[Federal Register Volume 64, Number 247 (Monday, December 27, 1999)]
[Proposed Rules]
[Pages 72302-72310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33198]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 991207325-9325-01; I.D. 100699A]
RIN 0648-AJ52
Fisheries in the Exclusive Economic Zone Off Alaska; A Cost
Recovery Program for the Individual Fishing Quota Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule, request for comments.
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SUMMARY: NMFS proposes regulations to implement cost recovery for the
Individual Fishing Quota (IFQ) program for fixed gear halibut and
sablefish fisheries in waters in and off of Alaska (IFQ Program).
Section 304(d) of the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act) requires the Secretary of
Commerce (Secretary) to collect fees to recover actual costs incurred
for Federal management and enforcement of these IFQ fisheries. This
action is intended to collect such fees.
DATES: Comments on the proposed rule must be received at the following
address not later than January 26, 2000.
ADDRESSES: Comments may be sent to Sue Salveson, Assistant Regional
[[Page 72303]]
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS,
P.O. Box 21668 Juneau, AK 99802-1668, Attn: Lori J. Gravel. Hand
deliveries or courier deliveries of comments may be sent to the Federal
Building, 709 West 9th Street, Room 453, Juneau, AK 99801.
Copies of the environmental assessment/regulatory impact review/initial
regulatory flexibility analysis (EA/RIR/IRFA) prepared for this action
may be obtained from the address provided here. Send comments on
collection-of-information requirements to the same address and to the
Office of Information and Regulatory Affairs (OIRA), Office of
Management and Budget (OMB), Washington, DC 20503 (Attn: NOAA Desk
Officer). Comments will not be accepted if submitted via
e-mail or Internet.
FOR FURTHER INFORMATION CONTACT: Dr. John T. Sproul, 907-586-7228.
SUPPLEMENTARY INFORMATION: Section 304(d)(2)(A) of the Magnuson-Stevens
Act requires the Secretary to ``collect a fee to recover the actual
costs directly related to the management and enforcement of any * * *
individual fishing quota program.'' Section 304(d)(2)(B) of the
Magnuson-Stevens Act specifies an upper limit on these fees, when the
fees must be collected, and where the fees must be deposited. Section
303(d)(4) of the Magnuson-Stevens Act allows NMFS to reserve up to 25
percent of the fees collected for use in an IFQ loan program to aid in
financing the purchase of IFQ or quota share (QS) by entry-level and
small-vessel fishermen.
The proposed rule would recover costs for the IFQ Program only.
NMFS intends to implement cost recovery for the Community Development
Quota (CDQ) program through separate rulemaking.
The Magnuson-Stevens Act specifies the following with respect to
the imposition of IFQ cost-recovery fees:
1. Fees must recover actual costs directly related to actual
enforcement and management of the IFQ Program;
2. Fees must not exceed 3 percent of ex-vessel value;
3. Fees are in addition to any other fees charged under the
Magnuson-Stevens Act;
4. With the exception of money reserved for the IFQ loan program,
fees must be deposited in the Limited Access System Administrative Fund
(LASAF) in the U.S. Treasury; and
5. Fees must be collected at either the time of a legal landing of
halibut or sablefish, filing of a landing report, or sale of such fish
during a fishing season or in the last quarter of the calendar year in
which the fish is harvested.
Background
NMFS, Alaska Region, administers the IFQ Program. The IFQ Program
is a limited access system authorized by section 303(b) of the
Magnuson-Stevens Act and the Northern Pacific Halibut Act of 1982. NMFS
implemented the IFQ Program in March 1995. Regulations implementing the
IFQ Program are set forth at 50 CFR part 679.
In 1998, NMFS developed this IFQ cost recovery proposal in
accordance with the Magnuson-Stevens Act and with participation by the
IFQ/CDQ Fee Collection Committee (Committee) comprised of stakeholder
representatives appointed by the North Pacific Fishery Management
Council (Council), the Council's Advisory Panel (AP), the full Council,
and the general public.
In August 1998, NMFS identified an initial preferred alternative
for the proposal, which included: (1) imposing on IFQ permit holders
the responsibility of collecting and submitting IFQ fees to NMFS, (2)
requiring registered buyers to provide NMFS with additional value and
volume reports for developing standard prices, and (3) basing cost
recovery fees on ex-vessel value as determined by the standard prices
developed by NMFS.
NMFS presented a status report of the proposal to the Council and
AP at their meetings in October 1998. At that time, the AP expressed
concern that standard prices could differ greatly from the actual
prices fishermen received for their fish. If the standard price were
greater than the actual price received by fishermen, the use of NMFS
standard prices would inflate the fees. The AP and Council recommended
that NMFS revise the proposal to include a mechanism for basing fees on
actual ex-vessel values. The Council also recommended that the proposal
include an appeals process.
In response to these recommendations, NMFS has designed this
proposed rule to require payment of fees based on standard ex-vessel
value unless the IFQ permit holder can demonstrate a different actual
ex-vessel value. The proposed rule includes an appeals process. The
proposed rule would require IFQ permit holders to collect and submit
fees associated with IFQ halibut and IFQ sablefish landings. It would
also require IFQ registered buyers to submit information on the value
and volume of purchased IFQ landings.
Cost Recovery Program Description
An IFQ permit holder would incur a cost recovery fee liability for
every pound of IFQ halibut and sablefish that he or she lands. The IFQ
permit holder would be responsible for self-collecting his or her own
fee liability for all his or her IFQ halibut and IFQ sablefish
landings. The IFQ permit holder would be responsible for submitting
this payment to NMFS on or before the due date of January 31 following
the year in which the landings were made. The dollar amount of the fee
due would be determined by multiplying the IFQ fee percentage
(approximately 3 percent) by the ex-vessel value of each IFQ landing
made on a permit and summing the totals of each permit (if more than
one).
Fee Percentage
Three percent of the ex-vessel value of fish harvested under an IFQ
program is the maximum fee amount allowed by section 304(d)(2)(B) of
the Magnuson-Stevens Act. This proposed rule would allow the Regional
Administrator to reduce the fee percentage if actual management and
enforcement costs could be recovered through a lesser percentage. NMFS
will not know the actual annual costs of the IFQ Program until after
the end of the Federal fiscal year (September 30). After that time, the
Regional Administrator could reduce the fee percentage for that year to
reflect more closely the actual IFQ-related management and enforcement
costs for the past Federal fiscal year. However, in order to budget,
fishermen need to know at the time of sale the maximum fee percentage
that could apply to their IFQ landings made from March (season opening)
through September (Federal fiscal year-end). The proposed rule would
set the applicable fee percentage at 3 at the start of each year but
would allow the Regional Administrator to reduce the fee percentage if
management and enforcement costs could be recovered for a lessor
percentage. During the development of this proposed rule,
representatives of the halibut and sablefish fisheries suggested that
many IFQ fishermen experience constraints in capital availability
during the fishing season. If NMFS were to set a low percentage at the
beginning of the fishing season that subsequently had to be increased,
small-scale fishermen whose budgets were based on the lower percentage
could experience negative economic consequences. Because fees are not
due until January 31 of the following year, NMFS believes that for
budget purposes it is preferable to establish a 3-percent fee that
could be adjusted downward, based upon certain types of information,
between October and December to reflect the actual costs incurred
during the previous Federal fiscal year.
[[Page 72304]]
NMFS seeks public comment on the provision in the proposed rule to
establish an initially ``high'' fee (e.g., 3 percent) that could be
adjusted downward by the Regional Administrator in mid-season. NMFS
requests public comment comparing this proposed approach with an
alternative that would establish an initially ``low'' fee percentage
(e.g., 2 percent) that could be adjusted upward by the Regional
Administrator in mid-season.
NMFS would encourage IFQ permit holders to set aside the amount of
the fees throughout the fishing year in order to facilitate a lump sum
payment by January 31 of the following calendar year. Early payments
would be allowed but would not relieve a permit holder of associated
reporting requirements.
Calculating Ex-vessel Value
The ex-vessel value of an IFQ landing would equal the sum of all
payments of monetary worth made to fishermen for the sale of the fish.
This would include any retro-payments (e.g., bonuses, delayed partial
payments, post-season payments) made to the IFQ permit holder for
previously landed halibut or sablefish. Retro-payments would be part of
the ex-vessel value and as such have a fee liability. If they were
received after the initial payment, but during the same calendar year,
the cost recovery fee for those retro-payments also would be due by the
following January 31. If retro-payments were received by IFQ permit
holders during the year following the IFQ fishing season when those
fish were landed, then cost recovery fees associated with those post-
season retro-payments would be due the next January 31.
Ex-vessel Value: Standard Versus Actual
Throughout this discussion, ``value'' refers to the worth, in U.S.
dollars, of any amount of landed IFQ halibut or IFQ sablefish as
determined by the sale, or potential economic return for the sale, of
those fish. ``Price'' is the worth in U.S. dollars, for 1 lb (0.45 kg)
of landed IFQ fish. Therefore, in this context, value and price only
mean the same thing when describing the worth of 1 lb (0.45 kg) of IFQ
fish when sold.
For purposes of calculating IFQ cost recovery fees, NMFS would
distinguish between two types of ex-vessel value: ``actual ex-vessel
value'' and ``standard ex-vessel value.'' ``Actual ex-vessel value''
would be the amount of money an IFQ permit holder received as payment
for his or her IFQ fish sold. This proposed rule would establish
``standard ex-vessel values'' as the default values on which to base
fee liability calculations. However, IFQ permit holders would have the
option of using ``actual ex-vessel value'' if they could satisfactorily
document those values.
Fees Based on Standard Ex-vessel Value
In order to calculate standard ex-vessel values, NMFS would require
IFQ registered buyers operating as shoreside processors to submit
reports on the value and volume of IFQ landings. From the information
contained in these reports, NMFS would extract standard prices, broken
down by species, port or port group, and date. NMFS would use these
standard prices to calculate standard ex-vessel values pursuant to the
process described below.
IFQ Buyer Report
An IFQ registered buyer that also operates as a shoreside processor
that receives and purchases IFQ fish landings would be required to
complete and submit to NMFS by October 15 each year an IFQ registered
buyer report (IFQ Buyer Report) that contained information regarding
volume and value of IFQ landings by month, port, and IFQ registered
buyer. NMFS would use information provided in these report to determine
IFQ standard prices.
The IFQ Buyer Report would be based upon a reporting period from
October 1 of the previous year to September 30 of the current year in
order to allow NMFS to calculate standard prices and ex-vessel values
before December 15. The information entered on the IFQ Buyer Report for
January and February would relate to retro-payments made during those
months by the registered buyer for IFQ landings that actually occurred
during the previous calendar year. Similarly, information provided on
the IFQ Buyer Report for October, November, and December would pertain
to IFQ landings made in the calendar year prior to the report's due
date (October 15).
These proposed new recordkeeping and reporting requirements are
specified in the proposed regulations at Sec. 679.5(1)(7).
NMFS Standard Price List
Based on the information received in the IFQ Buyers Report, NMFS
would annually calculate and publish in the Federal Register a list of
IFQ standard prices broken down by IFQ species, month, and port or port
group.
These standard prices would remain in effect until changed by the
Regional Administrator through publication in the Federal Register the
following year. The Regional Administrator would revise the standard
prices annually based on information regarding current volume and value
provided by IFQ registered buyers operating as shoreside processors.
The IFQ standard prices would be calculated by NMFS to reflect as
closely as practical the seasonal and regional variations in the actual
ex-vessel prices of IFQ species.
The information that would be reviewed by the Regional
Administrator to determine IFQ standard prices would include the
following:
(1) Landed pounds by species, port or port-group, and date;
(2) Total ex-vessel value by species, port or port-group, and date;
and
(3) Price adjustments based on retro-payments.
Estimated Fee Based on Standard Ex-vessel Value
Using the IFQ Buyer Report and NMFS standard prices, NMFS would
calculate standard ex-vessel values for all IFQ landings. Each year by
December 31, NMFS would send each IFQ permit holder a multi-paged IFQ
Fee Submission Form and a separate one-page IFQ Landing Summary and
Estimated Fee Liability Form. The multi-paged Fee Submission Form would
be completed by the IFQ permit holder. The one-page fee Estimate Form
would be completed by NMFS and would reflect NMFS' calculations of the
permit-holder's fee liability based on the amount of pounds landed and
NMFS' standard ex-vessel values.
The one-page Fee Estimate Form would specify the number of IFQ
pounds landed by species and area, the date of landing, the NMFS
standard price per pound for those landings, the calculated standard
ex-vessel value of the landings, the IFQ fee percentage, and the
estimated fee liability for such landed IFQ pounds. The Fee Estimate
Form would document standard ex-vessel values for all recorded IFQ
pounds landed, but not necessarily sold, to IFQ registered buyers such
as custom processed fish, fish sold by direct marketing, or take-home
fish. NMFS would use the appropriate published IFQ standard price(S) to
estimate the fee liability of landed IFQ pounds debited from each IFQ
permit.
NMFS would base its calculations on the amount of IFQ halibut and
IFQ sablefish landed in the pound weight equivalent deducted from an
IFQ permit holder's account. This would allow a direct correlation
between an IFQ permit holder's fee liability and the recorded number of
IFQ pounds landed under his or her IFQ permit(s) as monitored by NMFS'
Restricted Access
[[Page 72305]]
Management (RAM) Program. RAM would calculate the standard ex-vessel
value of a permit holder's landed IFQ fish by multiplying the
appropriate standard price (in U.S. dollars) by the weight (in IFQ
equivalent pounds) of those fish represented in the IFQ deduction from
his or her IFQ permit. The appropriate standard price used by NMFS on
the IFQ fee estimate form for a given amount of landed IFQ pounds would
be the price that corresponds to the same species, month of landing,
and landing location documented on the NMFS standard price list. The
IFQ permit holder could revise this estimated fee liability for each
IFQ landing, or sub-portion of a landing, based on evidence of actual
ex-vessel values.
Fees Based on Actual Ex-vessel Value
Under the proposed regulation, the actual value of landed IFQ fish
would be determined when halibut or sablefish are actually sold. The
IFQ permit holder could calculate his or her fee liability for landed
fish based on the actual monetary value received. The fee amount would
be the product (in U.S. Dollars) of multiplying that actual ex-vessel
value by the fee percentage (approximately 0.03). The IFQ permit holder
would document the calculations of fees based on actual ex-vessel value
on the IFQ Fee Submission Form provided by NMFS.
The following example shows how an IFQ permit holder would adjust
the calculation by NMFS of fee liabilities.
Example of Actual Ex-vessel Value Determination
An IFQ fisherman makes a landing of IFQ halibut at Sitka in June
that results in a debit of 1,000 lbs (0.35 metric tons) from his or her
halibut IFQ permit (1,000 IFQ equivalent pounds). He or she sells all
the fish, headed and gutted, directly to supermarkets or restaurants.
With an IFQ fee percentage of 3 percent and an actual price of $1 per
IFQ equivalent pound (IFQ lb.), the IFQ permit holder would bear a
total fee liability of $30.00 for the landing, determined as follows:
(IFQ Equivalent Pounds Sold X Price per IFQ lb) X Fee Percentage =
Permit Holder Fee
(1,000 IFQ lb X $1.00/IFQ lb) X 0.03 = $ 30.00
Submission Form and Payment
By January 31 of each year, each IFQ permit holder would be
required to complete the multi-page IFQ Fee Submission Form and submit
it to NMFS along with the fees due.
Payment Compliance
An IFQ permit holder who has incurred a fee liability would be
required to pay the fee to NMFS by January 31 of the year following the
calendar year in which the landing was made.
If an IFQ permit holder has made a timely payment to NMFS of an
amount less than the fee liability NMFS estimated, the IFQ permit
holder has the burden of demonstrating that the fee amount submitted is
correct. If, upon preliminary review of the accuracy and completeness
of a fee payment and the Fee Submission Form, NMFS determines the IFQ
permit holder has not paid a sufficient amount, NMFS would notify the
IFQ permit holder by letter. NMFS would explain the discrepancy and the
IFQ permit holder would have 30 days to either pay the remaining amount
that NMFS has determined should be paid or provide evidence that the
amount paid is correct. If the IFQ permit holder submits evidence in
support of his or her payment, NMFS will evaluate it and, if there is
any remaining disagreement as to the appropriate IFQ fee, prepare an
Initial Administrative Determination (IAD). The IAD would set out the
facts, discuss those facts within the context of the relevant agency
policies and regulations, and make a determination as to the
appropriate disposition of the matter. An aggrieved IFQ permit holder
could appeal an IAD through the Office of Administrative Appeals in
NMFS as described in existing IFQ regulations (50 CFR 679.43). An IAD
that is appealed within 60 days of issuance to the Office of
Administrative Appeals in NMFS, would become a final agency action.
During the pendency of the appeal proceedings outlined here, the
following conditions would exist: The IFQ permit holder could not
transfer any QS and/or IFQ, and the IFQ permit holder could not receive
QS and/or IFQ by transfer. An IFQ permit holder could pay, under
protest, the disputed fee difference in order to avoid permit transfer
restrictions. If the final agency action determines that the IFQ permit
holder owes additional fees and if the IFQ permit holder has not paid
such fees, all IFQ permit(s) held by the IFQ permit holder will be
invalid until the required payment is received by NMFS. If NMFS does
not receive such payment within 30 days of the issuance of the final
agency action, NMFS would refer the matter to the appropriate
authorities within the U.S. Treasury for purposes of collection.
Limited Access System Administrative Fund (LASAF)
Most of the IFQ fees collected would be deposited in the LASAF
established in the U.S. Treasury. Up to 25 percent could be deposited
separately in the U.S. Treasury and made available to cover the costs
of the IFQ loan program, as required by paragraph 304(d)(2)(C) of the
Magnuson-Stevens Act. Separate accounts would be created within the
LASAF to ensure that the funds from the IFQ cost recovery are used only
to pay for the actual costs directly related to the management and
enforcement of the IFQ Program.
Annual Report
NMFS annually would publish a public report about the performance
of the IFQ cost recovery. The annual report, which could be included
with other reports on the performance of the IFQ Program, would provide
information regarding the amount of the fees received by NMFS, the
disposition of the fees, the status of the IFQ account in the LASAF,
and the IFQ Program costs for the previous year.
Classification
NMFS prepared an EA/RIR/IRFA for this proposed rule that describes
the management background, the purpose and need for action, the
management action alternatives, and the environmental and socio-
economic impacts of the alternatives. A copy of the EA/RIR/IRFA can be
obtained from NMFS (see ADDRESSES). A summary of the IRFA follows.
As amended October 1996, the Magnuson-Stevens Act requires the
Secretary to impose a fee to recover the actual management and
enforcement costs of the Alaska IFQ Program. The objective of
developing the proposal for IFQ cost recovery is to collect revenue
from fishermen participating in the IFQ Program to help recover the
costs incurred by the Federal government as a result of the management
and enforcement of the IFQ Program.
The proposed rule would apply to persons who possess and use IFQ
Registered Buyer Permits or IFQ Permits (fishermen). IFQ registered
buyer permit holders who do not operate as shoreside processors or
those IFQ permit holders who do not land IFQ fish (i.e., possess
unfished permits) would not be subject to this proposed rule. In 1998,
approximately 9 percent of IFQ pounds available remained unfished by
the end of the season. As for IFQ registered buyers, generally, fewer
than 40 percent of those who held IFQ Registered Buyer Permits actually
reported landings (i.e.,
[[Page 72306]]
active buyer permit users). In addition, imposition of the proposed
cost recovery fees could indirectly impact the income of IFQ crew
members if IFQ permit holders reduce the income to members of their
crews due to the cost recovery fees. Detailed figures for the number of
IFQ crew members are not available.
The actions being proposed could directly affect two types of
registered small entities as defined by the Small Business
Administration: (1) IFQ registered buyers who operate as shoreside
processors and purchase IFQ halibut or sablefish from IFQ permit
holders, and (2) halibut and sablefish IFQ permit holders. By year-end
1998, 3,978 persons held one or more IFQ permits (fishermen) and
reported landings of at least 1 lb (0.45 kg) of IFQ fish. Also in 1998,
NMFS issued 859 IFQ registered buyer permits, but only 309 were active
IFQ registered buyers. Only 79 of the active IFQ registered buyers
operated as shoreside processors that purchased IFQ halibut or
sablefish. The 79 IFQ registered buyers identified themselves in 1998
as shoreside processors, and would be the only type of IFQ registered
buyers regulated under the proposed action. The number of IFQ permits
and IFQ registered buyer permits has decreased each year since 1995
when the program was initiated and is expected to stabilize near 1998
levels. For purposes of the IFRA, all 79 IFQ permits holders are
considered small entities. Therefore, the total number of small
entities that this rule would apply to IFQ registered buyers and permit
holders would be expected to be equal to or less than 4,057. This
proposed rule would impose new Recordkeeping and reporting
requirements. These are discussed below in the context of the Paperwork
Reduction Act burden.
A broad variety of alternatives was considered in the development
of the proposed regulations for IFQ cost recovery. The alternatives
were considered in the context of combining various options associated
with a specific set of necessary program elements. Some of the
necessary program elements include the scope of the IFQ cost recovery
regulations; identification of the IFQ fishery; the annual fee
percentage value; the IFQ fish subject to the IFQ cost recovery fee;
the method used to determine ex-vessel values of IFQ halibut and IFQ
sablefish landings; the method used to establish standard ex-vessel
prices for IFQ halibut and IFQ sablefish; the methods of accounting for
post-season ex-vessel price adjustments and other corrections to ex-
vessel value; IFQ fee collection and submission mechanisms and
schedules; and the implementation date.
In selecting the preferred alternative, NMFS incorporated many
elements designed to minimize negative impacts on small entities.
1. The fee would apply only to IFQ halibut and sablefish landings,
and not to all species landed by IFQ fishermen.
2. Fishermen would be able to choose whether to use actual or
standard ex-vessel value of their IFQ landings whenever possible.
3. Standard prices would be primarily based on current year ex-
vessel prices rather than previous year ex-vessel prices, and would be
refined to represent ex-vessel prices by species, by month, and by
port-group.
4. Registered buyers and IFQ permit holders would be required to
submit recordkeeping and reporting information only once a year, rather
than multiple mid-season submissions.
NMFS also considered the alternative of not implementing an IFQ
cost recovery (status quo). The status quo alternative would minimize
economic impacts on small entities in that no new fee would be imposed.
However, this alternative would not be in compliance with the Magnuson-
Stevens Act. Alternatives to the proposed recordkeeping and reporting
requirements could reduce economic impacts on small entities. For
instance, implementing an electronic reporting system could reduce the
burdens associated with filing annual reports; however, NMFS has not
ascertained whether electronic reporting would allow for comparable,
easily interpreted data and costs associated with acquiring new
software could counterbalance any benefits. NMFS also considered
extracting data from reports currently required of AGF&G. The ADF&G
reports would not provide all the necessary data in a sufficiently
timely manner. NMFS also considered an alternative that would not have
assessed a fee on retro-payments. While this approach would benefit
permit-holders who accepted retro-payments, it would not be acceptable
to those who do not. In addition, this approach might not comply with
the spirit of the statute to assess a fee on the full amount of
payment.
This proposed rule contains collection-of-information requirements
subject to the Paperwork Reduction Act (PRA). Authorization for the
proposed additional information collected under 50 CFR 679.5(l)(7) for
this IFQ cost recovery has been requested from Office of Management and
Budget (OMB). Notwithstanding any other provision of law, no person is
required to respond to and no person shall be subject to a penalty for
failure to comply with a collection of information subject to the
requirements of the PRA unless that collection of information displays
a currently valid OMB Control Number.
New recordkeeping and reporting requirements are proposed for the
IFQ permit holder and for the IFQ registered buyer operating as a
shoreside processor and buying halibut or sablefish landed under the
IFQ Program. The estimated time for an IFQ permit holder to complete
the IFQ payment submission form package is 2.0 hours per response. The
time required to complete the buyer report is estimated to be 2.0 hours
per report. The estimated response times shown include the time to
review the instructions, search existing sources, gather and maintain
the data needed, and complete and review the collection of information.
Public comment is sought regarding the necessity of the proposed
collection of information for the proper performance of the function of
the agency, including whether the information has practical utility;
the accuracy of the burden estimate; ways to enhance the quality,
utility, and clarity of the information to be collected; and ways to
minimize the burden of the collection, including the use of automated
collection techniques or other types of information technology. Send
comments regarding this burden estimate or any other aspect of this
collection of information, including suggestions for reducing this
burden, to NMFS and OMB (see ADDRESSES).
The President has directed Federal agencies to use plain language
in their communications with the public, including regulations. To
comply with that directive, we seek public comment on any ambiguity or
unnecessary complexity arising from the language used in this proposed
rule.
None of the alternatives discussed in the EA/RIR/IRFA are likely to
significantly affect the quality of the human environment, or are
expected to have a significant impact on endangered or threatened
species, or marine mammals.
This proposed rule has been determined to be not significant for
purposes of E.O. 12866.
List of Subjects in 50 CFR Part 679
Alaska, Cost recovery, Fees, Fisheries, IFQ, and Recordkeeping and
reporting requirements.
[[Page 72307]]
Dated: December 15, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set forth in the preamble, 50 CFR part 679 is
proposed to be amended to read as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
1. The authority citation for part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq.
2. In Sec. 679.2, definitions for listed terms are added in
alphabetical order to read as follows:
Sec. 679.2 Definitions
* * * * *
IFQ actual ex-vessel value means the U.S. dollar amount of all
compensation, monetary or non-monetary, including any IFQ retro-
payments received by an IFQ permit holder for the purchase of his or
her IFQ halibut or IFQ sablefish landing(s) described in terms of IFQ
equivalent pounds.
* * * * *
IFQ equivalent pound(s) means the weight amount, recorded in
pounds, for an IFQ landing and calculated as round weight for sablefish
and headed and gutted weight for halibut.
IFQ fee liability means that amount of money for IFQ cost recovery,
in U.S. dollars, owed to NMFS by an IFQ permit holder as determined by
multiplying the appropriate standard ex-vessel value or actual ex-
vessel value of his or her IFQ halibut or IFQ sablefish landing(s) by
the appropriate IFQ fee percentage applicable at the time the ex-vessel
value, or portion thereof, of such landing(s) is received by the IFQ
permit holder.
IFQ fee percentage means that positive number no greater than 3
percent (0.03) determined by the Regional Administrator and established
for use to calculate the IFQ cost recovery fee liability for an IFQ
permit holder.
* * * * *
IFQ permit holder means the person identified on an IFQ permit, at
the time a landing is made, as defined at Sec. 679.4(d)(3)(B).
IFQ program means the individual fishing quota program for the
fixed gear fisheries for Pacific halibut and sablefish in waters in and
off Alaska and governed by regulations under this part.
IFQ registered buyer means the person identified on a registered
buyer permit, as defined at Sec. 679.4(d)(2).
* * * * *
IFQ retro-payment means the U.S. dollar value of a payment,
monetary or non-monetary, made to an IFQ permit holder for the purchase
of IFQ halibut or IFQ sablefish landed at some previous time.
* * * * *
IFQ standard ex-vessel value means the total U.S. dollar amount of
IFQ halibut or IFQ sablefish landings as calculated by multiplying the
number of landed IFQ equivalent pounds by the appropriate IFQ standard
price determined by the Regional Administrator.
IFQ standard price means a price, expressed in U.S. dollars per IFQ
equivalent pound, for landed IFQ halibut and IFQ sablefish determined
annually by the Regional Administrator and documented in an IFQ
standard price list published by NMFS.
* * * * *
Limited Access System Administrative Fund (LASAF) means the
administrative account used for depositing cost recovery fee payments
into the U.S. Treasury as described in the Magnuson-Stevens Act under
section 304(d)(2)(C)(i) and established under section 305(h)(5)(B).
* * * * *
NMFS Person Identification Number means a unique number assigned by
NMFS to any person who applied for, or who has been issued, a
Certificate, License, or Permit under any fishery management program
administered by the Alaska Region for purposes of the NMFS/Alaska
Region Integrated Regional Data System.
* * * * *
3. In Sec. 679.4, revise paragraph (a)(5) and add paragraph (d)(7)
to read as follows:
Sec. 679.4 Permits.
(a) * * *
(5) Sanctions and denials. Procedures governing sanctions and
denials are found at subpart D of 15 CFR part 904. Such procedures are
required for enforcement purposes, not administrative purposes.
* * * * *
(d) * * *
(7) Validity. An IFQ permit issued under this part is valid only if
all IFQ fee liability of the IFQ permit holder that is due as a result
of final agency action has been paid as specified in Secs. 679.45 and
679.(e)(7)(ii).
* * * * *
4. In Sec. 679.5, add paragraph (l)(7) to read as follows:
Sec. 679.5 Recordkeeping and reporting.
* * * * *
(l) * * *
(7) IFQ cost recovery program --(i) IFQ buyer report.
(A) Applicability. An IFQ registered buyer that also operates as a
shoreside processor and receives and purchases IFQ landings of
sablefish or halibut annually must submit to NMFS a complete IFQ Buyer
Report as described in this paragraph (l) and as provided by NMFS for
each reporting period, as described at Sec. 679.5(1)(7)(i)(E), in which
the registered buyer receives IFQ fish.
(B) Due date. A complete IFQ Buyer Report must be postmarked or
received by the Regional Administrator not later than the October 15
following the reporting period in which the IFQ registered buyer
receives the IFQ fish.
(C) Information required. A complete IFQ Buyer Report must include
the following information:
(1) IFQ registered buyer identification, including:
(i) name,
(ii) registered buyer number,
(iii) social security number or tax identification number,
(iv) NMFS person identification number (if applicable),
(v) business address,
(vi) telephone number,
(vii) facsimile telephone number,
(viii) primary registered buyer activity,
(ix) other registered buyer activity, and
(x) landing port location;
(2) Pounds purchased and values paid. (i) The monthly total
weights, represented in IFQ equivalent pounds by IFQ species, that were
landed at the landing port location and purchased by the IFQ registered
buyer;
(ii) The monthly total gross ex-vessel value, in U.S. dollars, of
IFQ pounds, by IFQ species, that were landed at the landing port
location and purchased by the IFQ registered buyer;
(3) Value paid for price adjustments. (i) The monthly total U.S.
dollar amount of any IFQ retro-payments (correlated by IFQ species,
landing month(s), and month of payment) made in the current year to IFQ
permit holders for landings made during the previous calendar year;
(ii) Certification, including the signature of the individual
authorized by the IFQ registered buyer to submit the IFQ Buyer Report,
and date of signature.
(D) Submission address. A complete IFQ Buyer Report must be
received at the following address by mail or facsimile transmission:
Administrator Alaska Region, NMFS, Attn: RAM Program, P.O. Box 21668,
Juneau, AK 99802-1668, Facsimile: (907) 586-7354.
(E) Reporting period. The reporting period of the IFQ Buyer Report
shall
[[Page 72308]]
extend from October 1 through September 30 of the following year,
inclusive.
(ii) IFQ permit holder Fee Submission Form --(A) Applicability. An
IFQ permit holder who holds an IFQ permit against which a landing was
made must submit to NMFS a complete IFQ permit holder Fee Submission
Form provided by NMFS.
(B) Due date and submittal. A complete IFQ permit holder Fee
Submission Form must be postmarked or received by the Regional
Administrator not later than January 31 following the calendar year in
which any IFQ landing was made.
(C) Contents of an IFQ Fee Submission Form. For each of the
sections described below, a permit holder must provide the specified
information.
(1) Identification of the IFQ permit holder:
An IFQ permit holder with an IFQ landing must accurately record on
the identification section of the IFQ Fee Submission Form the following
information:
(i) the printed name of the IFQ permit holder;
(ii) the NMFS person identification number;
(iii) the social security number or tax ID number of the IFQ permit
holder;
(iv) the business mailing address of the IFQ permit holder; and
(v) the telephone and facsimile number (if available) of the IFQ
permit holder.
(2) IFQ landing summary and estimated fee liability
NMFS will provide to an IFQ permit holder an IFQ Landing Summary
and Estimated Fee Liability page as required by Sec. 679.45(a)(2). The
IFQ permit holder must either accept the accuracy of the NMFS estimated
fee liability associated with his or her IFQ landings for each IFQ
permit, or calculate a revised IFQ fee liability in accordance with
(2)(i) of this paragraph. The IFQ permit holder may calculate a revised
fee liability for all or part of his or her IFQ landings.
(i) Revised fee liability calculation. To calculate a revised fee
liability, an IFQ permit holder must multiply the IFQ percentage in
effect by either the IFQ actual ex-vessel value or the IFQ standard ex-
vessel of the IFQ landing. If parts of the landing have different
values, the permit holder must apply the appropriate values to the
different parts of the landings.
(ii) Documentation. If NMFS requests in writing that a permit
holder submit documentation establishing the factual basis for a
revised IFQ fee liability, the permit holder must submit adequate
documentation by the 30th day after the date of such
request.
(3) Fee calculation section --(i) Information required. An IFQ
permit holder with an IFQ landing must record the following information
on the Fee Calculation page: The name of the IFQ permit holder; the
NMFS person identification number; the fee liability amount due for
each IFQ permit he or she may hold; the IFQ permit number corresponding
to such fee liability amount(s) due; the total price adjustment payment
value for all IFQ halibut and/or sablefish (e.g., IFQ retro-payments)
received during the reporting period for the IFQ Fee Submission Form as
described in Sec. 679.5(l)(7)(ii)(D); and the fee liability amount due
for such price adjustments.
(ii) Calculation of total annual fee amount. An IFQ permit holder
with an IFQ landing must perform the following calculations and record
the results on the Fee Calculation page: add all fee liability
amount(s) due for each IFQ permit and record the sum as the sub-total
fee liability for all permits; multiply price adjustment payment(s)
received for each IFQ species by the fee percentage in effect at the
time the payment(s) was received by the IFQ permit holder; add the
resulting fee liability amounts due for all price adjustment payments
for each IFQ species, then enter the sum as the sub-total fee for price
adjustments; add the sub-total fee liability for all permits and the
sub-total fee for price adjustments, then enter the resulting sum as
the total annual fee amount on the Fee Calculation page and on the Fee
Payment page.
(4) Fee payment and certification section --(i) Information
required. An IFQ permit holder with an IFQ landing must provide his or
her NMFS person identification number and must sign and date and have
notarized by a Notary Public the Fee Payment section and record the
following: (i) his or her printed name; (ii) the total annual fee
amount as calculated and recorded on the Fee Calculation page; (iii)
the total of any pre-payments submitted to NMFS that apply to the total
annual fee amount; (iv) the remaining balance fee; and (v) the enclosed
payment amount.
(ii) Calculation of balance fee payment. An IFQ permit holder with
an IFQ landing must perform the following calculation on the Fee
Payment section of the Fee Submission Form: Subtract from the total
annual fee amount the total of all pre-payments made (if any) to NMFS
and any credits held by NMFS that are applicable to that year's total
IFQ cost recovery fees, and record the result as the balance fee amount
due.
(D) Reporting Period. The reporting period of the IFQ Fee
Submission Form shall extend from January 1 to December 31 of the year
prior to the January 31 due date described in Sec. 679.5(l)(7)(ii)(B).
* * * * *
5. In Sec. 679.41, revise paragraph (c)(8) and add paragraph
(c)(9)to read as follows:
Sec. 679.41 Transfer of quota shares and IFQ.
* * * * *
(c) * * *
(8)(i) The person applying to make or receive the IFQ or QS
transfer has paid all IFQ fees that have become due as a result of an
initial administrative determination.
(ii) The person applying to make or receive the IFQ or QS transfer
who has not paid all IFQ fees that are due (as provided under
Sec. 679.45(a)) has timely appealed the administrative determination
that IFQ fees have not been paid in full and has submitted to NMFS an
amount sufficient to satisfy any disputed liability pending a final
agency action.
(9) Other pertinent information requested on the Application for
Transfer has been supplied to the satisfaction of the Regional
Administrator.
* * * * *
6. Section 679.45 is added to read as follows:
Sec. 679.45 IFQ cost recovery program.
(a) Cost recovery fees --(1) Responsibility. The person documented
on the IFQ permit as the permit holder at the time of an IFQ landing
must comply with the requirements of this section. Subsequent transfer
of QS or IFQ does not affect the permit holder's liability for
noncompliance with this section.
(2) IFQ Fee Liability Determination.
After each IFQ fishing year, the Regional Administrator will issue
each IFQ permit holder a summary of his or her IFQ pounds landed during
that IFQ fishing year for each permit as part of the IFQ Landing and
Estimated Fee Liability page described at Sec. 679.5(l)(7)(ii)(C)(2).
The summary will include an estimated IFQ fee liability based on the
standard ex-vessel values of the landings. The summary and estimated
fee liability will include details of IFQ equivalent pounds landed by
permit, port or port-group, species, date, and IFQ standard prices. The
permit holder must either accept NMFS' estimate of IFQ liability or
revise NMFS' estimate of IFQ fee liability using the Fee Submission
Form described at Sec. 679.5(1)(7)(ii). If the permit holder revises
NMFS' estimate of his or her fee
[[Page 72309]]
liability, NMFS may request in writing that the permit holder submit
documentation establishing the factual basis for the revised
calculation. If the permit holder fails to provide adequate
documentation by the 30th day after the date of such
request, NMFS will determine the IFQ permit holder's fee liability
based on standard ex-vessel values.
(3) Fee Collection. An IFQ permit holder with an IFQ landing is
responsible for self-collecting his or her own fee during the calendar
year in which the IFQ fish is harvested.
(4) Payment --(i) Payment due date. An IFQ permit holder must
submit his or her IFQ fee liability payment(s) to NMFS at the address
provided in this section at paragraph (a)(4)(iii) not later than by
January 31 of the year following the calendar year in which the IFQ
landings were made.
(ii) Payment recipient. Make payment payable to NMFS.
(iii) Payment address. Mail payment and related documents to:
Administrator, Alaska Region, NMFS, Attn: RAM Program, P.O. Box 21668,
Juneau, AK 99802-1668, Facsimile: (907) 586-7354.
(iv) Payment method. Payment must be made by personal check drawn
on a U.S. bank account, money order, or bank certified check.
(b) IFQ ex-vessel value determination and use -- (1) General. An
IFQ permit holder must use either the IFQ standard ex-vessel value or
the IFQ actual ex-vessel value when determining the IFQ fee liability
based on ex-vessel value. An IFQ permit holder must base all fee
liability calculations on the ex-vessel value that correlates to landed
IFQ fish that is recorded in IFQ equivalent pounds.
(2) IFQ actual ex-vessel value. An IFQ permit holder that uses
actual ex-vessel value, as defined in Sec. 679.2, to determine IFQ fee
liability must document actual ex-vessel value for each IFQ permit.
(c) IFQ standard ex-vessel value determination and use --(1) Use of
standard price. An IFQ permit holder that uses standard ex-vessel value
to determine the IFQ fee liability as part of a revised IFQ fee
liability submission must use the corresponding standard price(s) as
published in the Federal Register.
(2) Duty to publish list.(i) General. Each year the Regional
Administrator will publish IFQ standard prices in the Federal Register
during the last quarter of each calendar year. The standard prices will
be described in U.S. dollars per IFQ equivalent pound, for IFQ halibut
and sablefish landings made during the current calendar year.
(ii) Effective duration. The IFQ standard prices will remain in
effect until revised by the Regional Administrator by notification in
the Federal Register based upon new information of the type set forth
in this section. IFQ standard prices published in the Federal Register
by NMFS shall apply to all landings made in the same calendar year as
the IFQ standard price publication and shall replace any IFQ standard
prices previously provided by NMFS that may have been in effect for
that same calendar year.
(iii) Determination. NMFS will calculate the IFQ standard prices to
reflect, as closely as practical by month and port or port-group, the
variations in the actual ex-vessel values of IFQ halibut and IFQ
sablefish landings based on information provided in the IFQ Buyer
Reports as described in Sec. 679.5(l)(7)(i). The Regional Administrator
will base IFQ standard prices on the following types of information:
(A) Landed pounds by IFQ species, port-group, and month;
(B) Total ex-vessel value by IFQ species, port-group, and month;
and
(C) Price adjustments, including IFQ retro-payments.
(d) IFQ fee percentage.-(i) Default percentage. The IFQ fee
percentage is 3 percent (0.03) unless adjusted by the Regional
Administrator by publication in the Federal Register in accordance with
Sec. 679.45(d)(3).
(2) Calculating fee percentage value. Each year the Regional
Administrator will calculate the fee percentage.-(i) Factors. In making
the calculations the Regional Administrator will consider the following
factors:
(A) The catch to which the IFQ fee would apply;
(B) The projected ex-vessel value of that catch;
(C) The costs directly related to the management and enforcement of
the IFQ program;
(D) The funds available for the IFQ program in the Limited Access
System Administrative Fund (LASAF); and
(E) Nonpayment of fee liabilities.
(ii) Methodology. In making the calculation, the Regional
Administrator will use the methodology described here.
[100 x (DPC - AB) / V] / (1 -NPR)
where:
DPC is the direct program costs for the IFQ fishery for he
previous fiscal year,
AB is the projected end of the year LASAF account balance for
the IFQ program,
V is the projected ex-vessel value of the catch subject to the
IFQ fee for the current year, and
NPR is the fraction of the fee assessments that is expected to
result in nonpayment.
(3) Adjustments. (1) General. During or before the last quarter of
each year, the Regional Administrator will consider adjusting the IFQ
fee percentage. Consideration will be based on the calculations
described in Sec. 679.45(d)(2). The Regional Administrator may reduce
the IFQ fee percentage at any time based on new information of the type
set forth in Sec. 679.45(d)(2).
(ii) In-season effective period. An in-season reduction in the IFQ
fee percentage supersedes the IFQ fee percentage previously in effect
for the calendar year and remains in effect through the end of the
calendar year in which it was determined unless otherwise adjusted by
the Regional Administrator.
(4) Publication. The Regional Administrator will publish
notification in the Federal Register any adjustment of the IFQ fee
percentage.
(5) Applicable percentage. The IFQ permit holder must use the IFQ
fee percentage in effect at the time an IFQ landing is made to
calculate his or her fee liability for such landed IFQ pounds unless
the percentage is subsequently adjusted as described in
Sec. 679.45(d)(3). The IFQ permit holder must use the IFQ percentage in
effect at the time an IFQ retro-payment is received by the IFQ permit
holder to calculate his or her IFQ fee liability for the IFQ retro-
payment.
(e) Non-payment of fee. If an IFQ permit holder does not submit a
complete Fee Submission Form and corresponding payment by the due date
described in Sec. 679.45(a)(2) and (3), the Regional Administrator may:
(1) at any time thereafter send an IAD to the IFQ permit holder
stating that the IFQ permit holder's estimated fee liability, as
calculated by the Regional Administrator and sent to the IFQ permit
holder pursuant to Sec. 679.45(a)(2) is the amount of IFQ fee due from
the IFQ permit holder.
(2) disapprove any transfer of IFQ or QS to or from the IFQ permit
holder in accordance with Sec. 679.41(c)(8)(i). Upon final agency
action determining that an IFQ permit holder has not paid his or her
IFQ fee liability, any IFQ permit held by the IFQ permit holder is not
valid until all IFQ fee liabilities are paid. If payment is not
received by the 30th day after the final agency action, the
matter will be referred to the appropriate authorities for purposes of
collection.
(f) Underpayment of IFQ fee. (1) When an IFQ permit holder has
incurred a fee liability and made a timely payment to NMFS of an amount
[[Page 72310]]
less than the NMFS estimated IFQ fee liability, the Regional
Administrator will review the Fee Submission Form and related
documentation submitted by the IFQ permit holder. If the Regional
Administrator determines that the IFQ permit holder has not paid an
sufficient amount, the Regional Administrator may disapprove any
transfer of IFQ or QS to or from the IFQ permit holder in accordance
with Sec. 679.41(c)(4). The Regional Administrator will notify the IFQ
permit holder by letter that an sufficient amount has not been paid and
that the IFQ permit holder has 30 days from the date of the letter to
either pay the amount determined to be due or provide additional
documentation to prove that the amount paid was the correct amount. The
Regional Administrator will evaluate any additional documentation
submitted by an IFQ permit holder in support of his or her payment. If
the Regional Administrator determines that the additional documentation
does not meet the IFQ permit holder's burden of proving his or her
payment is correct, the Regional Administrator will send the permit
holder an IAD indicating that the permit holder did not meet the burden
of proof to change the IFQ fee liability as calculated by the Regional
Administrator based upon the IFQ standard ex-vessel value.
(2) After expiration of the 30-day period, the Regional
Administrator will issue and IAD and notify the IFQ permit holder. The
IAD will set out the facts and indicate the deficiencies in the
documentation submitted by the permit holder. An IFQ permit holder who
receives an IAD may appeal pursuant to
Sec. 679.43. In an appeal of an IAD made under this section, the
IAD permit holder has the burden of proving his or her claim.
(3) If the permit holder fails to file an appeal of the IAD
pursuant to Sec. 679.43, the IAD will become the final agency
action. If the IAD is appealed and the final agency action is a
determination that additional sums are due from the IFQ permit holder,
the IFQ permit holder must pay any IFQ fee amount determined to be due
not later than 30 days from the issuance of the final agency action.
Once a fee liability determination becomes final, any IFQ permit held
by the IFQ permit holder will be deemed not valid until all IFQ fee
liabilities have been paid. If payment is not received by the
30th day after the final agency action, the matter will be
referred to the appropriate authorities for purposes of collection.
(g) Over payment. Upon issuance of final agency action, any amount
submitted to NMFS in access of the IFQ fee liability determined to be
due by the final agency action will be returned to the IFQ permit
holder unless the permit holder requests the agency to credit the
excess amount against the IFQ permit holder's future IFQ fee liability.
(h) Appeals and requests for reconsideration. An IFQ permit holder
who receives and IAD may either appeal the IAD pursuant to Sec. 679.43
or request reconsideration. Within 60 days from the date of issuance of
the IAD or the Regional Administrator may undertake a reconsideration
of the IAD on his or her own initiative. If a request for
reconsideration is submitted or the Regional Administrator initiates a
reconsideration, the 60-day period for appeal under Sec. 679.43 will
begin anew upon issuance of the Regional Administrator's reconsidered
IAD. The Regional Administrator may undertake only one reconsideration
of the IAD, if any. If an IFQ permit holder fails to file an appeal of
the IAD pursuant to Sec. 679.43, the IAD will become the final agency
action. In any appeal or reconsideration of an IAD made under this
section, an IFQ permit holder has the burden of proving his or her
claim.
(i) Annual report. NMFS will publish annually a report describing
the status of the IFQ Cost Recovery Program.
[FR Doc. 99-33198 Filed 12-23-99; 8:45 am]
BILLING CODE 3510-22-F
