[Federal Register Volume 81, Number 2 (Tuesday, January 5, 2016)]
[Rules and Regulations]
[Pages 150-173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-33096]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 679
[Docket No. 140304192-5999-02]
RIN 0648-BE05
Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea
and Aleutian Islands Management Area; New Cost Recovery Fee Programs
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS publishes regulations to implement cost recovery fee
programs for the Western Alaska Community Development Quota (CDQ)
Program for groundfish and halibut, and three limited access privilege
programs: The American Fisheries Act (AFA), Aleutian Islands Pollock,
and Amendment 80 Programs. The Magnuson-Stevens Fishery Conservation
and Management Act (Magnuson-Stevens Act) authorizes and requires the
collection of cost recovery fees for the CDQ Program and limited access
privilege programs. Cost recovery fees recover the actual costs
directly related to the management, data collection, and enforcement of
the programs. The Magnuson-Stevens Act mandates that cost recovery fees
not exceed 3 percent of the annual ex-vessel value of fish harvested by
a program subject to a cost recovery fee. This action is intended to
promote the goals and objectives of the Magnuson-Stevens Act, the
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian
Islands Management Area (FMP), and other applicable laws.
DATES: Effective February 4, 2016.
ADDRESSES: Electronic copies of the Regulatory Impact Review (the
Analysis) and the Categorical Exclusion prepared for this action may be
obtained from http://www.regulations.gov or from the NMFS Alaska Region
Web site at http://alaskafisheries.noaa.gov.
Written comments regarding the burden-hour estimates or other
aspects of the collection of information requirements contained in this
final rule may be submitted by mail to NMFS, Alaska Region, P.O. Box
21668, Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records Officer;
in person at NMFS, Alaska Region, 709 West 9th Street, Room 420A,
Juneau, AK; or by email to [email protected] or fax to (202)
395-5806.
FOR FURTHER INFORMATION CONTACT: Glenn Merrill, (907) 586-7228.
SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fisheries in the
Federal exclusive economic zone of the Bering Sea and Aleutian Islands
Management Area (BSAI) under the FMP. The North Pacific Fishery
Management Council (Council) prepared the FMP under the authority of
the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. Regulations governing
U.S. fisheries and implementing this FMP appear at 50 CFR parts 600 and
679.
The International Pacific Halibut Commission (IPHC) and NMFS manage
fishing for Pacific halibut through regulations established under the
authority of the Northern Pacific Halibut Act of 1982 (Halibut Act).
The IPHC promulgates regulations governing the halibut fishery under
the Convention between the United States and Canada for the
Preservation of the Halibut Fishery of the Northern Pacific Ocean and
Bering Sea (Convention). The IPHC's regulations are subject to approval
by the Secretary of State with the concurrence of the Secretary of
Commerce (Secretary). NMFS publishes the IPHC's regulations as annual
management measures pursuant to 50 CFR 300.62. The Halibut Act, at
sections 773c(a) and (b), provides the Secretary with general
responsibility to carry out the Convention and the Halibut Act.
Statutory Authority
The primary statutory authority for this action is section 304(d)
of the Magnuson-Stevens Act. Section 304(d)(2)(A) of the Magnuson-
Stevens Act specifies that the Secretary is authorized and shall
collect a fee to recover the actual costs directly related to the
management, data collection, and enforcement of any limited access
privilege (LAP) program and community development quota (CDQ) program
that
[[Page 151]]
allocates a percentage of the total allowable catch (TAC) of a fishery
to such program. Section 304(d)(2)(B) specifies that such fee shall not
exceed 3 percent of the ex-vessel value of fish harvested under any
such program.
Section 304(d)(2)(A)(i) of the Magnuson-Stevens Act authorizes and
requires the Secretary to collect fees to recover costs from any LAP
program. Section 3 of the Magnuson-Stevens Act defines a ``limited
access privilege'' as including ``an individual fishing quota.''
Section 3 of the Magnuson-Stevens Act defines ``individual fishing
quota'' as ``a Federal permit under a limited access system to harvest
a quantity of fish, expressed by a unit or units representing a
percentage of the total allowable catch of a fishery that may be
received or held for exclusive use by a person. Such term does not
include community development quotas as described in section 305(i).''
The Magnuson-Stevens Act and Federal regulations further define the
terms ``permit,'' ``limited access system,'' ``total allowable catch,''
and ``person.'' These terms will be discussed in detail below.
Section 304(d)(2)(A)(ii) of the Magnuson-Stevens Act authorizes and
requires the Secretary to collect fees to recover costs from the CDQ
Program for fisheries in which a percentage of the TAC of a fishery is
allocated to the CDQ Program. Section 305(i) of the Magnuson-Stevens
Act authorizes the CDQ Program and specifies the annual percentage of
the TAC allocated to the CDQ Program in each directed fishery of the
BSAI. Section 305(i) also specifies the method for further apportioning
the TAC allocated to the CDQ Program to specific entities, called CDQ
groups. NMFS previously implemented cost recovery fees for the amount
of BSAI crab fishery TACs allocated to the CDQ Program under
regulations implementing the Crab Rationalization Program (70 FR 10174,
March 2, 2005, see regulations at Sec. 680.44) under the authority of
section 304(d)(2) of the Magnuson-Stevens Act. This final rule
implements cost recovery fees under the authority of section 304(d)(2)
of the Magnuson-Stevens Act for BSAI groundfish and halibut TACs
allocated to the CDQ Program.
A more detailed description of the statutory authority can be found
in the preamble of the proposed rule (80 FR 936, January 7, 2015), as
well as in Section 1.1 of the Analysis prepared for this action.
Cost Recovery Fee Programs
Cost recovery is the process by which NMFS recovers the actual
costs associated with the management, data collection, and enforcement
(also referred to as program costs) of a LAP or CDQ program. NMFS
determines the costs based on the costs described in section 304(d) of
the Magnuson-Stevens Act, consistent with NOAA policy on cost recovery.
LAP and CDQ Program costs are recovered annually through a fee paid by
persons who hold a permit granting an exclusive harvesting privilege
for a portion of the TAC in a fishery subject to cost recovery.
The cost recovery fees assessed cannot exceed the statutory
limitation of 3 percent of the ex-vessel value of the fish subject to a
cost recovery fee as specified in section 304(d) of the Magnuson-
Stevens Act. Section 1.8 of the Analysis and the preamble to this
proposed rule (80 FR 936, January 7, 2015) contain additional
information on the costs that are subject to a cost recovery fee and
current NOAA policy on the collection of cost recovery fees.
With this final rule, NMFS is implementing cost recovery fee
programs for the AFA, Aleutian Islands Pollock, and Amendment 80 LAP
Programs, and the CDQ Program. An effective cost recovery fee program
requires calculating species ex-vessel values, using a standardized
methodology to assess Program costs, assigning the appropriate fee to
each person holding a permit, and ensuring that fees are submitted in
full and on time. Below is a summary of the primary components of each
cost recovery fee program (Tables 1 through 4). Each of these
components is discussed in detail in the preamble to the proposed rule
(80 FR 936, January 7, 2015), as well as the Analysis prepared for this
action.
Cost Recovery Fees
Each calendar year, NMFS will determine the cost recovery fee that
each Program must pay. The cost recovery fee for each Program will be
based on costs incurred during the previous Federal fiscal year (from
October 1 of the previous calendar year through September 30 of the
current calendar year), and the ex-vessel value of the fish that are
subject to a cost recovery fee during the current calendar year (from
January 1 through December 31). The incurred costs that can be
recovered under a cost recovery program are described in Section 1.8.3
of the Analysis and the preamble to the proposed rule.
NMFS will calculate cost recovery fees only for fish that are
landed and deducted from the TAC in the fisheries subject to cost
recovery under the action. NMFS will not calculate cost recovery fees
for any portion of a permit holder's exclusive harvest privilege that
was not landed and deducted from the TAC. The permit holder refers to
the person who holds the exclusive harvest privilege in the specific
fishery. These methods for assessing cost recovery fees on landed catch
and the designation of the permit holder are consistent with the cost
recovery fee programs already implemented and NOAA policy guidance.
NMFS will calculate the cost recovery fee as a percentage of the
ex-vessel value of allocated fish species harvested by the participants
in each program. The use of a standard ex-vessel price will provide a
consistent methodology to assess fees on all fishery participants and
reduce administrative costs that would be incurred by collecting ex-
vessel data from each fishery participant. The methods used to
determine a standard ex-vessel price vary depending on the specific
program subject to a cost recovery fee. NMFS will use existing data
sources to determine a standard ex-vessel price for pollock (the
Commercial Operators Annual Report), and halibut and sablefish (IFQ
Buyer Report). NMFS will require a new report from processors who
receive Pacific cod to determine a standard ex-vessel price for Pacific
cod (Pacific Cod Ex-vessel Volume and Value Report). NMFS will also
require a new report from Amendment 80 vessel operators to determine
standard ex-vessel prices from a range of other species subject to cost
recovery (First Wholesale Volume and Value Report). These two new
volume and value reports are due by November 10 of each year.
NMFS will determine a cost recovery fee percentage applicable to
the species subject to cost recovery for each LAP and the CDQ Program.
The cost recovery fee percentage is the percentage of the ex-vessel
value of species used to determine a cost recovery fee that must be
paid to NMFS. NMFS will publish the cost recovery fee percentage for
each program in a Federal Register notice each year by December 1. NMFS
will also send a fee liability notice to each designated representative
of the person liable for a cost recovery fee by December 1 of each
year. The cost recovery fee liability notice will include the total
estimated fees due to NMFS from the person liable for the fee for that
calendar year. The cost recovery fee will be due by December 31 of each
year.
For the first year of fee collection, NMFS will begin assessing
costs for these cost recovery programs starting on the effective date
of this final rule. The costs assessed under the first year of
[[Page 152]]
cost recovery fee program will be based on costs incurred by NMFS from
the final rule effective date through September 30, 2016. NMFS will
base the ex-vessel value of the fish used to determine the cost
recovery fee on actual and estimated harvests from January 1, 2016,
through December 31, 2016. NMFS will publish the cost recovery fee
percentage for each Program in a Federal Register notice by December 1,
2016. NMFS will send each designated representative a fee liability
notice by December 1, 2016. The cost recovery fee will be due on
December 31, 2016.
Additional detail on how NMFS will calculate ex-vessel values, cost
recovery fees, and the fee schedule is provided in Sections 1.7 and
1.10 of the Analysis and the preamble to the proposed rule (80 FR 936,
January 7, 2015) and is not repeated here.
AFA Cost Recovery Fee Program
The Bering Sea pollock fishery is managed under the American
Fisheries Act (AFA) (16 U.S.C. 1851 note) and the Magnuson-Stevens Act.
The AFA limits entry by vessels and processors into all sectors of the
pollock fishery by identifying the vessels and processors eligible to
participate in the fishery and allocating pollock among those eligible
participants. The AFA defines the various sectors of the Bering Sea
pollock fishery, determines what vessels and processors are eligible to
participate in each sector, establishes allocations of Bering Sea
pollock total TAC to each sector as directed fishing allowances, and
establishes excessive share limits for harvesting pollock. The
provisions of the AFA were incorporated into the FMP and its
implementing regulations under authority of the Magnuson-Stevens Act.
The AFA cost recovery fee program will apply to participants in the AFA
pollock fishery.
As required by section 206(b) of the AFA, NMFS allocates a
specified percentage of the Bering Sea directed pollock fishery TAC to
each of the three AFA fishery sectors: (1) 50 percent to catcher
vessels delivering to inshore processors, called the ``inshore
sector''; (2) 40 percent to catcher/processors and catcher vessels
delivering to those catcher/processors, called the ``catcher/processor
sector''; and (3) 10 percent to catcher vessels harvesting pollock for
processing by motherships, called the ``mothership sector.''
Section 208 of the AFA specifies the vessels and processors that
are eligible to participate in the inshore sector, the catcher/
processor sector, and the mothership sector. Section 210 of the AFA
authorizes the formation of fishery cooperatives in all sectors of the
Bering Sea pollock fishery and provides flexibility to the Council and
NMFS to govern the formation and operation of fishery cooperatives.
Under section 210(b), the AFA establishes additional qualifying
criteria and operational restrictions on the formation and operation of
cooperatives for the inshore sector. The AFA establishes a specific
formula for making allocations of pollock to qualified inshore
cooperatives. A catcher vessel with an AFA inshore endorsement may join
an AFA inshore cooperative associated with an AFA inshore processor
(AFA section 210(b); 50 CFR 679.4(l)(6)). For 2015, seven inshore
cooperatives were formed by AFA eligible inshore catcher vessels and
their partner inshore processors (http://alaskafisheries.noaa.gov/sustainablefisheries/afa/15bsaicoopallocations.pdf). Each inshore
cooperative will be responsible for the payment of that cooperative's
fee.
The catcher/processor sector has formed two cooperatives for
managing the exclusive harvest allocation mandated for the catcher/
processor sector under section 206(b) of the AFA--one cooperative for
the catcher/processors and one cooperative for the catcher vessels
harvesting pollock for processing by catcher/processors. These two
cooperatives are associated through a joint agreement called the
``Cooperative Agreement between Offshore Pollock Catchers' Cooperative
and Pollock Conservation Cooperative'' to facilitate efficient harvest
management and accurate harvest accounting between the participants in
the catcher/processor sector. These two cooperatives jointly submit an
annual cooperative report to the Council (see Cooperative Reports, NMFS
Alaska Region Web site, http://alaskafisheries.noaa.gov/sustainablefisheries/afa/afa_sf.htm). The catcher/processor sector also
formed one entity to represent the catcher/processor sector for the
purposes of receiving and managing their transferable Chinook salmon
prohibited species catch (PSC) allocation under a program to minimize
Chinook salmon bycatch in the pollock fishery (see the final rule
implementing Amendment 91 to the FMP, 75 FR 53026, August 30, 2010).
This entity will be responsible for submitting the payment of the AFA
catcher/processor fee under this rule.
All participants that harvest pollock allocated to the catcher/
processor sector are members of the two cooperatives, except for one
participant. Section 208(e)(21) of the AFA expressly limits the amount
of harvest by the one participant in the catcher/processor sector who
is not a member of a cooperative to 0.5 percent of the TAC apportioned
to the catcher/processor sector, thereby providing an exclusive harvest
privilege to all catcher/processor cooperative members. The participant
that is not a member of a cooperative will not be subject to a cost
recovery fee for its harvest of Bering Sea pollock under this rule
because that vessel is not given an explicit allocation of pollock and
is already subject to cost recovery fees under the Amendment 80
Program. Section 1.5.3 of the Analysis provides additional detail on
allocations to the AFA catcher/processor sector.
The owners of all 19 catcher vessels eligible to deliver to a
mothership in the Bering Sea pollock fishery have joined a single
cooperative under section 208(c) of the AFA to coordinate harvests, the
AFA Mothership Fleet Cooperative. This cooperative harvests the
exclusive pollock allocation mandated for the mothership sector under
section 206(b) of the AFA. The AFA Mothership Fleet Cooperative will be
responsible for the payment of the AFA mothership cooperative fee.
NMFS recognizes that each AFA sector has slightly different
management costs. This final rule establishes that NMFS will calculate
fee percentage and fee liability separately for the catcher/processor
sector, mothership sector, and inshore sector. NMFS estimates that
annual fee liabilities for each sector will range from 0.23 percent to
0.72 percent of the ex-vessel value of Bering Sea pollock.
Table 1--Summary of the AFA Cost Recovery Fee Program Elements
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What species are subject to a cost Bering Sea pollock.
recovery fee?
How is the standard price NMFS will calculate a standard price
determined? based on data from the Commercial
Operators Annual Report (COAR) from
the previous calendar year.
[[Page 153]]
Are there any additional reporting No.
requirements for AFA cooperatives
to determine the standard price?
How will NMFS determine the NMFS will add total reported
Standard Ex-vessel Value? landings of Bering Sea pollock from
January 1 through November 30, and
estimate total landings in each
year (beginning in 2016) from
December 1 through December 31, if
any, for each AFA cooperative or
sector and multiply that amount by
the standard price determined by
COAR data to calculate a standard
ex-vessel value for each AFA
cooperative or sector.
Who is responsible for submission AFA Catcher/Processor Sector (1):
of the fee payment and (how many The designated entity
cooperatives are estimated to representative for the catcher/
receive a fee liability notice)? processor sector under Sec.
679.21(f)(8)(i)(C).
AFA Mothership Sector (1): The
designated representative for the
AFA Mothership Fleet Cooperative.
AFA Inshore Sector (7): The
designated representative on each
AFA Inshore Catcher Vessel
Cooperative Permit application.
When are the standard prices The standard prices are published in
published in the Federal Register the Federal Register by December 1
and when are the fee liability of each calendar year, and the fee
notices sent? liability notices will be sent to
each designated representative by
December 1 of each year (beginning
December 1, 2016).
When are fee payments due and how Fee payments are due by December 31
are they submitted? of each year (beginning December
31, 2016), and must be submitted
online. Submittal forms are
available online at: http://www.alaskafisheries.noaa.gov.
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Aleutian Islands Pollock Cost Recovery Fee Program
This cost recovery fee program will apply to participants in the
Aleutian Islands pollock fishery. The Aleutian Islands Pollock Program
allocates the Aleutian Islands directed pollock fishery TAC to the
Aleut Corporation, consistent with the Consolidated Appropriations Act
of 2004 (Pub. L. 108-109), and its implementing regulations. Annually,
prior to the start of the pollock season, the Aleut Corporation
provides NMFS with the identity of their designated representative.
This person will be responsible for the submission of all cost recovery
fees. The Aleutian Islands pollock fishing regulations are at Sec.
679.20(a)(5)(iii).
Prior to 2015, Aleutian Islands pollock was not harvested due to
restrictions imposed by Steller sea lion protection measures.
Therefore, prior to 2015, NMFS reallocated the Aleutian Islands pollock
allocation to the AFA Program in the Bering Sea. Changes in Steller sea
lion protection measures effective in 2015 allow for a directed pollock
fishery to occur in the Aleutian Islands (79 FR 70286, November 25,
2014). However, NMFS does not know whether participants will be able to
successfully harvest the Aleutian Islands pollock because there has not
been an Aleutian Islands pollock fishery since 1999. NMFS will
reallocate any Aleutian Islands pollock not harvested in the Aleutian
Islands to the AFA Program in the Bering Sea. Any pollock that NMFS
reallocates from the Aleutian Islands Pollock Program to the AFA
Program will be subject to cost recovery fees under the provisions of
the AFA Program.
NMFS estimates that the cost recovery fee percentage applicable to
Aleutian Islands pollock will be the same percentage applicable to
Bering Sea pollock harvested by the AFA Program (Section 1.8.6.5 of the
Analysis). Based on the information in the Analysis, NMFS assumes that
the Aleutian Islands Pollock and the AFA Programs have similar
management costs and ex-vessel values. NMFS will assess and determine a
fee percentage specifically for Aleutian Islands pollock if management
requirements differ between the Aleutian Islands Pollock Program and
the AFA Program. Estimates of recoverable costs will be determined once
additional information on the management costs for the Aleutian Islands
pollock fishery is available.
Table 2--Summary of the Aleutian Islands Pollock Cost Recovery Fee
Program Elements
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What species are subject to a cost Aleutian Islands pollock.
recovery fee?
How is the standard price NMFS will calculate a standard price
determined? based on data from the COAR from
the previous calendar year. The
standard price will be applied to
all landings during a calendar
year.
Are there any additional reporting No.
requirements for the Aleut
Corporation to determine the
standard price?
How will NMFS determine the NMFS will add total reported
Standard Ex-vessel Value? landings of Aleutian Islands
pollock from January 1 through
November 30, and estimate total
landings in each year (beginning in
2016) from December 1 through
December 31, if any, and multiply
that amount by the standard price
determined by COAR data to
calculate a standard ex-vessel
value for the Aleut Corporation.
Who is responsible for fee payment Aleut Corporation (1).
and (how many cooperatives are
estimated to receive a fee
liability notice)?
When are the standard prices The standard prices are published in
published in the Federal Register the Federal Register by December 1
and when are fee liability of each calendar year, and the fee
notices sent? liability notices will be sent to
each designated representative by
December 1 of each year (beginning
December 1, 2016).
When are fee payments due and how Fee payments are due by December 31
are they submitted? of each year (beginning December
31, 2016), and must be submitted
online. Submittal forms are
available online at: http://www.alaskafisheries.noaa.gov.
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[[Page 154]]
Amendment 80 Cost Recovery Fee Program
This cost recovery fee program will apply to participants in the
Amendment 80 fisheries. The Amendment 80 Program allocates groundfish
fisheries TAC, other than Bering Sea pollock, to identified trawl
catcher/processors in the BSAI. The Amendment 80 Program allocates a
portion of the BSAI TACs of six species: Atka mackerel, Pacific cod,
flathead sole, rock sole, yellowfin sole, and Aleutian Islands Pacific
ocean perch. Amendment 80 vessel owners can harvest these species in
cooperatives that receive an exclusive harvest privilege, or in an
``open access'' fishery that will not be subject to a cost recovery fee
requirement.
All 27 vessels currently participating in the Amendment 80 Program
and their vessel owners are members of cooperatives and are subject to
a cost recovery fee. Each Amendment 80 cooperative is responsible for
payment of any cost recovery fee, and each Amendment 80 cooperative
will designate a person responsible for submitting its fee and provide
NMFS with the identity of that person. NMFS estimates that annual fee
liabilities for Amendment 80 cooperatives will range from 1.22 to 1.77
percent of the ex-vessel value of allocated species (Section 1.8.4.6 of
the Analysis).
Table 3--Summary of the Amendment 80 Cost Recovery Fee Program Elements
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What species are subject to a cost Amendment 80 species: BSAI Atka
recovery fee? mackerel, BSAI flathead sole, BSAI
Pacific cod, Aleutian Islands
Pacific ocean perch, BSAI rock
sole, and BSAI yellowfin sole.
How is the standard price NMFS will calculate a standard price
determined? for BSAI Pacific cod based on data
from the Pacific Cod Ex-vessel
Volume and Value Report. The
standard price will be applied to
all landings during a calendar
year.
NMFS will calculate a standard price
for all other species other than
Pacific cod from the First
Wholesale Volume and Value Report.
The standard price will be applied
to all landings during a calendar
year, except for BSAI rock sole.
For BSAI rock sole, NMFS will
calculate one standard price for
landings made from January 1
through March 31, and a separate
standard price for landings made
from April 1 through December 31 of
each year.
Are there any additional reporting Yes. Each Amendment 80 vessel owner
requirements to determine the that lands Amendment 80 species
standard price? during a calendar year is required
to submit a First Wholesale Volume
and Value Report.
How will NMFS determine the NMFS will add total reported
Standard Ex-vessel Value? landings of Amendment 80 species
from January 1 through November 30,
and estimate total landings in each
year (beginning in 2016) from
December 1 through December 31, if
any, and multiply that amount by
the standard price determined by
the applicable volume and value
report to calculate a standard ex-
vessel value for each Amendment 80
cooperative.
Who is responsible for fee payment Each Amendment 80 cooperative's
and (how many cooperatives are designated representative listed on
estimated to receive a fee the Cooperative Quota (CQ)
liability notice)? application (2).
When are the standard prices The standard prices are published in
published in the Federal the Federal Register by December 1
Register, and when are fee of each calendar year, and the fee
liability notices sent? liability notices will be sent to
each designated representative by
December 1 of each year (beginning
December 1, 2016).
When are fee payments due and how Fee payments are due by December 31
are they submitted? of each year (beginning December 31
2016), and must be submitted
online. Submittal forms are
available online at: http://www.alaskafisheries.noaa.gov.
------------------------------------------------------------------------
CDQ Cost Recovery Fee Program
This cost recovery fee program will apply to CDQ groups. The CDQ
Program was implemented in 1992 to provide access to BSAI fishery
resources to villages located in Western Alaska. Since the
implementation of the CDQ Program, Congress has amended the Magnuson-
Stevens Act to define specific provisions of the CDQ Program. Section
305(i) of the Magnuson-Stevens Act identifies 65 villages eligible to
participate in the CDQ Program and the six CDQ groups to represent
these villages. CDQ groups receive exclusive harvesting privileges of
the TACs for a broad range of crab species, groundfish species, and
halibut. This final rule establishes a cost recovery fee program only
for groundfish and halibut because CDQ crab cost recovery fees are
already collected under existing regulations. Each CDQ group will be
subject to cost recovery fee requirements, and the designated
representative of each CDQ group will be responsible for submitting
payment for its CDQ group. This is consistent with the method NMFS uses
to collect fees for the crab CDQ cost recovery program. NMFS estimates
that annual fee liabilities for a CDQ group will range from 0.73 to
1.33 percent of the harvested ex-vessel value of CDQ groundfish and
halibut.
Table 4--Summary of the CDQ Cost Recovery Fee Program Elements
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------------------------------------------------------------------------
What species are subject to a cost BSAI halibut and groundfish species
recovery fee? allocated to the CDQ Program: BSAI
Arrowtooth Flounder, BSAI Atka
mackerel, BSAI flathead sole,
Bering Sea Greenland turbot, BSAI
Pacific cod, Aleutian Islands
Pacific ocean perch, BSAI pollock,
BSAI rock sole, BSAI sablefish, and
BSAI yellowfin sole.
How is the standard price NMFS will calculate a standard price
determined? for BSAI Pacific cod based on data
from the Pacific Cod Ex-vessel
Volume and Value Report. The
standard price will be applied to
all landings during a calendar
year.
NMFS will calculate a standard price
for all other species other than
BSAI pollock, BSAI Pacific cod,
BSAI sablefish, and BSAI halibut
from the First Wholesale Volume and
Value Report. The standard price
will be applied to all landings
during a calendar year, except for
BSAI rock sole. For BSAI rock sole,
NMFS will calculate one standard
price for landings made from
January 1 through March 31, and a
separate standard price for
landings made from April 1 through
December 31 of each year.
NMFS will calculate a standard price
for BSAI pollock based on data from
the COAR from the previous calendar
year. The standard price will be
applied to all landings during a
calendar year.
NMFS will calculate a standard price
for BSAI sablefish and BSAI halibut
from the IFQ Buyer Report. The
standard price will be applied to
all landings during a calendar
year.
[[Page 155]]
Are there any additional reporting No.
requirements from CDQ groups to
determine the standard price?
How will NMFS determine the NMFS will add total reported
Standard Ex-vessel Value? landings of species subject to a
CDQ cost recovery fee from January
1 through November 30, and estimate
total landings in each year
(beginning in 2016) from December 1
through December 31, if any, and
multiply that amount by the
standard price determined by the
volume and value report, COAR
Report, or IFQ Buyer Report
applicable to that species to
calculate a standard ex-vessel
value for each CDQ group.
Who is responsible for fee payment Each CDQ group's designated
and (how many cooperatives are representative (6).
estimated to receive a fee
liability notice)?
When are the standard prices The standard prices are published in
published in the Federal Register the Federal Register by December 1
and when are the fee liability of each calendar year, and the fee
notices sent? liability notices will be sent to
each designated representative by
December 1 of each year (beginning
December 1, 2016).
When are fee payments due and how Fee payments are due by December 31
are they submitted? of each year (beginning December
31, 2016), and must be submitted
online. Submittal forms are
available online at: http://www.alaskafisheries.noaa.gov.
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Response to Comments
NMFS published a proposed rule that describes in detail the
statutory authority to implement cost recovery fee programs, the
Programs affected by the implementation of a cost recovery fee program,
and how NMFS will implement the new cost recovery fee programs, in the
Federal Register on January 7, 2015 (80 FR 936). The 30-day comment
period on the proposed rule ended February 6, 2015. NMFS received a
total of three comment letters from three unique persons representing
participants in programs that are subject to cost recovery under this
final rule. The comment letters contained 24 substantive comments. A
summary of the comments received and NMFS' responses follow.
Comments on NMFS' Costs Subject to Recovery
Comment 1: NMFS received several comments regarding the process for
calculating costs subject to cost recovery. The issues raised in the
comments include the following:
Base fee liabilities on the incremental costs associated
with management and enforcement of the specific LAP or CDQ Program.
Do not assess costs attributed to the general management
of the fisheries that cannot be directly attributed to the specific LAP
or CDQ Program.
Appropriately apportion costs among LAP and CDQ programs
to ensure that costs applicable to one program are not attributed to
another program.
Do not include costs associated with deploying and
debriefing observers in the cost recovery fee calculations since
observer deployment and debriefing would have been implemented without
the implementation of the LAP or CDQ programs.
Provide detailed cost breakouts for each LAP and CDQ
Program.
Response: Section 304(d)(2)(A) of the Magnuson-Stevens Act states
that the Secretary is authorized and shall collect a fee to recover the
actual costs directly related to the management, data collection, and
enforcement of any limited access privilege program and community
development quota program that allocates a percentage of the total
allowable catch of a fishery to such program.
As stated in the preamble to the proposed rule, NMFS intends to
employ the same accounting methods for the cost recovery fee programs
established by this rule as NMFS has consistently used in cost recovery
fee programs in the Alaska Region (Halibut and Sablefish Individual
Fishing Quota (IFQ) Program, Crab Rationalization Program, and the
Central Gulf of Alaska Rockfish Program). This methodology to assess
cost recovery fees is consistent with the Magnuson-Stevens Act and
current NOAA policy (NOAA Technical Memorandum NMFS-F/SPO-86, November
2007). The costs described in Section 1.8.3 of the Analysis and the
preamble to the proposed rule provide the best available description of
the costs subject to cost recovery for each LAP program and the CDQ
Program. As explained in in Section 1.8.3 of the Analysis, NMFS will
only assess costs that can be directly attributed to the specific LAP
or CDQ Program.
NMFS agrees that costs should be accurately attributed to each CDQ
and LAP program. As noted in the preamble to the proposed rule, NMFS
will capture the incremental costs of managing the fisheries of each
CDQ or LAP program through an established accounting system that allows
NMFS to track labor, travel, and procurement specific to that program.
This process is described in Section 1.8.3 of the Analysis. This
accounting system will allow NMFS to properly apportion costs among the
CDQ and LAP programs.
NMFS agrees that certain categories of observer costs should not be
included in the fee calculation. For example, many catcher/processors
operating in the directed pollock and non-pollock fisheries in the BSAI
were required to carry an observer prior to the implementation of the
AFA or the Amendment 80 Programs. Costs associated with the debriefing
and training of one observer will not be assessed or included in the
fee calculation. However, NMFS required additional observer coverage
for implementation of the AFA and the Amendment 80 Programs (Section
1.8 of the Analysis). These LAP programs required the deployment of two
observers on board each AFA catcher/processor or Amendment 80 vessel.
NMFS will assess fees for costs necessary to debrief and train the
second observer because those costs are incurred as a direct result of
the implementation of those LAP programs.
NMFS agrees that information on the costs used to determine the fee
should be disclosed annually. NMFS will make publically available an
annual report that provides information on how the cost recovery fee
was estimated for that year. This report will be structured like the
cost recovery fee reports that are currently generated for the Halibut
and Sablefish IFQ Program and Crab Rationalization Program. An example
of the Halibut and Sablefish Cost Recovery Fee report for 2013 is
available at https://alaskafisheries.noaa.gov/ram/fees/feerpt2013.pdf.
Comment 2: The cost recovery regulations should be revised to more
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clearly incorporate the Magnuson-Stevens Act's limitations on costs
that may be recovered. To focus on truly recoverable costs, revise the
regulations to incorporate the definition of ``direct program costs''
provided under the cost recovery rule established for certain Pacific
Coast groundfish fisheries (78 FR 75269, December 11, 2013).
Response: This final rule already incorporates the section
304(d)(2)(B) Magnuson-Stevens Act limitation on the costs that may be
recovered and clearly states that the fee percentage amount must not
exceed 3 percent of the ex-vessel value of the species harvested under
the Program. In this final rule at Sec. 679.2, the definition of the
fee percentage for each program limits the fee percentage to no greater
than 3 percent. Additionally, the cost recovery regulations specific to
each program state that the fee amounts must not exceed 3 percent, see
this final rule at Sec. Sec. 679.33(c)(1), 679.66(c)(1), 679.67(c)(1),
and 679.95(c)(1).
NMFS' recoverable costs are limited by the Magnuson-Stevens Act.
Section 304(d) of the Magnuson-Stevens Act states that the recoverable
costs must be the actual costs directly related to the management, data
collection, and enforcement of the CDQ or LAP programs. NMFS will use
the accounting methods that have been developed for all other cost
recovery programs in the North Pacific to determine the ``direct
program costs'' that are recoverable, as described in the preamble to
the proposed rule. NMFS made no changes to this final rule at
Sec. Sec. 679.33(c)(2)(ii), 679.66(c)(2)(ii), 679.67(c)(2)(ii), or
679.95(c)(2)(ii) because the direct program cost language is consistent
with the Magnuson-Stevens Act, regulations implementing the other North
Pacific cost recovery fee programs, and NOAA policy.
Comment 3: Explain the cause of the rapid increase in the Gulf of
Alaska Rockfish Program cost recovery fee to 3 percent of its ex-vessel
value. Ensure that a similar rapid and unanticipated increase in the
fee percentage will not happen to the cost recovery fees for these CDQ
and LAP programs.
Response: The preamble to the final rule that implemented the Gulf
of Alaska Rockfish Program (Amendment 88 to the Fishery Management Plan
for Groundfish of the Gulf of Alaska) stated that, given the relatively
small value of the Rockfish Program relative to anticipated
administrative costs, cost would likely exceed 3 percent of the ex-
vessel value of the Rockfish Program, therefore, it would be likely
that the costs recovery fee for the Rockfish Program would be 3
percent, the statutory limit established by the Magnuson-Stevens Act
(76 FR 81263, December 27, 2011). Cost recovery fee percentages in the
Rockfish Program have ranged from 1.4 percent in 2012 (the year the
Rockfish Program cost recovery fee was implemented), to 3 percent in
2015 (the most recent year for which a cost recovery fee was assessed).
NMFS attributes the increase in the fee percentage in 2015 primarily to
a decrease in the ex-vessel value of rockfish, and to a lesser extent,
an increase in NMFS' management and enforcement costs (80 FR 6053,
February 4, 2015).
As stated in Section 1.8.4.6 (Amendment 80), Section 1.8.6.5 (AFA/
Aleutian Islands pollock), and Section 1.8.5.5 (CDQ) of the Analysis,
NMFS does not anticipate that the factors that led to the increase in
the Rockfish Program cost recovery fee percentage are likely to exist
in the CDQ and LAP programs subject to cost recovery under this rule.
The referenced sections of the Analysis show that the CDQ and LAP
Program fisheries have substantially higher ex-vessel values than the
ex-vessel value of the Rockfish Program fishery. The Rockfish Program
fishery ex-vessel value fell from about $14.3 million in 2012 to about
$6.3 million in 2014. Section 1.8.4.6 (Amendment 80), Section 1.8.6.5
(AFA/Aleutian Islands pollock), and Section 1.8.5.5 (CDQ) of the
Analysis state that NMFS does not expect future ex-vessel values or
anticipated costs subject to cost recovery to change in a way that
would result in a 3 percent cost recovery fee for these Programs.
Section 1.8.1 of the Analysis states that the Crab Rationalization
Program has not experienced an increase in its fee percentage, but the
Halibut and Sablefish IFQ Program has had an increase in its fee
percentage over time. In the Crab Rationalization Program, the fee
percentage declined over time due to a variety of factors, including
(1) increasing TACs for various crab species, (2) increasing ex-vessel
prices for various crab species, and (3) decreasing management costs.
In the Halibut and Sablefish IFQ Program, the fee percentage has
increased due to costs remaining fairly constant and ex-vessel value
decreasing due to reduced harvests that have not been off-set by
increases in ex-vessel prices.
Comments on the CDQ Cost Recovery Fee Program
Comment 4: NMFS' definition of a ``person'' as each CDQ group that
is issued an annual CDQ allocation is consistent with the way that each
CDQ group manages its allocations individually for all other purposes.
Response: NMFS agrees. Regulations at Sec. 679.2 define a CDQ
group as ``an entity identified as eligible for the CDQ Program under
16 U.S.C. 1855(i)(1)(D).'' The six eligible CDQ groups are listed in
Table 7 to 50 CFR part 679. Each CDQ group is responsible for a fee
payment, and each CDQ group must designate a representative who is
responsible for submitting a fee payment for that CDQ group (see
regulations at Sec. 679.33(a)).
Comments on the AFA Cost Recovery Fee Program
Comment 5: The Bering Sea pollock directed fishing allowance does
not meet the Magnuson-Stevens Act's definition of individual fishing
quota because it is not a permit. The directed fishing allowance does
not allow any person ``to harvest a quantity of fish'' for that
person's ``exclusive use.'' The directed fishing allowance is the
amount of fish available to be harvested with a permit and therefore is
a management restriction on a group of vessels rather than a permit.
That is exactly how NMFS' regulation at Sec. 679.20(a) describes the
pollock directed fishing allowance.
Response: Section 3 of the Magnuson-Stevens Act defines an
individual fishing quota as ``a Federal permit under a limited access
system to harvest a quantity of fish, expressed by a unit or units
representing a percentage of the total allowable catch of a fishery
that may be received or held for exclusive use by a person.'' According
to Sec. 679.2, a permit means documentation granting permission to
fish.
The harvest specifications, with the AFA directed fishing allowance
entitling the catcher/processor sector to harvest a quantity of fish
for its exclusive use, is the individual fishing quota and
documentation granting permission to fish. NMFS publishes harvest
specifications each year in the Federal Register that allocate a
specific percentage of the pollock TAC to the AFA sectors, called the
directed fishing allowance, for exclusive use by eligible AFA permit
holders (see the most recent example at Table 4, 80 FR 11919, March 5,
2015; corrected 80 FR 13787, March 17, 2015). The harvest
specifications with the directed fishing allowance is a permit that
authorizes the AFA sectors to harvest a portion of the pollock TAC each
year.
Federal regulations at Sec. 679.20(a)(5)(i)(A)(4) specify that the
catcher/processor sector allocation is 40 percent of the directed
fishing allowance that is allocated to AFA catcher/processors and AFA
catcher
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vessels that deliver to catcher/processors. The AFA catcher/processor
sector has exclusive use of its directed fishing allowance because the
catcher/processors that are eligible to participate are specified in
the AFA, FMP, and associated regulations. The exclusive quantity of
fish allocated to the AFA catcher processor sector is then harvested by
those specified in the FMP and regulations according to contractual
arrangement among the members of that sector.
Comment 6: The Cooperative Agreement between Offshore Pollock
Catchers' Cooperative and Pollock Conservation Cooperative (Cooperative
Agreement) does not constitute a ``person.''
Response: Based on this public comment, NMFS realizes that the
proposed rule was not sufficiently specific in explaining who the
person is that receives the individual fishing quota and is therefore
responsible for the cost recovery fee for the AFA catcher/processor
sector.
Regulations at Sec. 679.2 define a person as ``any individual
(whether or not a citizen or national of the United States), any
corporation, partnership, association, or other non-individual entity
(whether or not organized, or existing under the laws of any state),
and any Federal, state, local, or foreign government or any entity of
any such aforementioned governments.'' A similar definition of a
``person'' is in section 3 of the Magnuson-Stevens Act.
As explained in response to Comment 5, the directed fishing
allowance is an individual fishing quota. NMFS allocates the directed
fishing allowance to the AFA catcher/processor sector. NMFS considers
the AFA catcher/processor sector an entity and therefore a person under
the Magnuson-Stevens Act. The AFA catcher/processor sector also (1)
shares common ownership of vessels, (2) enters into contracts that
allow the catcher/processors to harvest the catcher vessel allocation,
(3) participates in incentive plan agreements to avoid Chinook salmon,
and (4) submits one salmon avoidance report and one annual cooperative
report for the AFA catcher/processor sector each year. The contracts
establishing these relationships among members describe and provide for
allocations of pollock and salmon to specific vessel owners and
operators. Section 1.6.3.3 of the Analysis describes the harvest of
catch in the AFA catcher/processor sector in greater detail, and the
ability of the AFA catcher/processor sector members to precisely
harvest the sector's exclusive pollock allocation.
Under Amendment 91 to the FMP, members of the AFA catcher/processor
sector also formed one entity to represent the AFA catcher/processor
sector for the purposes of receiving and managing their transferable
Chinook salmon PSC allocation under the regulations at Sec.
679.21(f)(8)(i)(C). The members of the AFA catcher/processor sector
created a contract that, among other things, lists the vessel owners
represented by the entity, and submitted an application to NMFS under
Sec. 679.21(f)(8)(ii). NMFS has approved the application for the
entity representing the AFA catcher/processor sector. The contract also
designates an entity representative and an agent for service of
process. Currently, all eligible members of the AFA catcher/processor
sector are represented by the entity. Entity participants cannot change
during a fishing year. To make additions or deletions to the vessel
owners represented by the entity for the next year, the entity
representative must submit a complete application, as described in
Sec. 679.21(f)(8)(ii)(F), by December 1.
NMFS has modified this final rule to clarify that the entity
representative under Sec. 679.21(f)(8) will be the designated
representative responsible for submitting the cost recovery fee payment
for the AFA catcher/processor sector. See Changes from the Proposed
Rule, below, for a complete description of the changes NMFS made to
this final rule in response to comments on the AFA catcher/process
sector.
Comment 7: The pollock directed fishing allowance is allocated to
AFA catcher/processor vessels rather than to the Cooperative Agreement.
Even if the pollock directed fishing allowance qualifies as a
``permit'' and the catcher/processor sector's Cooperative Agreement
constitutes a ``person,'' the asserted permit is not held by the
alleged person.
Response: Each year, NMFS allocates the pollock directed fishing
allowance to the AFA catcher/processor sector under Federal regulations
Sec. 679.20(a)(5)(i)(A)(4), as required by section 206(b)(2) of the
AFA. Each year, NMFS also allocates Chinook salmon PSC to the AFA
catcher/processor sector under Amendment 91 to the FMP and Sec.
679.21(f). Once the catcher/processor sector receives the sector's
pollock directed fishing allowance for exclusive harvest and the
sector's Chinook salmon PSC allocation, the AFA catcher/processor
sector members divide these allocations among themselves.
As explained in the response to Comment 5, the annual harvest
specifications with the directed fishing allowance is an IFQ to the AFA
catcher/processor sector. As explained in the response to Comment 6,
the ``person'' who receives the exclusive harvest privilege for the
purposes of cost recovery is the catcher/processor sector that is
eligible to harvest pollock from that sector's directed fishing
allowance defined in section 206(b)(2) of the AFA.
Comment 8: The Bering Sea pollock directed fishing allowance
provided to the AFA sectors was not created under a limited access
system and could not have been created under such a system because it
went into effect during the moratorium on individual fishing quotas.
Response: In 2007, Congress adopted the Magnuson-Stevens Fishery
Conservation and Management Reauthorization Act (MSRA, Pub. L. 109-479)
to amend the Magnuson-Stevens Act. In the MSRA, Congress amended the
Magnuson-Stevens Act to include language applicable to limited access
systems and limited access programs.
In section 3(27) of the Magnuson-Stevens Act, Congress defined
``limited access system'' as ``a system that limits participation in a
fishery to those satisfying certain eligibility criteria or
requirements contained in a fishery management plan or associated
regulation.'' Although the AFA was adopted and implemented through the
FMP before 2007, the AFA Program meets this definition of a limited
access system. The AFA Program is a system that limits participation in
the Bering Sea pollock fishery to those satisfying certain eligibility
criteria or requirements contained in a fishery management plan or
associated regulations. The AFA specified sector allocations and
eligibility criteria for vessels to harvest pollock in each of the
specified sectors (section 206 and section 208 of the AFA, 16 U.S.C.
1851 statutory note). The eligibility criteria and requirements in the
AFA were incorporated into the FMP, the Fishery Management Plan for
Groundfish of the Gulf of Alaska, the Fishery Management Plan for
Bering Sea and Aleutian Islands King and Tanner Crab, and the Fishery
Management Plan for the Scallop Fishery Off Alaska (Amendments 61/61/
13/8, respectively). NMFS manages the AFA Program through the FMPs and
their implementing regulations (67 FR 79692, December 30, 2002).
NMFS is implementing the cost recovery program for the AFA under
authority of section 304(d) of the Magnuson-Stevens Act. Section
304(d)(2)(A) of the Magnuson-Stevens Act, which was adopted as part of
the MSRA, authorizes and requires the
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Secretary to collect a cost recovery fee for limited access privilege
programs. In section 3(26) of Magnuson-Stevens Act, Congress defined
the term ``limited access privilege'' and specifically included
``individual fishing quota.''
The AFA Program is a limited access privilege program because (1)
NMFS issues a permit as part of a limited access system established by
the AFA Program, (2) this permit allows the harvest of a quantity of
pollock representing a portion of the TAC managed under the AFA
Program, and (3) this permit is issued for exclusive use by a person,
the AFA catcher/processor sector. Therefore, NMFS is implementing cost
recovery fees for the AFA catcher/processor sector as authorized and
required in section 304(d)(2) of the Magnuson-Stevens Act.
Further, the AFA does not prohibit the Secretary from imposing cost
recovery requirements on participants in the AFA catcher/processor
sector. Section 213(b) of the AFA states that, except for the measures
required by this subtitle [subtitle II, Bering Sea Pollock Fishery],
nothing in the subtitle shall be construed to limit the authority of
the Council or the Secretary under the Magnuson-Stevens Act to approve
conservation and management measures as part of a fishery management
plan and to give effect to measures in those plans. Therefore, NMFS may
implement the requirements of section 304(d) of the Magnuson-Stevens
Act and establish a cost recovery program for participants in the AFA
Program, including the AFA catcher/processor sector.
As for the moratorium on IFQ programs, section 303(d)(1)(A) of the
1996 Magnuson-Stevens Act (Section 108(e) of the Sustainable Fisheries
Act, Pub. L. 104-297) prohibited the Council from submitting and the
Secretary from approving or implementing before October 1, 2000, any
plan amendment or regulations that created a new individual fishing
quota program. On December 21, 2000, Congress extended the moratorium
until October 1, 2002, in the Consolidated Appropriations Act of 2001
(Section 144(a), Pub. L. 106-554). The moratorium ended on October 1,
2002, and was not extended again by Congress.
During the moratorium on IFQ Programs, on October 21, 1998,
Congress adopted the AFA and explicitly directed the Council and NMFS
to implement, by January 1, 1999, the provisions of the AFA allocating
a portion of the TAC of BSAI pollock to the catcher/processor sector
(Section 206 of the AFA, Pub. L. 105-277, 16 USCA 1851 note). In the
Consolidated Appropriations Act of 2001, the same Act where Congress
extended the moratorium on IFQ programs, Congress also mandated that
all BSAI groundfish management measures, which included the AFA
management measures, in effect as of July 15, 2000, be extended through
the end of 2001 (Section 209(c)(3), Pub. L. 106-554). On November 28,
2001, Congress made key provisions of the AFA permanent, including the
pollock allocation to the catcher/processor sector, in section 211 of
the Department of Commerce and Related Agencies Appropriation Act of
2002 (Pub. L. 107-77).
While the permanent AFA management program was under analysis and
development, NMFS met the statutory deadlines in the AFA on an interim
basis through several emergency interim rules starting in January 1999
(64 FR 3435, January 22, 1999) that were extended through the end of
2002 (67 FR 34860, May 16, 2002). The Secretary approved the FMP
amendments implementing the AFA on February 27, 2002, and NMFS
published final implementing regulations for the AFA on December 30,
2002, after the moratorium ended (67 FR 79692). The Administrator,
Alaska Region, NMFS, determined that the FMP amendments were necessary
for the conservation and management of the groundfish, crab, and
scallop fisheries off Alaska and that they are consistent with the
Magnuson-Stevens Act and other applicable laws (67 FR 79692, December
30, 2002).
By adopting the AFA in 1998, by mandating its implementation in
1999, and by making it permanent in 2001, Congress in effect adopted an
exception to the moratorium on IFQ programs for the AFA. Further, NMFS
did not adopt permanent regulations implementing the AFA until after
the IFQ moratorium ended.
Comment 9: Imposing cost recovery on vessel owners in the AFA
catcher/processor sector who voluntarily end ``a race for fish''
creates a disincentive to rationalize through private cooperation.
Response: The AFA, not the vessel owners in the AFA catcher/
processor sector, ended the ``race for fish.'' As explained in response
to Comment 8, the AFA, and the implementing FMP amendments and
regulations, created a limited access privilege program. The AFA
Program required a fixed allocation of pollock to specific vessels that
are eligible to participate in the fishery. The AFA allocated 40
percent of the annual pollock TAC to catcher/processors and catcher
vessels that harvest pollock for processing by catcher/processors and
the AFA named the specific vessels that are eligible to harvest that
allocation. Additionally, ending the race for fish resulted in
substantial economic benefits to fishery participants (Section 1.5.3.1
of the Analysis).
Comment 10: If the Pacific whiting catcher/processor sector that
currently operates off the west coast in the waters under the
jurisdiction of the Pacific Fishery Management Council was not
considered to be a LAP program prior to 2011, then why is the AFA
catcher/processor sector considered a LAP program? NMFS should identify
any material differences in management of the AFA catcher/processor
sector today and the Pacific whiting catcher/processor sector prior to
2011.
Response: The primary material difference between the Pacific
whiting fishery and the AFA catcher/processor sector is that the
Pacific whiting fishery is not managed under the AFA. The AFA Program
is a limited access privilege program because the AFA mandated
allocations and specifically named eligible participants. The AFA and
Federal regulations at Sec. 679.20(a)(5)(i)(A)(4) allocate 40 percent
of the directed fishing allowance to the AFA catcher/processor sector
and AFA catcher vessels delivering to the catcher/processors. The AFA
catcher/processor sector has exclusive use of its directed fishing
allowance because the catcher/processors that are eligible to
participate are specified in section 208(e) of the AFA and Federal
regulations at Sec. 679.4(l)(2), and the catcher vessels that are
eligible to deliver to those catcher/processors are specified in
section 208(b) of the AFA and Federal regulations at Sec.
679.4(l)(3)(i)(A). The AFA catcher/processor sector manages its
exclusive directed fishing allocation for the benefit of its members.
For a description of the management of the Pacific whiting catcher/
processor sector that operates off the west coast in the waters under
the jurisdiction of the Pacific Fishery Management Council, please see
the proposed rule to establish a trawl rationalization program for the
Pacific Coast groundfish fishery (75 FR 32994, June 10, 2010).
Comment 11: NMFS defines the person responsible for paying the cost
recovery fee applicable to the AFA catcher/processor sector in the
proposed rule at Sec. 679.66(a)(1)(ii). This regulation should be
revised to read ``the person designated as the representative of the
Cooperative Agreement between Offshore Pollock Catchers' Cooperative
and Pollock Conservation Cooperative.''
Response: Based on this and similar comments from the same
commenter, regarding the person responsible for paying the cost
recovery fee, NMFS has
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modified this final rule to specify the AFA catcher/processor sector's
designated representative responsible for paying the cost recovery fee.
Under the Amendment 91 implementing regulations, the AFA catcher/
processor sector has already designated an entity for the management of
the Chinook salmon PSC that represents all the participants in the
sector. Use of the entity representative resolves the confusion over
who the designated representative is for the AFA catcher/processor
sector that is responsible for submitting the cost recovery fee
payment. NMFS has modified this final rule at Sec. 679.66(a)(1)(ii) to
clarify that the entity representative under Sec. 679.21(f)(8)(i)(C)
will be the designated representative responsible for submitting the
cost recovery fee payment. See response to Comment 6 for additional
information.
For the AFA catcher/processor sector, the proposed rule specified
that the representative responsible for submitting the cost recovery
payment for all Bering Sea pollock landings made under the authority of
their cooperative is the person designated as the representative of the
listed AFA catcher/processors and catcher vessels that deliver to them.
However, the proposed rule did not include a mechanism for designating
this representative to NMFS. Since public comments expressed concern
with the appropriate representative for the AFA catcher/processor
sector, NMFS modified this final rule to provide clarity. With this
change, the AFA catcher/processor sector will use its existing entity
and entity representative that the AFA catcher/processor sector has
already designated with NMFS under the implementing regulations for
Amendment 91 to submit the fee.
Comment 12: In the proposed rule at Sec. Sec. 679.66(c)(2),
679.66(c)(2)(iii)(B), 679.66(c)(3)(i), and 679.66(c)(5)(iii), the
references to a cooperative of listed AFA catcher/processors and
catcher vessels delivering to catcher/processors should be revised to
read ``the Cooperative Agreement between Offshore Pollock Catchers'
Cooperative and Pollock Conservation Cooperative'' or, where
appropriate, to the representative of that agreement. References to
``an AFA cooperative,'' ``an AFA cooperative representative,'' and
``cooperative'' in the proposed rule at Sec. 679.66(c)(4) and (5)(i)
should also include references to the Cooperative Agreement or, where
appropriate, the agreement's representative.
Response: This final rule at Sec. 679.66(c) governs the
calculation of the AFA catcher/processor sector fee percentage and fee
liability determination. In the proposed rule, NMFS had used
cooperative as a general term applicable to the three AFA sectors.
However, the use of the term cooperative for the AFA catcher/processor
sector generated concern, as reflected in this public comment. Based on
this and similar comments from the same commenter, NMFS has modified
this final rule to specify that NMFS will calculate the AFA fee
percentage for the AFA catcher/processor sector. NMFS changed
Sec. Sec. 679.66(c)(2) introductory text, 679.66(c)(2)(iii)(B),
679.66(c)(3)(i), 679.66(c)(4), and 679.66(c)(5)(i) and (iii) to add
language specifying the entity representative for the AFA catcher/
processor sector and stating that these paragraphs are applicable to
the AFA catcher/processor sector. See response to Comments 6 and 11 for
additional information on the entity representative for the AFA
catcher/processor sector.
Comment 13: The definition of ``AFA fee liability'' at Sec. 679.2
should be revised to mean ``the amount of money . . . owed to NMFS by
an AFA cooperative or the Cooperative Agreement between Offshore
Pollock Catchers' Cooperative and Pollock Conservation Cooperative . .
. .''
Response: NMFS has changed the definition of ``AFA fee liability''
at Sec. 679.2 in this final rule to clarify that the AFA fee liability
means the amount of money for Bering Sea pollock cost recovery, in U.S.
dollars, owed to NMFS by an AFA cooperative or AFA sector as determined
by multiplying the appropriate AFA standard ex-vessel value of landed
Bering Sea pollock by the appropriate AFA fee percentage. For
consistency, NMFS also changed the definition of ``AFA fee percentage''
at Sec. 679.2 in this final rule to clarify that the AFA fee liability
applies to an AFA cooperative or AFA sector. See response to Comment 11
for additional detail.
Comment 14: Change the proposed rule at Sec. 679.66(d) to add the
representative of the Cooperative Agreement between Offshore Pollock
Catchers' Cooperative and Pollock Conservation Cooperative as the
designated representative for the AFA catcher/processor sector. Make
this change at Sec. Sec. 679.66(d)(3), 679.66(d)(3)(i),
679.66(d)(3)(ii), 679.66(d)(4), 679.66(d)(5), and 679.66(d)(6).
Response: This final rule at Sec. 679.66(d) governs the
underpayment of the cost recovery fee liability. In the proposed rule,
NMFS used cooperative as a general term applicable to the three AFA
sectors and their unique associations. However, the use of the term
cooperative for the AFA catcher/processor sector generated a number of
public comments from one commenter. NMFS agrees that the proposed rule
language Sec. 679.66(d) should be more specific regarding the
designated representative for the AFA catcher/processor sector.
However, NMFS disagrees that the appropriate designated representative
for the AFA catcher/processor sector is the representative of the
Cooperative Agreement.
Based on this and Comments 6, 11, 12, and 13, NMFS has modified
this final rule to specify that the designated representative for the
AFA catcher/processor sector is the entity representative defined at
Sec. 679.21(f)(8)(i)(C). NMFS changed this final rule at Sec. Sec.
679.66(d)(3), 679.66(d)(3)(i), 679.66(d)(3)(ii), 679.66(d)(4),
679.66(d)(5), and 679.66(d)(6) to add language specifying the entity
representative for the AFA catcher/processor sector and that these
paragraphs are applicable to the AFA catcher/processor sector.
Comment 15: References to ``an AFA cooperative,'' ``an AFA
cooperative representative,'' and ``cooperative'' in the proposed rule
at Sec. Sec. 679.66(e) and 679.66(f) should also include references to
``the Cooperative Agreement between Offshore Pollock Catchers'
Cooperative and Pollock Conservation Cooperative'' or, where
appropriate, the agreement's representative.
Response: This final rule at Sec. 679.66(e) and (f) governs over
payment and appeals, respectively. NMFS disagrees that the Cooperative
Agreement is the appropriate entity for the AFA catcher/processor
sector for reasons explained in the response to Comment 11. However,
NMFS changed this final rule at Sec. 679.66(e) and (f) to clarify that
the designated representative is the appropriate person for activities
regulated by Sec. 679.66(e) and (f).
Comment 16: In Sec. 679.66(g) Administrative Fees, the reference
to the account drawn on to pay the ``CDQ fee liability'' should refer
to the ``AFA fee liability.''
Response: NMFS removed paragraph (g) Administrative Fees from each
cost recovery program at Sec. Sec. 679.33, 679.66, 679.67, and 679.95.
These paragraphs addressed administrative fees if the account drawn on
to pay the cost recovery fee liability has insufficient funds to cover
the transaction or if the account becomes delinquent. These paragraphs
are not necessary because the Debt Collection Improvement Act of 1996,
as explained in the Treasury Financial Manual Part 4, Chapter 4000,
generally requires Federal agencies to
[[Page 160]]
transfer any nontax debt to U.S. Department of the Treasury's Bureau of
the Fiscal Service (Fiscal Service) for debt collection services. After
transfer, Fiscal Service takes appropriate action to service, collect,
compromise, or suspend or terminate collection action on the debt. NMFS
then renumbered paragraph (h) as paragraph (g) Annual report.
Comment 17: The regulations should clarify that the person
designated as the representative of the Cooperative Agreement between
Offshore Pollock Catchers' Cooperative and Pollock Conservation
Cooperative is a representative of that agreement solely for purposes
of payment of cost recovery fees.
Response: In this final rule at Sec. 679.66(a)(1)(ii), the person
responsible for submitting the cost recovery fee is the person
designated as the representative of the entity representing the AFA
catcher/processor sector under Sec. 679.21(f)(8)(i)(C).
Comments on the Amendment 80 Cost Recovery Fee Program
Comment 18: Use the Commercial Operator's Annual Report (COAR) to
determine the standard ex-vessel price for Amendment 80 species and
remove the requirement that Amendment 80 cooperatives submit the First
Wholesale Volume and Value Report. The new reporting requirement is
burdensome, redundant, and will require additional costs for NMFS.
These additional costs will result in additional fee liabilities for
the Amendment 80 cooperatives. COAR data are adequate for determining
the standard price for species covered by the First Wholesale Volume
and Value Report and can be obtained with less cost.
Response: NMFS considered using COAR for all species and all CDQ
and LAP programs that would be subject to the new cost recovery
regulations (see Section 1.7.2.1 of the Analysis). NMFS selected using
COAR data only for the AFA and Aleutian Islands Pollock Programs
because these are single species fisheries. As noted in Section
1.7.2.2.1 of the Analysis, there is not substantial variation in the
pollock ex-vessel price from year to year. Therefore, the standard ex-
vessel price is unlikely to impact the cost recovery fee that any
person would be required to pay. Also, because a single price is set
for all Bering Sea AFA pollock landed and only pollock is used to
determine the cost recovery fee, the amount of the pollock each person
harvests determines the percentage of the cost recovery fee each AFA
person must pay.
In contrast, the Amendment 80 and CDQ Programs are multispecies
programs and the variation in the ex-vessel price of a species and the
proportion of species harvested by an Amendment 80 cooperative or CDQ
group can affect the total fee liability due. Section 1.7.2 of the RIR/
FRFA and the preamble to the proposed rule show that the ex-vessel
price of species covered by the Pacific Cod Ex-vessel Volume and Value
Report and the First Wholesale Volume and Value Report can vary
substantially from year to year, and this variation would have an
impact on the fees that each person in these programs would be liable
to pay. Using COAR data from the previous year may not reflect the ex-
vessel prices that exist in the year that the catch subject to cost
recovery occurs. Therefore, NMFS is requiring that Amendment 80
cooperatives submit a First Wholesale Volume and Value Report for
species subject to a cost recovery fee for species other than BSAI
halibut, BSAI Pacific cod, BSAI pollock, and BSAI sablefish. NMFS
collects data on BSAI halibut and BSAI sablefish through existing data
collection methods that provide more timely data than that provided by
the COAR. NMFS will collect data for BSAI Pacific cod using a separate
Pacific Cod Ex-vessel Volume and Value Report.
The First Wholesale Volume and Value Report allows NMFS to collect
price and quantity data for the current year's fishery (as required
under the Magnuson-Stevens Act) to determine the portion of the total
cost recovery fee that each person is required to pay. NMFS must have
this information to fulfill its obligation in assessing each person the
required fee. The data collected from the First Wholesale Volume and
Value Report is the minimum amount of information needed to determine
each person's fee liability for Amendment 80 species and species other
than BSAI halibut, BSAI Pacific cod, BSAI pollock, and BSAI sablefish.
NMFS agrees that collecting these data through the First Wholesale
Volume and Value Report will increase the Amendment 80 sector cost
recovery fee and increase the reporting burden on industry. NMFS
considered implementing monthly reporting requirements for the First
Wholesale Volume and Value Report similar to the IFQ program's Volume
and Value Reports. However, to reduce the reporting burden and reduce
the overall costs to the Amendment 80 participants, NMFS determined
that an annual First Wholesale Volume and Value Report would provide
sufficient information to collect the cost recovery fees and reduce
administrative costs relative to a monthly reporting requirement.
Overall, the cost that NMFS is likely to incur to maintain and process
the First Volume Wholesale Volume and Value Report is only a small
proportion of NMFS' total costs to manage the Amendment 80 and CDQ
Programs.
Comment 19: There is no need to collect data to determine a
standard ex-vessel price for rock sole harvests during the first
quarter (January 1 through March 31), and a separate standard ex-vessel
price for harvests for the remainder of the year. The intra-annual ex-
vessel price fluctuations for rock sole have been limited in recent
years due to the decline in the rock sole and roe market. The average
annual rock sole prices are sufficient for the Amendment 80 sector to
determine the standard ex-vessel price.
Response: Table 1-26 of the Analysis provides a summary of the
estimated monthly rock sole ex-vessel prices. Table 1-26 shows that the
difference in rock sole ex-vessel prices from the first quarter of a
year relative to the rest of the year have declined. However, there is
still a substantial difference in the estimated ex-vessel prices during
the first quarter and the remainder of the year. Even in the most
recent year of complete ex-vessel price data (2013), there was still a
20 percent variation in price between the first quarter of the year and
the remainder of the year. Because this difference continues to
persist, NMFS intends to collect ex-vessel data for rock sole for the
first quarter and for all remaining quarters, as described in proposed
rule.
If the price premium for rock sole in the first quarter of the year
continues to decline, NMFS could consider modifying the First Wholesale
Volume and Value Report in the future. The information collected in the
First Wholesale Volume and Value Report will allow NMFS to monitor the
rock sole ex-vessel prices and determine if a change in reporting is
appropriate.
Comment 20: Clarify in this final rule the term harvested fish for
Amendment 80 vessels. NMFS should only assess fees against fish that
were retained and offloaded from the vessel.
Response: Section 304(d)(2)(B) of the Magnuson-Stevens Act states
that a cost recovery fee ``shall not exceed 3 percent of the ex-vessel
value of fish harvested under any such program.'' This rule defines the
fish harvested and subject to a cost recovery fee as all AFA Program,
Aleutian Islands Pollock Program, Amendment 80 Program, or CDQ Program
landings debited against that AFA cooperative or sector, Aleut
Corporation, Amendment 80
[[Page 161]]
cooperative, or CDQ group's allocations, respectively (see regulations
at Sec. Sec. 679.66(c)(5)(i) for AFA, 679.67(c)(5)(i) for Aleutian
Islands pollock, 679.95(c)(5)(i) for Amendment 80, and 679.33(c)(5)(i)
for CDQ).
For catcher/processor vessels that harvest fish subject to a cost
recovery fee, NMFS uses information currently collected from at-sea
scales and onboard observers to determine the amount and species
composition of fish landed and debited from the applicable CDQ or LAP
program allocation. Catcher/processors are not currently required to
submit information on the weight and species composition of fish
retained and offloaded. Establishing an offload reporting requirement
and subsequent monitoring requirements would result in additional costs
to NMFS. These costs would be included in the calculation of the cost
recovery fee for the applicable CDQ or LAP program because NMFS would
be requiring an offload report and monitoring requirement solely to
monitor compliance with regulations necessary for CDQ or LAP program
cost recovery. These additional costs are not necessary because
information currently collected from at-sea scales and onboard
observers provides a less costly independent source of information on
the amount and species composition of fish harvested that are subject
to a cost recovery fee. For catcher vessels, NMFS uses data from the
processor receiving the fish (i.e., a fish ticket) to determine the
amount and species composition of fish subject to a cost recovery fee.
Comment 21: Grant the Amendment 80 Program the same exception to
the requirement to pay the fee liability in full by December 31 as
granted to the AFA catcher/processor sector. The Amendment 80 Program
should receive a proportion of its quota that matches the proportion of
fees paid by the deadline (i.e., if an Amendment 80 cooperative pays
only 80 percent of its fee liability, then NMFS would issue only 80
percent of the cooperative quota allocation to that cooperative). It
would be appropriate and fair to grant this same exception because of
difficulties associated with the timing of internal fee collection and
unplanned increases in fees or decreases in fish values that may result
in insufficient inseason fee collections from cooperative members.
Response: This final rule at Sec. 679.66(d)(3)(ii) provides that
if the AFA catcher/processor sector pays only a portion of its AFA fee
liability, the Regional Administrator may release a portion of the
Bering Sea pollock allocation equal to the portion of the fee liability
paid.
Section 1.10.1.1, Section 1.10.3.1, and the Executive Summary of
the Analysis and the preamble to the proposed rule explain that NMFS
can release a percentage of the allocation of catch that is equal to
the percentage of the cost recovery fee only for single species LAP
programs. The Amendment 80 LAP Program is a multi-species LAP program.
Withholding a portion of the allocation for an Amendment 80 cooperative
would be complicated by the fact that each Amendment 80 species has a
different ex-vessel value and members within the cooperative are
allocated different amounts of Amendment 80 quota share. These
allocations yield different amounts of Amendment 80 cooperative quota
(CQ) when the Amendment 80 quota share is assigned to an Amendment 80
cooperative. Therefore, NMFS could not conclusively determine how much
of a specific Amendment 80 species CQ allocation should be withheld.
For example, if an Amendment 80 cooperative paid only 90 percent of
its fee liability, it is not clear what portion of the Amendment 80 CQ
would match the percentage of the cost recovery fee paid. Making this
determination would require assumptions and would risk NMFS withholding
species that do not match the cooperative allocations associated with
the unpaid cost recovery fee. Because of this uncertainty, NMFS will
require full payment of the cost recovery fee for the Amendment 80
sector prior to releasing any of the cooperative's annual CQ. The
cooperative contract should address the payment of the cost recovery
fee and persons that do not meet the terms of the contract should be
subject to penalties outlined in the contract.
Comment 22: The Analysis prepared for this action should be revised
to include some additional information on how potential reductions to
halibut PSC limits would affect the overall revenues and the potential
cost recovery fee percent a CDQ or LAP program would have to pay in the
future. Specifically, the Analysis prepared for this action should
describe the potential impact of halibut PSC reductions on the cost
recovery fee percentage paid by the Amendment 80 Program.
Response: Section 1.11 of the Analysis acknowledges that management
actions recommended by the Council and implemented by NMFS could affect
the total amount harvested by these LAP and CDQ programs. Future
management measures applicable to LAP and CDQ programs could increase
or reduce costs, or increase or reduce the ex-vessel value of fisheries
subject to cost recovery. These future management actions could result
in either an increase or a decrease in the cost recovery fee percentage
applicable to LAP or CDQ programs.
The Council has recommended and NMFS is reviewing reduced halibut
PSC limits applicable to the vessels participating in the LAP and CDQ
programs covered by this action. On November 16, 2015, NMFS published a
proposed rule to reduce halibut PSC limits (80 FR 71650). NMFS and the
Council prepared a draft Environmental Assessment/Regulatory Impact
Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) to
consider the impacts of that action. The draft EA/RIR/IRFA states that
halibut PSC limit reductions could result in an increase in the cost
recovery fee percentage due to the decreased harvests that may occur if
halibut PSC limits constrain the ability of vessels to fish. We refer
the reader to that EA/RIR/IRFA for additional details, see the NMFS
Alaska Region Web site at http://alaskafisheries.noaa.gov.
As the commenter states, changes in the halibut PSC limits
applicable to Amendment 80 cooperatives could reduce the amount of the
TAC harvested in these fisheries, and therefore would affect the fee
percentage that Amendment 80 vessels would pay. Reduced catch could be
partially offset by an increase in prices, but the world market for
these fish and the wide availability of substitute products indicate
that an increase in price due to reduced supply is unlikely. Given the
estimated cost recovery fee of 1.62 percent for the Amendment 80
Program, the value of the fishery would need to decrease by about 50
percent, assuming the agency costs remain constant, before the maximum
3 percent cost recovery fee limit is reached.
Comment 23: Clarify regulations at Sec. 679.95(b)(2)(iii) and
Sec. 679.95(c)(5)(iii) to specify who will calculate the fee liability
for each Amendment 80 cooperative, NMFS or the Amendment 80 cooperative
representative. Regulations at Sec. 679.95(b)(2)(iii) state that the
Amendment 80 cooperative representative determines the fee liability.
Regulations at Sec. 679.95(c)(5)(iii) state that NMFS will determine
the fee liability.
Response: NMFS determines the fee liability owed under each LAP or
CDQ program. NMFS also determines the standard prices for landings
under each program. Regulations at Sec. 679.95(b) pertain to NMFS'
determination of the Amendment 80 standard ex-vessel value. The comment
is correct that the proposed rule at Sec. 679.95(b)(2)(iii)
incorrectly explained that an Amendment 80 cooperative
[[Page 162]]
representative determines the Amendment 80 fee liability. The fee
liability determination is in the regulations at Sec. 679.95(c). These
regulations explain that NMFS determines the fee liability. In response
to this comment, NMFS changed this final rule at Sec.
679.95(b)(2)(iii) to remove language pertaining to the fee liability
and to clarify that this paragraph applies to NMFS' determination of
the Amendment 80 standard ex-vessel prices.
NMFS noticed this same error in the proposed rule at Sec.
679.33(b)(2)(iii) that applies to the determination of the CDQ standard
prices. NMFS changed this final rule at Sec. 679.33(b)(2)(iii) to
remove language pertaining to the fee liability and to clarify that
this paragraph applies to NMFS's determination of the CDQ standard
prices.
Comment 24: Regulations at Sec. 679.95(g) incorrectly contain a
reference to pay the ``CDQ fee liability'' because this regulation
applies to the Amendment 80 Program.
Response: NMFS removed paragraph (g) Administrative Fees from each
cost recovery program at Sec. Sec. 679.33, 679.66, 679.67, and 679.95.
See response to Comment 16.
Changes From the Proposed Rule
This final rule includes changes to particular sections of the
regulatory text and amendatory instructions published in the proposed
rule.
NMFS removed paragraph (g) Administrative fees from each cost
recovery program at Sec. Sec. 679.33, 679.66, 679.67, and 679.95.
These paragraphs addressed administrative fees if the account drawn on
to pay the cost recovery fee liability has insufficient funds to cover
the transaction or if the account becomes delinquent. These paragraphs
are not necessary because the Debt Collection Improvement Act of 1996,
as explained in the Treasury Financial Manual Part 4, Chapter 4000,
generally requires Federal agencies to transfer any nontax debt to U.S.
Department of the Treasury's Bureau of the Fiscal Service (Fiscal
Service) for debt collection services. After transfer, Fiscal Service
takes appropriate action to service, collect, compromise, or suspend or
terminate collection action on the debt. NMFS then renumbered paragraph
(h) as paragraph (g) Annual report.
NMFS removed from paragraph (e), in Sec. Sec. 679.33, 679.66,
679.67, and 679.95, the sentence that NMFS may deduct payment
processing fees from any fees returned due to over payment. This
additional sentence is not necessary because processing costs due to
over payment are nominal with improvements in methods to collect fees.
In addition to these two changes, NMFS also made some non-
substantive minor technical corrections to the regulatory text.
NMFS made substantive changes to this final rule in response to
public comments. These changes improve the functioning of the cost
recovery programs implemented with this final rule. All the specific
regulation changes, and the reasons for making these changes, are
contained under Response to Comments, above. This section provides a
summary of the changes made to this final rule in response to public
comment.
CDQ Cost Recovery Changes
In this final rule at Sec. 679.33(b)(2)(iii), NMFS
corrected this paragraph to remove language pertaining to the fee
liability and to clarify that this paragraph applies to NMFS'
determination of the CDQ standard prices in response to Comment 23.
AFA Cost Recovery Changes
In this final rule at Sec. 679.2, NMFS modified the
definitions of AFA fee liability and AFA fee percentage to clarify that
these terms apply to an AFA cooperative or AFA sector in response to
Comment 13.
In this final rule at Sec. 679.66(a)(1)(ii), NMFS
clarified that the entity representative under Sec. 679.21(f)(8)(i)(C)
will be the AFA catcher/processor sector's designated representative
for submission of the cost recovery fee in response to Comment 11.
In this final rule at Sec. 679.66(d)(3), NMFS clarified
that the AFA catcher/processor sector receives the Bering Sea pollock
allocation and that the AFA catcher/processor sector entity
representative under Sec. 679.21(f)(8)(i)(C) submits the fee payment
in response to Comment 14.
To match the changes to Sec. 679.66(a)(1)(ii), NMFS also
changed this final rule as follows. These changes are discussed in
detail in the responses to Comments 11, 12, 13, 14, and 15.
[cir] Sec. Sec. 679.66(a)(2), (a)(3), (a)(4), (b)(1), (c)(4),
(c)(5)(v), (d)(4), (d)(5), and (d)(6), (e), and (f) were changed to
replace ``cooperative representative'' with ``designated
representative;''
[cir] Sec. 679.66(b)(2)(i), (c)(5)(i), (d)(5), (d)(6) and (e) were
changed to add ``or AFA sector;'' and
[cir] Sec. 679.66(c)(2) introductory text, (c)(2)(iii)(B),
(c)(3)(i) and (c)(5)(iii) were changed to replace references to listed
AFA catcher/processors and high seas catcher vessels that deliver to
them with ``AFA catcher/processor sector.''
Amendment 80 Cost Recovery Changes
In this final rule at Sec. 679.95(b)(2)(iii), NMFS
corrected this paragraph to remove language pertaining to the fee
liability and to clarify that this paragraph applies to NMFS'
determination of the Amendment 80 standard ex-vessel prices in response
to Comment 23.
OMB Revisions to Paperwork Reduction Act References in 15 CFR 902.1(b)
Section 3507(c)(B)(i) of the PRA requires that agencies inventory
and display a current control number assigned by the Director, OMB, for
each agency information collection. Section 902.1(b) identifies the
location of NOAA regulations for which OMB approval numbers have been
issued. Because this final rule revises and adds data elements within a
collection-of-information for recordkeeping and reporting requirements,
15 CFR 902.1(b) is revised to reference correctly the sections
resulting from this final rule.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
Administrator, Alaska Region, NMFS, has determined that this final rule
is necessary for the conservation and management of the groundfish and
halibut fisheries and that it is consistent with the FMP, the National
Standards, other provisions of the Magnuson-Stevens Act, and other
applicable laws. This final rule has been determined to be not
significant for purposes of Executive Order 12866.
Final Regulatory Flexibility Analysis
This final regulatory flexibility analysis (FRFA) incorporates the
Initial Regulatory Flexibility Analysis (IRFA), a summary of the
significant issues raised by the public comments in response to the
IRFA, and NMFS' responses to those comments, and a summary of the
analyses completed to support the action.
Section 604 of the Regulatory Flexibility Act requires that, when
an agency promulgates a final rule under section 553 of Title 5 of the
United States Code, after being required by that section, or any other
law, to publish a general notice of proposed rulemaking, the agency
shall prepare a final regulatory flexibility analysis.
Section 604 describes the required contents of a FRFA: (1) A
statement of the need for, and objectives of, the rule; (2) a statement
of the significant issues raised by the public comments in
[[Page 163]]
response to the IRFA, a statement of the assessment of the agency of
such issues, and a statement of any changes made in the proposed rule
as a result of such comments; (3) the response of the agency to any
comments filed by the Chief Counsel for Advocacy of the Small Business
Administration (SBA) in response to the proposed rule, and a detailed
statement of any change made to the proposed rule in this final rule as
a result of the comments; (4) a description of and an estimate of the
number of small entities to which the rule will apply or an explanation
of why no such estimate is available; (5) a description of the
projected reporting, recordkeeping and other compliance requirements of
the rule, including an estimate of the classes of small entities which
will be subject to the requirement and the type of professional skills
necessary for preparation of the report or record; and (6) a
description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in this final rule and why each one of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected.
Need for and Objectives of the Rule
A statement of the need for, and objectives of, the rule is
contained in the preamble to this final rule and is not repeated here.
Public and Chief Counsel for Advocacy Comments on the Proposed Rule
NMFS published a proposed rule on January 7, 2015 (80 FR 936). An
IRFA was prepared and summarized in the ``Classification'' section of
the preamble to the proposed rule. The comment period closed on
February 6, 2015. NMFS received three public comment letters,
containing 23 separate comments on the proposed rule. These comments
did not address the IRFA. The economic impacts of the rule were
addressed in the comments by requesting that NMFS clearly define the
costs that are subject to the rule. One comment specifically requested
information on how BSAI halibut PSC reductions being considered by the
Council and Secretary would impact the overall profitability of the
Amendment 80 vessels, which are not considered small entities under the
Small Business Administration Guidelines. The Chief Counsel for
Advocacy of the SBA did not file any comments on the proposed rule.
Number and Description of Small Entities Regulated by the Action
This analysis considers the active fleet in 2013, which is the most
recent year for which size, revenue, and affiliation data were all
available. The only small entities directly regulated by this rule are
the six CDQ groups--the Aleutian Pribilof Island Community Development
Association, the Bristol Bay Economic Development Corporation, the
Central Bering Sea Fishermen's Association, the Coastal Villages Region
Fund, the Norton Sound Economic Development Corporation, and the Yukon
Delta Fisheries Development Association. Through the CDQ Program, the
Council and NMFS allocate a portion of the BSAI groundfish TACs,
halibut quota, and halibut and crab PSC limits, to these six CDQ
groups. These groups represent 65 villages and maintain a non-profit
status. Each of the CDQ groups is organized as an independently owned
and operated not-for-profit entity and none is dominant in its field;
consequently, each is a ``small entity'' under the Small Business
Administration's definition for ``small organization.'' The proceeds
from the CDQ allocations must be used to start or support activities
that will result in ongoing, regionally based, commercial fishery or
related businesses. Section 2.6 of the Analysis prepared for the
proposed rule provides more information on these entities (80 FR 936,
January 7, 2015).
All other entities that are directly regulated through this rule
are not small entities under the SBA definitions. This action would
regulate Amendment 80, AFA cooperatives, and AFA sectors, and the
vessels that are harvesting exclusive harvest privileges under the
Amendment 80 and AFA Programs; The Aleut Corporation; and processors
and motherships that receive CDQ Pacific cod deliveries and trawl-
caught Pacific cod. The SBA defines a small commercial finfish fishing
entity as one that has annual gross receipts, from all activities of
all affiliates, of less than $20.5 million (79 FR 33647, June 12,
2014). None of these entities are considered to be small entities based
on the SBA's size standard.
Recordkeeping and Reporting Requirements
This action modifies recordkeeping or reporting requirements so
that sufficient data are available to determine the cost recovery fee
and standardized prices in the time frame required under the Magnuson-
Stevens Act. No small entity is subject to additional reporting
requirements. Shorebased processors will be required to submit ex-
vessel Volume and Value Reports for all CDQ groundfish landings and all
BSAI Pacific cod trawl landings. Each Amendment 80 catcher/processor
will be required to submit a First Wholesale Volume and Value Report
for all groundfish species, except Pacific cod, harvested under the
Amendment 80 and CDQ programs. The information to be collected is
described in Section 1.7.2.1 of the Analysis.
The only additional recordkeeping requirements for small entities
are the bookkeeping skills necessary for the six CDQ groups to submit
payment for their cost recovery fees. NMFS will calculate the fee
amount that each CDQ group owes. The designated representative of each
group is then required to ensure the timely submission of the fee
payment.
Description of Significant Alternatives to the Final Action That
Minimize Adverse Impacts on Small Entities
A FRFA must the outline steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each one of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected. The action is the implementation
of the Magnuson-Stevens Act's mandatory cost recovery fees for LAP and
CDQ programs.
No alternatives or options were identified that would have
accomplished the action's objectives while reducing the potential
economic impact on small entities relative to the preferred
alternative. NMFS has determined that the minimum amount of data
necessary to calculate the cost recover fees as mandated under the
Magnuson-Stevens Act would be collected through volume and value
reports. Collecting the minimum amount of data necessary from the
fewest persons possible is beneficial to all entities.
The economic impact on directly regulated small entities is the
implementation of a cost recovery fee mandated under the Magnuson-
Stevens Act. The Magnuson-Stevens Act requires that participants in
limited access privilege programs and the CDQ Program pay up to 3
percent of the ex-vessel value of the fish they are
[[Page 164]]
allocated to recover the actual costs that are directly related to the
management, data collection, and enforcement of the programs specific
costs that are incurred by the management agencies. Given the specific
requirements of the Magnuson-Stevens Act to implement a cost recovery
fee, no other alternatives would accomplish the stated objective. Each
CDQ group is required to submit its own fee payment using a payment
system approved by NMFS.
For all directly regulated entities NMFS considered and analyzed a
range of specific options to determine standard prices for calculating
standard ex-vessel value data, dates for volume and value report and
fee submission, and other details of the fee collection process
described in the Analysis. NMFS selected those options that would
minimize the reporting burden and costs on small entities consistent
with the stated objective when possible.
Specifically, NMFS considered options to use COAR data to determine
standard prices and standard ex-vessel values for all species subject
to cost recovery, but did not select that option for species other than
BSAI pollock because it could impact the fee liability each person
would be required to pay. NMFS did select options that minimized
reporting requirements on small entities by using existing data sources
(e.g., COAR for BSAI pollock, and the IFQ buyer report for BSAI
sablefish and BSAI halibut). NMFS also selected dates for the
submission of reports that provided the most current data available to
allow fee liabilities to be calculated on a timely basis. These dates
would minimize the potential impact on small entities relative to other
dates considered. NMFS will provide annual reports to the persons
subject to the cost recovery fee and other interested stakeholders to
help provide transparency in the fee liability determination.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules.
NMFS has posted a small entity compliance guide on the NMFS Alaska
Region Web site (http://alaskafisheries.noaa.gov) as a plain language
guide to assist small entities in complying with this rule. Contact
NMFS to request a hard copy of the guide (see ADDRESSES).
Collection-of-Information Requirements
This rule contains collection-of-information requirements subject
to the Paperwork Reduction Act (PRA) and which have been approved under
the following OMB control numbers.
OMB Control No. 0648-0318
With this action, the payment and observer fee submittal (15
minutes) is removed from this collection and added to the new fee
collection.
OMB Control No. 0648-0398
With this action, this IFQ Cost Recovery collection is removed and
superseded by the new cost recovery collection.
OMB Control No. 0648-0401
Public reporting burden per response is estimated to average eight
hours for Cooperative Contract. This information collection is revised
by adding to the Cooperative Contract the obligation of AFA cooperative
members to ensure full payment of cost recovery fees.
OMB Contract No. 0648-0545
With this action, two forms--the Rockfish Volume and Value Report
(two hours per response) and the payment and fee submittal (10 minutes
per response) are removed from this collection.
OMB Control No. 0648-0565
Public reporting burden per response is estimated to average two
hours for Application for Amendment 80 Cooperative Quota; the
Cooperative Agreement is an attachment to this application. This
information collection is revised by adding to the Cooperative
Agreement the obligation of AFA cooperative members to ensure full
payment of cost recovery fees.
OMB Control No. 0648-0570
With this action, the Crab Rationalization Program Cost Recovery
collection is removed and superseded by the new cost recovery
collection.
OMB Control No. 0648-0711
This new information collection is created by combining all
existing Alaska Region fee information collections with the observer
fee submission. Public reporting burden per response is estimated to
average one minute for cost recovery fee or observer fee submission;
five minutes for value and volume report; and four hours for appeal of
an incomplete payment of a cost recovery fee or observer fee.
Estimates for public reporting burden include the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Send comments regarding these burden estimates or any other aspect
of this data collection, including suggestions for reducing the burden,
to NMFS (see ADDRESSES) and by email to [email protected], or
fax to 202-395-5806.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to 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 OMB control number. All currently approved NOAA
collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: December 29, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS amends 15 CFR part
902 and 50 CFR part 679 as follows:
Title 15--Commerce and Foreign Trade
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
0
1. The authority citation for part 902 continues to read as follows:
Authority: 44 U.S.C. 3501 et seq.
0
2. In Sec. 902.1, in the table in paragraph (b), under the entry ``50
CFR'':
0
a. Revise entries for ``679.5(a)''; ``679.5(c), (e), and (f)'';
``679.5(d)''; and ``679.5(l)(7);
0
b. Add entries in alphanumeric order for ``679.5(u)'' and ``679.33'';
0
c. Revise entries for ``679.43''; ``679.45''; ``679.55''; and
``679.65'';
0
d. Add entries in alphanumeric order for ``679.66''; ``679.67'';
``679.85''; and ``679.95'';
[[Page 165]]
0
e. Remove the entries for ``680.5(f)''; ``680.5(g)''; and ``680.5(m)'';
0
f. Add an entry in alphanumeric order for ``680.5(f), (g), and (m)''.
The revisions and additions read as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
CFR part or section where the
information collection requirement Current OMB control No. (all
is located numbers begin with 0648-)
------------------------------------------------------------------------
* * * * * * *
50 CFR:............................ ...................................
* * * * * * *
679.5(a)........................... -0213, -0269, and -0272.
* * * * * * *
679.5(c), (e), and (f)............. -0213, -0272, -0330, -0513, and -
0515.
679.5(d)........................... -0213 and -0515.
* * * * * * *
679.5(l)(7)........................ -0711.
* * * * * * *
679.5(u)........................... -0206 and -0711.
* * * * * * *
679.33............................. -0711.
* * * * * * *
679.43............................. -0272, -0318, -0334, -0401, -0545,
0565, -0569, and -0711.
679.45............................. -0272, -0592, and -0711.
* * * * * * *
679.55............................. -0206, -0272, and -0711.
* * * * * * *
679.65............................. -0213, -0515, and -0633.
679.66............................. -0711.
679.67............................. -0711.
* * * * * * *
679.85............................. -0545.
* * * * * * *
679.95............................. -0711.
* * * * * * *
680.5(f), (g), (m)................. -0711.
* * * * * * *
------------------------------------------------------------------------
Title 50--Wildlife and Fisheries
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
0
3. The authority citation for part 679 continues to read as follows:
Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.;
Pub. L. 108-447; Pub. L. 111-281.
0
4. In Sec. 679.2, add definitions for ``AFA fee liability''; ``AFA fee
percentage''; ``AFA pollock equivalent pounds''; ``AFA standard ex-
vessel value''; ``AFA standard price''; ``Aleutian Islands pollock
equivalent pounds''; ``Aleutian Islands pollock fee liability'';
``Aleutian Islands pollock fee percentage''; ``Aleutian Islands pollock
standard ex-vessel value''; ``Aleutian Islands pollock standard
price''; ``Amendment 80 equivalent pounds''; ``Amendment 80 fee
liability''; ``Amendment 80 fee percentage''; ``Amendment 80 standard
ex-vessel value''; ``Amendment 80 standard price''; ``CDQ equivalent
pounds''; ``CDQ fee liability''; ``CDQ fee percentage''; ``CDQ standard
ex-vessel value''; and ``CDQ standard price'' in alphabetical order to
read as follows:
Sec. 679.2 Definitions.
* * * * *
AFA fee liability means the amount of money for Bering Sea pollock
cost recovery, in U.S. dollars, owed to NMFS by an AFA cooperative or
AFA sector as determined by multiplying the appropriate AFA standard
ex-vessel value of landed Bering Sea pollock by the appropriate AFA fee
percentage.
AFA fee percentage means that positive number no greater than 3
percent (0.03) determined by the Regional Administrator and established
for use in calculating the AFA fee liability for an AFA cooperative or
AFA sector.
* * * * *
AFA pollock equivalent pounds means the weight recorded in pounds
for landed AFA pollock and calculated as round weight.
AFA standard ex-vessel value means the total U.S. dollar amount of
landed
[[Page 166]]
Bering Sea pollock as calculated by multiplying the number of landed
pounds of Bering Sea pollock by the appropriate AFA standard price
determined by the Regional Administrator.
AFA standard price means the price, in U.S. dollars, for landed
Bering Sea pollock, in AFA pollock equivalent pounds, as determined by
the Regional Administrator.
* * * * *
Aleutian Islands pollock equivalent pounds means the weight
recorded in pounds for landed Aleutian Islands pollock and calculated
as round weight.
Aleutian Islands pollock fee liability means the amount of money
for Aleutian Islands directed pollock cost recovery, in U.S. dollars,
owed to NMFS by the Aleut Corporation as determined by multiplying the
appropriate standard ex-vessel value of its landed Aleutian Islands
pollock by the appropriate Aleutian Islands pollock fee percentage.
Aleutian Islands pollock fee percentage means that positive number
no greater than 3 percent (0.03) determined by the Regional
Administrator and established for use in calculating the Aleutian
Islands pollock fee liability for the Aleut Corporation.
Aleutian Islands pollock standard ex-vessel value means the total
U.S. dollar amount of landed Aleutian Islands pollock as calculated by
multiplying the number of landed pounds of Aleutian Islands pollock by
the appropriate Aleutian Islands pollock standard price determined by
the Regional Administrator.
Aleutian Islands pollock standard price means the price, in U.S.
dollars, for landed Aleutian Islands pollock, in Aleutian Islands
pollock equivalent pounds, as determined by the Regional Administrator.
* * * * *
Amendment 80 equivalent pounds means the weight recorded in pounds
for landed Amendment 80 species CQ and calculated as round weight.
Amendment 80 fee liability means the amount of money for Amendment
80 cost recovery, in U.S. dollars, owed to NMFS by an Amendment 80 CQ
permit holder as determined by multiplying the appropriate standard ex-
vessel value of landed Amendment 80 species CQ by the appropriate
Amendment 80 fee percentage.
Amendment 80 fee percentage means that positive number no greater
than 3 percent (0.03) determined by the Regional Administrator and
established for use in calculating the Amendment 80 fee liability for
an Amendment 80 CQ permit holder.
* * * * *
Amendment 80 standard ex-vessel value means the total U.S. dollar
amount of landed Amendment 80 species CQ as calculated by multiplying
the number of landed Amendment 80 equivalent pounds by the appropriate
Amendment 80 standard price determined by the Regional Administrator.
Amendment 80 standard price means the price, in U.S. dollars, for
landed Amendment 80 species, in Amendment 80 equivalent pounds, as
determined by the Regional Administrator.
* * * * *
CDQ equivalent pounds means the weight recorded in pounds, for
landed CDQ groundfish and halibut, and calculated as round weight.
CDQ fee liability means the amount of money for CDQ groundfish and
halibut cost recovery, in U.S. dollars, owed to NMFS by a CDQ group as
determined by multiplying the appropriate standard ex-vessel value of
landed CDQ groundfish and halibut by the appropriate CDQ fee
percentage.
CDQ fee percentage means that positive number no greater than 3
percent (0.03) determined by the Regional Administrator and established
for use in calculating the CDQ groundfish and halibut fee liability for
a CDQ group.
* * * * *
CDQ standard ex-vessel value means the total U.S. dollar amount of
landed CDQ groundfish and halibut as calculated by multiplying the
number of landed CDQ equivalent pounds by the appropriate CDQ standard
price determined by the Regional Administrator.
CDQ standard price means the price, in U.S. dollars, for landed CDQ
groundfish and halibut, in CDQ equivalent pounds, as determined by the
Regional Administrator.
* * * * *
0
5. In Sec. 679.5, add paragraph (u) to read as follows:
Sec. 679.5 Recordkeeping and reporting (R&R).
* * * * *
(u) BSAI Cost Recovery Volume and Value Reports--(1) Pacific Cod
Ex-vessel Volume and Value Report--(i) Applicability. A shoreside
processor designated on an FPP, or a mothership designated on an FFP,
that processes landings of either CDQ Pacific cod or BSAI Pacific cod
harvested by a vessel using trawl gear must submit annually to NMFS a
complete Pacific Cod Ex-vessel Volume and Value Report, as described in
this paragraph (u)(1), for each reporting period for which the
shorebased processor or mothership receives this Pacific cod.
(ii) Reporting period. The reporting period of the Pacific Cod Ex-
vessel Volume and Value Report shall extend from January 1 to October
31 of the year in which the landings were made.
(iii) Due date. A complete Pacific Cod Ex-vessel Volume and Value
Report must be received by NMFS no later than November 10 of the year
in which the processor or mothership received the Pacific cod.
(iv) Information required. (A) The submitter must log in using his
or her password and NMFS person ID to submit a Pacific Cod Ex-vessel
Volume and Value Report. The User must review any auto-filled cells to
ensure that they are accurate. A completed report must have all
applicable fields accurately filled-in.
(B) Certification. By using the NMFS person ID and password and
submitting the report, the submitter certifies that all information is
true, correct, and complete to the best of his or her knowledge and
belief.
(v) Submittal. The submitter must complete and submit online to
NMFS the Pacific Cod Ex-vessel Volume and Value Report available at
https://alaskafisheries.noaa.gov.
(2) First Wholesale Volume and Value Report--(i) Applicability. An
Amendment 80 vessel owner that harvests groundfish species, other than
Pacific cod, must submit annually to NMFS a complete First Wholesale
Volume and Value Report, as described in this paragraph (u)(2), for
each reporting period for which the Amendment 80 vessel harvests
groundfish species, other than Pacific cod.
(ii) Reporting period. (A) The reporting period of the First
Wholesale Volume and Value Report for all species except rock sole
shall extend from January 1 to October 31 of the year in which the
landings were made.
(B) The first reporting period of the First Wholesale Volume and
Value Report for rock sole shall extend from January 1 to March 31, and
the second reporting period shall extend from April 1 to October 31.
(iii) Due date. A complete First Wholesale Volume and Value Report
must be received by NMFS no later than November 10 of the year in which
the Amendment 80 vessel received the groundfish species, other than
Pacific cod.
(iv) Information required. (A) The Amendment 80 vessel owner must
log
[[Page 167]]
in using his or her password and NMFS person ID to submit a First
Wholesale Volume and Value Report. The vessel owner must review any
auto-filled cells to ensure that they are accurate. A completed report
must have all applicable fields accurately filled-in.
(B) Certification. By using the NMFS person ID and password and
submitting the report, the Amendment 80 vessel owner certifies that all
information is true, correct, and complete to the best of his or her
knowledge and belief.
(v) Submittal. The Amendment 80 vessel owner must complete and
submit online to NMFS the First Wholesale Volume and Value Report
available at https://alaskafisheries.noaa.gov.
0
6. In Sec. 679.7, add paragraphs (c)(6), (d)(8), (k)(9), (l)(6),
(o)(4)(vii), and (o)(9) to read as follows:
Sec. 679.7 Prohibitions.
* * * * *
(c) * * *
(6) For a shoreside processor designated on an FPP, or a mothership
designated on an FFP, that processes landings of either CDQ Pacific cod
or BSAI Pacific cod harvested by a vessel using trawl gear to fail to
submit a timely and complete Pacific Cod Ex-vessel Volume and Value
Report as required under Sec. 679.5(u)(1).
(d) * * *
(8) Fail to submit a timely and complete CDQ cost recovery fee
submission form and fee as required under Sec. 679.33.
* * * * *
(k) * * *
(9) Fail to submit a timely and complete AFA cost recovery fee
submission form and fee as required under Sec. 679.66.
(l) * * *
(6) Fail to submit a timely and complete Aleutian Islands pollock
cost recovery fee submission form and fee as required under Sec.
679.67.
* * * * *
(o) * * *
(4) * * *
(vii) Fail to submit a timely and complete Amendment 80 cost
recovery fee submission form and fee as required under Sec. 679.95.
* * * * *
(9) First Wholesale Volume and Value Report. For an Amendment 80
vessel owner to fail to submit a timely and complete First Wholesale
Volume and Value Report as required under Sec. 679.5(u)(2).
* * * * *
0
7. Add Sec. 679.33 to subpart C to read as follows:
Sec. 679.33 CDQ cost recovery.
(a) Cost Recovery Fee Program for CDQ groundfish and halibut--(1)
Who is Responsible? The person documented with NMFS as the CDQ group
representative at the time of a CDQ landing.
(i) Subsequent transfer, under Sec. 679.31(c), of a CDQ allocation
by a CDQ group does not affect the CDQ group representative's liability
for noncompliance with this section.
(ii) Changes in amount of a CDQ allocation to a CDQ group do not
affect the CDQ group representative's liability for noncompliance with
this section.
(2) Fee collection. Each CDQ group that receives a CDQ allocation
of groundfish and halibut is responsible for submitting the cost
recovery payment for all CDQ landings debited against that CDQ group's
allocations.
(3) Payment--(i) Payment due date. A CDQ group representative must
submit all CDQ fee payment(s) to NMFS at the address provided in
paragraph (a)(3)(iii) of this section no later than December 31 of the
calendar year in which the CDQ groundfish and halibut landings were
made.
(ii) Payment recipient. Make electronic payment payable to NMFS.
(iii) Payment address. Submit payment and related documents as
instructed on the fee submission form. Payments must be made
electronically through the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov. Instructions for electronic payment will be
made available on both the payment Web site and a fee liability summary
letter mailed to the CDQ group representative.
(iv) Payment method. Payment must be made electronically in U.S.
dollars by automated clearing house, credit card, or electronic check
drawn on a U.S. bank account.
(b) CDQ standard ex-vessel value determination and use--(1)
General. A CDQ group representative must use the CDQ standard prices
determined by NMFS under paragraph (b)(2) of this section.
(2) CDQ standard prices--(i) General. Each year the Regional
Administrator will publish CDQ standard prices for groundfish and
halibut in the Federal Register by December 1 of the year in which the
CDQ groundfish and halibut landings were made. The CDQ standard prices
will be described in U.S. dollars per CDQ equivalent pound for CDQ
groundfish and halibut landings made during the current calendar year.
(ii) Effective duration. The CDQ standard prices published by NMFS
shall apply to all CDQ groundfish and halibut landings made during the
current calendar year.
(iii) Determination. NMFS will calculate the CDQ standard prices
for each CDQ fishery as follows:
(A) CDQ halibut and CDQ fixed gear sablefish. NMFS will calculate
the CDQ standard prices for CDQ halibut and CDQ fixed gear sablefish to
reflect, as closely as possible by port or port-group, the variations
in the actual ex-vessel values of CDQ halibut and fixed-gear sablefish
based on information provided in the IFQ Registered Buyer Ex-vessel
Volume and Value Report described at Sec. 679.5(l)(7). The Regional
Administrator will base CDQ standard prices on the following
information:
(1) Landed pounds of IFQ halibut and sablefish and CDQ halibut in
the Bering Sea port-group;
(2) Total ex-vessel value of IFQ halibut and sablefish and CDQ
halibut in the Bering Sea port-group; and
(3) Price adjustments, including retroactive payments.
(B) CDQ Pacific cod. NMFS will use the standard prices calculated
for Pacific cod based on information provided in the Pacific Cod Ex-
vessel Volume and Value Report described at Sec. 679.5(u)(1) for CDQ
Pacific cod.
(C) CDQ pollock. NMFS will use the standard prices calculated for
AFA pollock described at Sec. 679.66(b) for CDQ pollock.
(D) Other CDQ groundfish including sablefish caught with trawl
gear. (1) NMFS will base all CDQ standard prices for all other CDQ
groundfish species on the First Wholesale Volume and Value reports
specified in Sec. 679.5(u)(2).
(2) NMFS will establish CDQ standard prices for all other CDQ
groundfish species on an annual basis; except the Regional
Administrator will establish a first CDQ standard price for rock sole
for all landings from January 1 through March 31, and a second CDQ
standard price for rock sole for all landings from April 1 through
December 31.
(3) The average first wholesale product prices reported will be
multiplied by 0.4 to obtain a proxy for the ex-vessel prices of those
CDQ groundfish species.
(c) CDQ fee percentage--(1) Established percentage. The CDQ fee
percentage for CDQ groundfish and halibut is the amount as determined
by the factors and methodology described in paragraph (c)(2) of this
section. This amount will be announced by publication in the Federal
Register in accordance with paragraph (c)(3) of this section. This
amount must not exceed 3.0 percent pursuant to 16 U.S.C. 1854(d)(2)(B).
[[Page 168]]
(2) Calculating fee percentage value. Each year NMFS will calculate
and publish the CDQ fee percentage according to the following factors
and methodology:
(i) Factors. NMFS will use the following factors to determine the
fee percentage:
(A) The catch to which the CDQ groundfish and halibut cost recovery
fee will apply;
(B) The ex-vessel value of that catch; and
(C) The costs directly related to the management, data collection,
and enforcement of the CDQ Program for groundfish and halibut.
(ii) Methodology. NMFS will use the following equations to
determine the fee percentage: 100 x DPC/V, where:
(A) DPC = the direct program costs for the CDQ Program for
groundfish and halibut for the most recent Federal fiscal year (October
1 through September 30) with any adjustments to the account from
payments received in the previous year.
(B) V = total of the CDQ standard ex-vessel value of the catch
subject to the CDQ fee liability for the current year.
(3) Publication--(i) General. NMFS will calculate and announce the
CDQ fee percentage in a Federal Register notice by December 1 of the
year in which the CDQ groundfish and halibut landings were made. NMFS
will calculate the CDQ fee percentage based on the calculations
described in paragraph (c)(2) of this section.
(ii) Effective period. NMFS will apply the calculated CDQ fee
percentage to CDQ groundfish and halibut landings made between January
1 and December 31 of the same year.
(4) Applicable percentage. The CDQ group representative must use
the CDQ fee percentage applicable at the time a CDQ groundfish and
halibut landing is debited from a CDQ group's allocation to calculate
the CDQ fee liability for any retroactive payments for that CDQ
species.
(5) Fee liability determination for a CDQ group. (i) Each CDQ group
will be subject to a CDQ fee for any CDQ groundfish and halibut debited
from that CDQ group's allocation during a calendar year.
(ii) The CDQ fee assessed to a CDQ group will be based on the
proportion of the standard ex-vessel value of CDQ groundfish and
halibut debited from a CDQ group's allocation relative to all CDQ
groups during a calendar year as determined by NMFS.
(iii) NMFS will provide a CDQ fee liability summary letter to each
CDQ group representative by December 1 of each year. The summary will
explain the CDQ fee liability determination including the current fee
percentage, and details of CDQ pounds debited from the CDQ group
allocations by permit, species, date, and prices.
(d) Underpayment of fee liability--(1) No CDQ group will receive
its allocations of CDQ groundfish or halibut until the CDQ group
representative submits full payment of that CDQ group's complete CDQ
fee liability.
(2) If a CDQ group representative fails to submit full payment for
its CDQ fee liability by the date described in paragraph (a)(3) of this
section, the Regional Administrator may:
(i) At any time thereafter send an IAD to the CDQ group
representative stating that the CDQ group's estimated fee liability, as
indicated by his or her own submitted information, is the CDQ fee
liability due from the CDQ group.
(ii) Disapprove any application to transfer CDQ to or from the CDQ
group in accordance with Sec. 679.31(c).
(3) If a CDQ group fails to submit full payment by December 31 of
each year, the Regional Administrator will not issue allocations of CDQ
groundfish and halibut to that CDQ group for the following calendar
year.
(4) Upon final agency action determining that a CDQ group
representative has not paid the CDQ fee liability due for that CDQ
group, the Regional Administrator may continue to not issue allocations
of CDQ groundfish and halibut for that CDQ group for any subsequent
calendar years until NMFS receives the unpaid fees. If payment is not
received by the 30th day after the final agency action, the agency may
pursue collection of the unpaid fees.
(e) Over payment. Upon issuance of final agency action, payment
submitted to NMFS in excess of the CDQ fee liability determined to be
due by the final agency action will be returned to the CDQ group
representative unless the CDQ group representative requests the agency
to credit the excess amount against the CDQ group's future CDQ fee
liability.
(f) Appeals. A CDQ group representative who receives an IAD for
incomplete payment of a CDQ fee liability may appeal under the appeals
procedures set out at 15 CFR part 906.
(g) Annual report. Each year, NMFS will publish a report describing
the CDQ Cost Recovery Fee Program for groundfish and halibut.
0
8. In Sec. 679.61,:
0
a. Revise paragraph (c)(1); and
0
b. Add paragraph (e)(1)(vi) to read as follows:
Sec. 679.61 Formation and operation of fishery cooperatives.
* * * * *
(c) * * *
(1) What is a designated representative? The designated
representative is the primary contact person for NMFS on issues
relating to the operation of the cooperative. Any cooperative formed
under this section must appoint a designated representative to fulfill
regulatory requirements on behalf of the cooperative including, but not
limited to, filing of cooperative contracts, filing of annual reports,
submitting all cost recovery fees, and in the case of inshore sector
catcher vessel cooperatives, signing cooperative fishing permit
applications and completing and submitting inshore catcher vessel
pollock cooperative catch reports.
* * * * *
(e) * * *
(1) * * *
(vi) List the obligations of members of a cooperative, governed by
this section, to ensure the full payment of all AFA fee liabilities
that may be due.
* * * * *
0
9. Add Sec. 679.66 to subpart F to read as follows:
Sec. 679.66 AFA cost recovery.
(a) Cost recovery fee program for AFA--(1) Who is responsible for
submitting the fee? (i) The person designated on the AFA inshore
cooperative permit as the designated representative at the time of a
Bering Sea pollock landing.
(ii) The person designated as the representative of the entity
representing the AFA catcher/processor sector under Sec.
679.21(f)(8)(i)(C) at the time of a Bering Sea pollock landing.
(iii) The person designated as the representative of the AFA
mothership cooperative at the time of a Bering Sea pollock landing.
(2) Responsibility. (i) Subsequent transfer of AFA permits held by
cooperative members does not affect the designated representative's
liability for noncompliance with this section.
(ii) Changes in the membership in a cooperative, such as members
joining or departing during the relevant year, or changes in the
holdings of AFA permits of those members do not affect the designated
representative's liability for noncompliance with this section.
(3) Fee collection. Each designated representative (as identified
under paragraph (a)(1) of this section) is responsible for submitting
the cost recovery payment for all Bering Sea pollock landings debited
against the
[[Page 169]]
AFA cooperative's or AFA sector's AFA pollock fishery allocation.
(4) Payment--(i) Payment due date. The designated representative
(as identified under paragraph (a)(1) of this section) must submit all
AFA fee payment(s) to NMFS at the address provided in paragraph
(a)(4)(iii) of this section no later than December 31 of the calendar
year in which the Bering Sea pollock landings were made.
(ii) Payment recipient. Make electronic payment payable to NMFS.
(iii) Payment address. Submit payment and related documents as
instructed on the fee submission form. Payments must be made
electronically through the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov. Instructions for electronic payment will be
made available on both the payment Web site and a fee liability summary
letter mailed to each designated representative.
(iv) Payment method. Payment must be made electronically in U.S.
dollars by automated clearing house, credit card, or electronic check
drawn on a U.S. bank account.
(b) AFA standard ex-vessel value determination and use--(1)
General. A designated representative must use the AFA standard price
determined by NMFS under paragraph (b)(2) of this section.
(2) AFA standard price--(i) General. Each year the Regional
Administrator will publish the AFA standard price in the Federal
Register by December 1 of the year in which the landings were made. The
AFA standard price will be described in U.S. dollars per AFA pollock
equivalent pound for Bering Sea pollock landings made by AFA
cooperative or AFA sector members during the current calendar year.
(ii) Effective duration. The AFA standard price published by NMFS
shall apply to all Bering Sea pollock landings made by an AFA
cooperative or AFA sector member during the current calendar year.
(iii) Determination. NMFS will calculate the AFA standard price to
reflect, as closely as possible, the standard price of Bering Sea
pollock landings based on information provided in the COAR for the
previous year, as described in Sec. 679.5(p). The Regional
Administrator will base the AFA standard price on the following
information:
(A) Landed pounds of Bering Sea pollock;
(B) Total ex-vessel value of Bering Sea pollock; and
(C) Price adjustments, including retroactive payments.
(c) AFA fee percentages--(1) Established percentages. The AFA fee
percentages are the amounts as determined by the factors and
methodology described in paragraph (c)(2) of this section. These
amounts will be announced by publication in the Federal Register in
accordance with paragraph (c)(3) of this section. These amounts must
not exceed 3.0 percent pursuant to 16 U.S.C. 1854(d)(2)(B).
(2) Calculating fee percentage value. Each year NMFS will calculate
and publish AFA fee percentages for AFA inshore cooperatives, the AFA
catcher/processor sector, and the AFA mothership cooperative according
to the following factors and methodology:
(i) Factors. NMFS will use the following factors to determine the
fee percentages:
(A) The catch to which the AFA pollock cost recovery fee will
apply;
(B) The ex-vessel value of that catch; and
(C) The costs directly related to the management, data collection,
and enforcement of the AFA directed pollock fisheries.
(ii) Methodology. NMFS will use the following equations to
determine the AFA fee percentage: 100 x DPC/V, where:
(A) DPC = the direct program costs for the directed AFA pollock
fisheries for the most recent fiscal year (October 1 through September
30) with any adjustments to the account from payments received in the
previous year.
(B) V = total of the standard ex-vessel value of the catch subject
to the AFA fee liability for the current year.
(iii) Direct program costs will be calculated separately for:
(A) AFA inshore cooperatives;
(B) The AFA catcher/processor sector; and
(C) The AFA mothership cooperative.
(3) Publication--(i) General. NMFS will calculate and announce the
AFA fee percentages in a Federal Register notice by December 1 of the
year in which the Bering Sea pollock landings were made. AFA fee
percentages will be calculated separately for the AFA inshore
cooperatives, the AFA catcher/processor sector, and the AFA mothership
cooperative. NMFS will calculate the AFA fee percentages based on the
calculations described in paragraph (c)(2) of this section.
(ii) Effective period. NMFS will apply the calculated AFA fee
percentages to all Bering Sea directed pollock landings made between
January 1 and December 31 of the current year.
(4) Applicable percentage. A designated representative must use the
AFA fee percentage applicable at the time a Bering Sea directed pollock
landing is debited from an AFA pollock fishery allocation to calculate
the AFA fee liability for any retroactive payments for that landing.
(5) Fee liability determination. (i) Each AFA inshore cooperative,
the AFA mothership cooperative, and the AFA catcher/processor sector
will be subject to an AFA fee liability for any Bering Sea pollock
debited from its AFA pollock fishery allocation during a calendar year.
(ii) The AFA fee liability assessed to an AFA inshore cooperative
will be based on the proportion of the AFA fee liability of Bering Sea
pollock debited from that AFA inshore cooperative's AFA pollock fishery
allocation relative to all AFA inshore cooperatives during a calendar
year as determined by NMFS.
(iii) The AFA fee liability assessed to the AFA catcher/processor
sector will be based on the standard ex-vessel value of Bering Sea
pollock debited from the sector's AFA pollock fishery allocation during
a calendar year as determined by NMFS.
(iv) The AFA fee liability assessed to the AFA mothership
cooperative will be based on the proportion of the standard ex-vessel
value of Bering Sea pollock debited from the cooperative's AFA pollock
fishery allocation during a calendar year as determined by NMFS.
(v) NMFS will provide a fee liability summary letter to each
designated representative by December 1 of each year. The summary will
explain the AFA fee liability determination including the current fee
percentage and details of Bering Sea pollock pounds debited from the
AFA pollock fishery allocation by permit, species, date, and prices.
(d) Underpayment of fee liability--(1) No AFA inshore cooperative
will receive its AFA pollock fishery allocation until the cooperative's
designated representative submits full payment of the cooperative's AFA
fee liability.
(2) The AFA mothership cooperative will not receive its AFA pollock
fishery allocation until the cooperative's designated representative
submits full payment of that cooperative's AFA fee liability.
(3) The AFA catcher/processor sector will not receive its Bering
Sea pollock allocation until the entity's designated representative
defined at Sec. 679.21(f)(8)(i)(C) submits full payment of the AFA fee
liability at the time of a Bering Sea pollock landing, except the
Regional Administrator may release to the AFA catcher/processor sector
a portion of the AFA catcher/processor sector's Bering Sea pollock
allocation
[[Page 170]]
that is equal to the portion of the fee liability submitted by the
entity's designated representative.
(4) If the designated representative fails to submit full payment
for the AFA fee liability by the date described in paragraph (a)(4) of
this section, the Regional Administrator, at any time thereafter, may
send an IAD to the designated representative stating that the estimated
fee liability, based on the information submitted by the designated
representative, is the AFA fee liability due from the designated
representative.
(5) If the designated representative fails to submit full payment
for the AFA fee liability by the date described at paragraph (a)(4) of
this section, the Regional Administrator will not issue a Bering Sea
pollock allocation to that AFA cooperative or AFA sector for the
following calendar year, except as provided in paragraph (d)(3) of this
section.
(6) Upon final agency action determining that the designated
representative has not submitted the AFA fee liability payment, the
Regional Administrator may continue to not issue a Bering Sea pollock
allocation for that AFA cooperative or AFA sector for any subsequent
calendar years until NMFS receives the unpaid fees. If payment is not
received by the 30th day after the final agency action, the agency may
pursue collection of the unpaid fees.
(e) Over payment. Upon issuance of final agency action, payment
submitted to NMFS in excess of the AFA fee liability determined to be
due by the final agency action will be returned to the designated
representative unless the designated representative requests the agency
to credit the excess amount against a cooperative's or sector's future
AFA fee liability.
(f) Appeals. The designated representative who receives an IAD for
incomplete payment of an AFA fee liability may appeal under the appeals
procedures set out at 15 CFR part 906.
(g) Annual report. Each year, NMFS will publish a report describing
the AFA Cost Recovery Fee Program.
0
10. Add Sec. 679.67 to subpart F to read as follows:
Sec. 679.67 Aleutian Islands pollock cost recovery.
(a) Cost recovery fee program for Aleutian Islands pollock--(1)
Representative. The person identified as the representative, designated
by the Aleut Corporation, at the time of an Aleutian Islands pollock
landing is responsible for submitting all cost recovery fees.
(2) Fee collection. The designated representative (as identified
under paragraph (a)(1) of this section) is responsible for submitting
the cost recovery payment for all Aleutian Islands pollock landings
made under the authority of Aleut Corporation.
(3) Payment. (i) Payment due date. The designated representative
(as identified under paragraph (a)(1) of this section) must submit all
cost recovery fee payment(s) to NMFS at the address provided in
paragraph (a)(3)(iii) of this section no later than December 31 of the
calendar year in which the Aleutian Islands pollock landings were made.
(ii) Payment recipient. Make electronic payment payable to NMFS.
(iii) Payment address. Submit payment and related documents as
instructed on the fee submission form. Payments must be made
electronically through the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov. Instructions for electronic payment will be
made available on both the payment Web site and a fee liability summary
letter mailed to the designated representative of the Aleut
Corporation.
(iv) Payment method. Payment must be made electronically in U.S.
dollars by automated clearing house, credit card, or electronic check
drawn on a U.S. bank account.
(b) Aleutian Islands pollock standard ex-vessel value determination
and use--(1) General. The designated representative of the Aleut
Corporation must use the Aleutian Islands pollock standard price
determined by NMFS under paragraph (b)(2) of this section.
(2) Aleutian Islands pollock standard price--(i) General. Each year
the Regional Administrator will publish the Aleutian Islands pollock
standard price in the Federal Register by December 1 of the year in
which the landings were made. The Aleutian Islands pollock standard
price will be described in U.S. dollars per Aleutian Islands pollock
equivalent pound for Aleutian Islands pollock landings during the
current calendar year.
(ii) Effective duration. The Aleutian Islands pollock standard
price published by NMFS shall apply to all Aleutian Islands pollock
landings during the current calendar year.
(iii) Determination. NMFS will calculate the Aleutian Islands
pollock standard price to reflect, as closely as possible, the standard
price of Aleutian Islands pollock landings based on information
provided in the COAR for the previous year, as described in Sec.
679.5(p). The Regional Administrator will base Aleutian Islands pollock
standard price on the following information:
(A) Landed pounds of Aleutian Islands pollock;
(B) Total ex-vessel value of Aleutian Islands pollock; and
(C) Price adjustments, including retroactive payments.
(c) Aleutian Islands pollock fee percentage--(1) Established
percentage. The Aleutian Islands pollock fee percentage is the amount
as determined by the factors and methodology described in paragraph
(c)(2) of this section. This amount will be announced by publication in
the Federal Register in accordance with paragraph (c)(3) of this
section. This amount must not exceed 3.0 percent pursuant to 16 U.S.C.
1854(d)(2)(B).
(2) Calculating fee percentage value. Each year NMFS will calculate
and publish the fee percentage according to the following factors and
methodology:
(i) Factors. NMFS will use the following factors to determine the
fee percentage:
(A) The catch to which the Aleutian Islands pollock cost recovery
fee will apply;
(B) The ex-vessel value of that catch; and
(C) The costs directly related to the management, data collection,
and enforcement of the Aleutian Islands directed pollock fishery.
(ii) Methodology. NMFS will use the following equations to
determine the fee percentage: 100 x DPC/V, where:
(A) DPC = the direct program costs for the Aleutian Islands
directed pollock fishery for the most recent fiscal year (October 1
through September 30) with any adjustments to the account from payments
received in the previous year.
(B) V = total of the standard ex-vessel value of the catch subject
to the Aleutian Islands pollock fee liability for the current year.
(3) Publication--(i) General. NMFS will calculate and announce the
fee percentage in a Federal Register notice by December 1 of the year
in which the Aleutian Islands pollock landings were made. NMFS will
calculate the Aleutian Islands pollock fee percentage based on the
calculations described in paragraph (c)(2) of this section.
(ii) Effective period. NMFS will apply the calculated Aleutian
Islands pollock fee percentage to all Aleutian Islands pollock landings
made between January 1 and December 31 of the current year.
(4) Applicable percentage. The designated representative must use
the Aleutian Islands pollock fee percentage applicable at the time an
Aleutian Islands pollock landing is debited from the Aleutian Islands
directed pollock fishery allocation to calculate the Aleutian Islands
pollock fee liability for any retroactive payments for that pollock.
[[Page 171]]
(5) Fee liability determination. (i) The Aleut Corporation will be
subject to a fee for any Aleutian Islands pollock debited from the
Aleutian Islands directed pollock fishery allocation during a calendar
year.
(ii) NMFS will provide a fee liability summary letter to the Aleut
Corporation by December 1 of each year. The summary will explain the
fee liability determination including the current fee percentage, and
details of Aleutian Islands pollock pounds debited from the Aleutian
Islands directed pollock fishery allocation by permit, species, date,
and prices.
(d) Underpayment of fee liability--(1) The Aleut Corporation will
not receive its Aleutian Islands directed pollock fishery allocation
until the Aleut Corporation's designated representative submits full
payment of the Aleut Corporation's cost recovery fee liability.
(2) If the Aleut Corporation's designated representative fails to
submit full payment for Aleutian Islands pollock fee liability by the
date described in paragraph (a)(3) of this section, the Regional
Administrator may at any time thereafter send an IAD to the Aleut
Corporation's designated representative stating that the estimated fee
liability, based on the information submitted by the designated
representative, is the Aleutian Islands pollock fee liability due from
the Aleut Corporation.
(3) If the Aleut Corporation's designated representative fails to
submit full payment by the Aleutian Islands pollock fee liability
payment deadline described at paragraph (a)(3) of this section, the
Regional Administrator will not issue the Aleutian Islands directed
pollock fishery allocation to the Aleut Corporation for that calendar
year.
(4) Upon final agency action determining that the Aleut Corporation
has not paid its Aleutian Islands pollock fee liability, the Regional
Administrator may continue to not issue the Aleutian Islands directed
pollock fishery allocation for any subsequent calendar years until NMFS
receives the unpaid fees. If payment is not received by the 30th day
after the final agency action, the agency may pursue collection of the
unpaid fees.
(e) Over payment. Upon issuance of final agency action, payment
submitted to NMFS in excess of the Aleutian Islands pollock fee
liability determined to be due by the final agency action will be
returned to the Aleut Corporation unless its designated representative
requests the agency to credit the excess amount against the
cooperative's future Aleutian Islands pollock fee liability.
(f) Appeals. A representative of the Aleut Corporation who receives
an IAD for incomplete payment of an Aleutian Islands pollock fee may
appeal under the appeals procedures set out at 15 CFR part 906.
(g) Annual report. Each year, NMFS will publish a report describing
the Aleutian Islands Pollock Cost Recovery Fee Program.
0
11. In Sec. 679.91:
0
a. Revise paragraphs (b)(4)(vii) and (h)(3)(xiv); and
0
b. Add paragraph (h)(3)(xx) to read as follows:
Sec. 679.91 Amendment 80 Program annual harvester privileges.
* * * * *
(b) * * *
(4) * * *
(vii) Copy of membership agreement or contract. Attach a copy of
the membership agreement or contract that includes terms that list:
(A) How the Amendment 80 cooperative intends to catch its CQ; and
(B) The obligations of Amendment 80 QS holders who are members of
an Amendment 80 cooperative to ensure the full payment of Amendment 80
fee liabilities that may be due.
* * * * *
(h) * * *
(3) * * *
------------------------------------------------------------------------
------------------------------------------------------------------------
* * * * * * *
(xiv) Does an Amendment 80 Yes, an Amendment 80 cooperative
cooperative need a membership must have a membership agreement or
agreement or contract? contract. A copy of this agreement
or contract must be submitted to
NMFS with the application for CQ.
The membership agreement or
contract must specify:
(A) How the Amendment 80 cooperative
intends to catch its CQ; and
(B) The obligations of Amendment 80
QS holders, who are members of an
Amendment 80 cooperative, to ensure
the full payment of Amendment 80
fee liabilities that may be due.
* * * * * * *
(xx) Is there a requirement that Yes, see Sec. 679.95 for the
an Amendment 80 cooperative pay provisions that apply.
Amendment 80 cost recovery fees?
------------------------------------------------------------------------
* * * * *
0
12. Add Sec. 679.95 to subpart H to read as follows:
Sec. 679.95 Amendment 80 Program cost recovery.
(a) Cost recovery fee program for Amendment 80--(1) Who is
responsible? The person designated as the Amendment 80 cooperative
representative at the time of an Amendment 80 CQ landing must comply
with the requirements of this section, notwithstanding:
(i) Subsequent transfer of Amendment 80 CQ or Amendment 80 QS held
by Amendment 80 cooperative members;
(ii) Non-renewal of an Amendment 80 CQ permit; or
(iii) Changes in the membership in an Amendment 80 cooperative,
such as members joining or departing during the relevant year, or
changes in the amount of Amendment 80 QS holdings of those members.
(2) Fee collection. Each Amendment 80 cooperative representative is
responsible for submitting the cost recovery payment for Amendment 80
CQ landings made under the authority of its Amendment 80 CQ permit.
(3) Payment--(i) Payment due date. An Amendment 80 cooperative
representative must submit all Amendment 80 fee liability payment(s) to
NMFS at the address provided in paragraph (a)(3)(iii) of this section
no later than December 31 of the calendar year in which the Amendment
80 CQ landings were made.
(ii) Payment recipient. Make electronic payment payable to NMFS.
(iii) Payment address. Submit payment and related documents as
instructed on the fee submission form. Payments must be made
electronically through the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov. Instructions for electronic payment will be
made available on both the payment Web site and a fee liability summary
letter mailed to the Amendment 80 CQ permit holder.
[[Page 172]]
(iv) Payment method. Payment must be made electronically in U.S.
dollars by automated clearing house, credit card, or electronic check
drawn on a U.S. bank account.
(b) Amendment 80 standard ex-vessel value determination and use--
(1) General. An Amendment 80 cooperative representative must use the
Amendment 80 standard prices determined by NMFS under paragraph (b)(2)
of this section.
(2) Amendment 80 standard prices--(i) General. Each year the
Regional Administrator will publish Amendment 80 standard prices in the
Federal Register by December 1 of the year in which the Amendment 80
species landings were made. The standard prices will be described in
U.S. dollars per Amendment 80 equivalent pound for Amendment 80 species
landings made by Amendment 80 CQ permit holders during the current
calendar year.
(ii) Effective duration. The Amendment 80 standard prices published
by NMFS will apply to all Amendment 80 species landings made by an
Amendment 80 CQ permit holder during that calendar year.
(iii) Determination. NMFS will calculate the Amendment 80 standard
prices for Amendment 80 species based on the following information:
(A) Pacific cod. NMFS will use the standard prices calculated for
Pacific cod based on information provided in the Pacific Cod Ex-vessel
Volume and Value Report described at Sec. 679.5(u)(1).
(B) Amendment 80 species other than Pacific cod. (1) The Regional
Administrator will base Amendment 80 standard prices for all Amendment
80 species other than Pacific cod on the First Wholesale Volume and
Value reports specified in Sec. 679.5(u)(2).
(2) The Regional Administrator will establish Amendment 80 standard
prices for all Amendment 80 species other than Pacific cod on an annual
basis; except the Regional Administrator will establish a first
Amendment 80 standard price for rock sole for all landings from January
1 through March 31, and a second Amendment 80 standard price for rock
sole for all landings from April 1 through December 31.
(3) The average first wholesale product prices reported on the
First Wholesale Volume and Value reports, specified in Sec.
679.5(u)(2), will be multiplied by 0.4 to obtain a proxy for the ex-
vessel prices of Amendment 80 species other than Pacific cod.
(c) Amendment 80 fee percentage--(1) Established percentage. The
Amendment 80 fee percentage is the amount as determined by the factors
and methodology described in paragraph (c)(2) of this section. This
amount will be announced by publication in the Federal Register in
accordance with paragraph (c)(3) of this section. This amount must not
exceed 3.0 percent pursuant to 16 U.S.C. 1854(d)(2)(B).
(2) Calculating fee percentage value. Each year NMFS will calculate
and publish the fee percentage according to the following factors and
methodology:
(i) Factors. NMFS will use the following factors to determine the
fee percentage:
(A) The catch to which the Amendment 80 cost recovery fee will
apply;
(B) The ex-vessel value of that catch; and
(C) The costs directly related to the management, data collection,
and enforcement of the Amendment 80 Program.
(ii) Methodology. NMFS will use the following equations to
determine the fee percentage: 100 x DPC/V, where:
(A) DPC = the direct program costs for the Amendment 80 Program for
the most recent fiscal year (October 1 through September 30) with any
adjustments to the account from payments received in the previous year.
(B) V = total of the standard ex-vessel value of the landings
subject to the Amendment 80 fee liability for the current year.
(3) Publication--(i) General. NMFS will calculate and announce the
Amendment 80 fee percentage in a Federal Register notice by December 1
of the year in which the Amendment 80 landings were made. NMFS will
calculate the Amendment 80 fee percentage based on the calculations
described in paragraph (c)(2) of this section.
(ii) Effective period. NMFS will apply the calculated Amendment 80
fee percentage to Amendment 80 CQ landings made between January 1 and
December 31 of the same year.
(4) Applicable percentage. The Amendment 80 CQ permit holder must
use the Amendment 80 fee percentage applicable at the time an Amendment
80 species landing is debited from an Amendment 80 CQ allocation to
calculate the Amendment 80 fee liability for any retroactive payments
for that Amendment 80 species.
(5) Fee liability determination for an Amendment 80 CQ permit
holder. (i) Each Amendment 80 CQ permit holder will be subject to a fee
liability for any Amendment 80 species CQ debited from an Amendment 80
CQ allocation between January 1 and December 31 of the current year.
(ii) The Amendment 80 fee liability assessed to an Amendment 80 CQ
permit holder will be based on the proportion of the standard ex-vessel
value of Amendment 80 species debited from an Amendment 80 CQ permit
holder relative to all Amendment 80 CQ permit holders during a calendar
year as determined by NMFS.
(iii) NMFS will provide a fee liability summary letter to each
Amendment 80 CQ permit holder by December 1 of each year. The summary
will explain the fee liability determination including the current fee
percentage, and details of Amendment 80 species CQ pounds debited from
Amendment 80 CQ allocations by permit, species, date, and prices.
(d) Underpayment of fee liability--(1) No Amendment 80 cooperative
will receive its Amendment 80 CQ until the Amendment 80 CQ permit
holder submits full payment of an applicant's complete Amendment 80 fee
liability.
(2) If an Amendment 80 CQ permit holder fails to submit full
payment for its Amendment 80 fee by the date described in paragraph
(a)(3) of this section, the Regional Administrator may:
(i) At any time thereafter send an IAD to the Amendment 80
cooperative's representative stating that the Amendment 80 CQ permit
holder's estimated fee liability, based on information submitted by the
Amendment 80 cooperative's representative, is the Amendment 80 fee
liability due from the Amendment 80 CQ permit holder.
(ii) Disapprove any application to transfer Amendment 80 CQ to or
from the Amendment 80 CQ permit holder in accordance with Sec.
679.91(g).
(3) If an Amendment 80 cooperative representative fails to submit
full payment by the Amendment 80 fee payment deadline described at
paragraph (a)(3) of this section:
(i) The Regional Administrator will not issue a Amendment 80 CQ
permit to that Amendment 80 cooperative for the following calendar
year; and
(ii) The Regional Administrator will not issue Amendment 80 CQ
based on the Amendment 80 QS held by the members of that Amendment 80
cooperative to any other CQ permit for that calendar year.
(4) Upon final agency action determining that an Amendment 80 CQ
permit holder has not paid his or her Amendment 80 fee, the Regional
Administrator may continue to not issue an Amendment 80 CQ permit for
any subsequent calendar years until NMFS receives the unpaid fees. If
payment is not received by the 30th day after the
[[Page 173]]
final agency action, the agency may pursue collection of the unpaid
fees.
(e) Over payment. Upon issuance of final agency action, payment
submitted to NMFS in excess of the Amendment 80 fee determined to be
due by the final agency action will be returned to the Amendment 80
cooperative unless the Amendment 80 cooperative's representative
requests the agency to credit the excess amount against the Amendment
80 CQ permit holder's future Amendment 80 fee.
(f) Appeals. An Amendment 80 cooperative representative who
receives an IAD for incomplete payment of an Amendment 80 fee may
appeal under the appeals procedures set out a 15 CFR part 906.
(g) Annual report. Each year, NMFS will publish a report describing
the Amendment 80 Cost Recovery Fee Program.
[FR Doc. 2015-33096 Filed 1-4-16; 8:45 am]
BILLING CODE 3510-22-P