance for the
IFQ program,
V is the projected ex-vessel value of the catch subject to the IFQ
fee for the current year, and
NPR is the fraction of the fee assessments that is expected to
result in nonpayment.
(3) Adjustments. (i) General. During or before the last quarter of
each year, the Regional Administrator will consider adjusting the IFQ
fee percentage. Consideration will be based on the calculations
described in Sec. 679.45(d)(2). The Regional Administrator may reduce
the IFQ fee percentage at any time based on new information of the type
set forth in Sec. 679.45(d)(2).
(ii) In-season effective period. An in-season reduction in the IFQ
fee percentage supersedes the IFQ fee percentage previously in effect
for the calendar year and remains in effect through the end of the
calendar year in which it was determined unless otherwise adjusted by
the Regional Administrator.
(4) Publication. The Regional Administrator will publish
notification in the Federal Register any adjustment of the IFQ fee
percentage.
(5) Applicable percentage. The IFQ permit holder must use the IFQ
fee percentage in effect at the time an IFQ landing is made to
calculate his or her fee liability for such landed IFQ pounds unless
the percentage is subsequently adjusted as described in
Sec. 679.45(d)(3). The IFQ permit holder must use the IFQ percentage in
effect at the time an IFQ retro-payment is received by the IFQ permit
holder to calculate his or her IFQ fee liability for the IFQ retro-
payment.
(e) Non-payment of fee. If an IFQ permit holder does not submit a
complete Fee Submission Form and corresponding payment by the due date
described in Sec. 679.45(a)(2) and (3), the Regional Administrator may:
(1) At any time thereafter send an IAD to the IFQ permit holder
stating that the IFQ permit holder's estimated fee liability, as
calculated by the Regional Administrator and sent to the IFQ permit
holder pursuant to Sec. 679.45(a)(2) is the amount of IFQ fee due from
the IFQ permit holder.
(2) Disapprove any transfer of IFQ or QS to or from the IFQ permit
holder in accordance with Sec. 679.41(c)(8)(i). Upon final agency
action determining that an IFQ permit holder has not paid his or her
IFQ fee liability, any IFQ fishing permit held by the IFQ permit holder
is not valid until all IFQ fee liabilities are paid. If payment is not
received by the 30th day after the final agency action, the
matter will be referred to the appropriate authorities for purposes of
collection.
(f) Underpayment of IFQ fee. (1) When an IFQ permit holder has
incurred a fee liability and made a timely payment to NMFS of an amount
less than the NMFS estimated IFQ fee liability, the Regional
Administrator will review the Fee Submission Form and related
documentation submitted by the IFQ permit holder. If the Regional
Administrator determines that the IFQ permit holder has not paid a
sufficient amount, the Regional Administrator may disapprove any
transfer of IFQ or QS to or from the IFQ permit holder in accordance
with Sec. 679.41(c)(4). The Regional Administrator will notify the IFQ
permit holder by letter that an insufficient amount has been paid and
that the IFQ permit holder has 30 days from the date of the letter to
either pay the amount determined to be due or provide additional
documentation to prove that the amount paid was the correct amount. The
Regional Administrator will evaluate any additional documentation
submitted by an IFQ permit holder in support of his or her payment. If
the Regional Administrator determines that the additional documentation
does not meet the IFQ permit holder's burden of proving his or her
payment is correct, the Regional Administrator will send the permit
holder an IAD indicating that the permit holder did not meet the burden
of proof to change the IFQ fee liability as calculated by the Regional
Administrator based upon the IFQ standard ex-vessel value.
(2) After expiration of the 30-day period, the Regional
Administrator will issue an IAD and notify the IFQ permit holder. The
IAD will set out the facts and indicate the deficiencies in the
documentation submitted by the permit holder. An IFQ permit holder who
receives an IAD may appeal pursuant to Sec. 679.43. In an appeal of an
IAD made under this section, the IAD permit holder has the burden of
proving his or her claim.
(3) If the permit holder fails to file an appeal of the IAD
pursuant to Sec. 679.43, the IAD will become the final agency action.
If the IAD is appealed and the final agency action is a determination
that additional sums are due from the IFQ permit holder, the IFQ permit
holder must pay any IFQ fee amount determined to be due not later than
30 days from the issuance of the final agency action. Once a fee
liability determination becomes final, any IFQ fishing permit held by
the IFQ permit holder will be deemed not valid until all IFQ fee
liabilities have been paid. If payment is not received by the
30th day after the final agency action, the matter will be
referred to the appropriate authorities for purposes of collection.
(g) Over payment. Upon issuance of final agency action, any amount
submitted to NMFS in excess of the IFQ fee liability determined to be
due by the final agency action will be returned to the IFQ permit
holder unless the permit holder requests the agency to credit the
excess amount against the IFQ permit holder's future IFQ fee liability.
(h) Appeals and requests for reconsideration. An IFQ permit holder
who receives an IAD may either appeal the IAD pursuant to Sec. 679.43
or request reconsideration. Within 60 days from the date of issuance of
the IAD, the Regional Administrator may undertake a reconsideration of
the IAD on his or her own initiative. If a request for reconsideration
is submitted or the Regional Administrator initiates a reconsideration,
the 60-day period for appeal under Sec. 679.43 will begin anew upon
issuance of the Regional Administrator's reconsidered IAD. The Regional
Administrator may undertake only one reconsideration of the IAD, if
any. If an IFQ permit holder fails to file an appeal of the IAD
pursuant to Sec. 679.43, the IAD will become the final agency action.
In any appeal or reconsideration of an IAD made under this section, an
IFQ permit holder has the burden of proving his or her claim.
[[Page 14926]]
(i) Annual report. NMFS will publish annually a report describing
the status of the IFQ Cost Recovery Program.
[FR Doc. 00-6674 Filed 3-14-00; 4:53 pm]
BILLING CODE 3510-22-F