[Federal Register Volume 61, Number 61 (Thursday, March 28, 1996)]
[Rules and Regulations]
[Pages 13782-13784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7612]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 677
[Docket No. 960311066-6066-01; I.D. 030596C]
RIN 0648-AI67
North Pacific Fisheries Research Plan; Fee Refund
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Interim final rule; request for comments.
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SUMMARY: NMFS issues an interim final rule that will discontinue the
1995 North Pacific Fisheries Research Plan (Research Plan) fee
collection process, authorize the issuance of annual Federal processor
permits without regard to payment of Research Plan fees, and refund all
fees collected (approximately $5.6 million) by NMFS under the Research
Plan, along with accrued interest. A refund procedure is outlined that
describes how Research Plan refund recipients will be identified, how
the refunds will be calculated, and how and when refund checks will be
disbursed. This action is necessary to respond to the North Pacific
Fishery Management Council's (Council) vote at its December 1995
meeting to repeal the Research Plan. It is intended to terminate the
collection of fees authorized by the Research Plan.
DATES: Effective March 25, 1996. Comments must be received on or before
April 29, 1996, (See ADDRESSES).
ADDRESSES: Comments on the interim final rule may be sent to Ronald J.
Berg, Chief, Fisheries Management Division, Alaska Region, NMFS, Room
453, 709 W. 9th Street, Juneau, AK 99801, or P.O. Box 21668, Juneau, AK
99802, Attention: Lori J. Gravel.
FOR FURTHER INFORMATION CONTACT: Kim S. Rivera, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
A final rule implementing the Research Plan was published in the
Federal Register on September 6, 1994 (59 FR 46126), under the
authority of section 313 of the Magnuson Fishery Conservation and
Management Act (Magnuson Act), as amended by section 404 of the High
Seas Driftnet Fisheries Enforcement Act, Public Law 102-582. The
Research Plan includes a fee collection program to pay for the costs of
observer coverage for all fisheries under the Council's jurisdiction,
except salmon fisheries. Full implementation of the Research Plan was
delayed until 1997 (60 FR 66755, December 26, 1995) after the Council
requested additional time to reconsider certain elements of the
Research Plan that it had previously adopted. At its December 1995
meeting, the Council voted to repeal the Research Plan and its
associated fee-based funding mechanism and requested NMFS to develop
rulemaking for an alternative to the Research Plan and to refund the
Research Plan fees collected in 1995.
As a result of the Council's action, NMFS intends to halt the
administrative process necessary for full implementation of the
Research Plan. This includes the billing of Research Plan fee
assessments, collection of fee payments, and the requirement for
Research Plan fees to be fully paid prior to issuance of Federal
processor permits. Furthermore, NMFS will refund all monies, including
accrued interest, deposited in the North Pacific Fishery Observer Fund
(Observer Fund) to the processors that were billed and made direct
payments to NMFS. Refund checks will be issued as soon as
administratively possible.
Without the fee collection process in place, a justification for a
semiannual Federal processor permit no longer exists. Therefore, the
requirement is revised and the Federal processor permit will be issued
annually.
In 1995, fee assessments were billed for the first four bimonthly
billing periods and over $5.6 million was collected from Research Plan
processors. Two more bimonthly fee assessments were scheduled to
complete the 1995 billings. They will not be issued. Regulations at
Sec. 677.6(b) are revised to indicate that 1995 fee assessments were
required only through August 31, 1995. To be consistent with the
revised 1995 billing period, regulations at Sec. 677.6(d) also are
changed to indicate a January 1 through August 31, 1995, period.
Beginning in 1996, Federal processor permits will be issued for the
entire calendar year rather than for a semiannual period. As a result,
Federal processor permits issued in 1996 will be effective for the
period January 1, 1996, through December 31, 1996. Regulations at
Sec. 677.4(b)(1) and (c)(1) will be revised to indicate that the
Federal processor permits are issued annually and regulations at
Sec. 677.4(e) will be revised to indicate that the duration of an
issued Federal processor permit is for the period January 1 through
December 31. Issuance of Federal processor permits will not depend upon
payment of past due Research Plan fees. Regulations at Sec. 677.4(c)(2)
are revised to remove language requiring payment of Research Plan fees
as a condition of Federal processor permit issuance.
NMFS intends to refund in its entirety the $5.6 million collected
under the Research Plan and the interest earned on fee payments
deposited in the Observer Fund. Refunds will be issued to Research Plan
processors using a procedure set forth in a new paragraph at
Sec. 677.6(g). Reference to refunds at Sec. 677.6(d)(3)(ii) is no
longer applicable and is removed.
NMFS collected fees only from processors. NMFS did not collect fees
directly from fishermen and does not have the necessary information to
provide refunds to fishermen. NMFS expects processors to refund to
fishermen any Research Plan fees collected from fishermen. NMFS
encourages fishermen who paid Research Plan fees to one or more
processors to coordinate directly with those processors to obtain their
portion of the Research Plan refund.
Classification
The Assistant Administrator for Fisheries, NOAA (AA) finds that
relieving certain conditions specified at Sec. 677.4(b)(1), (c), and
(e) for processor permit issuance and at Sec. 677.6 (b) and (d) for
1995 fee assessments removes a regulatory burden. Given that the
Research Plan has not been fully
[[Page 13783]]
implemented and that the industry did not receive any observer services
for their paid fees, NMFS should return all fees paid, including any
interest accrued, and amounts for late payment as soon as possible. The
AA finds good cause to waive the requirement to provide prior notice
and the opportunity for public comment, pursuant to authority set forth
at 5 U.S.C. 553(b)(B). To the extent that NMFS is returning Research
Plan fees to those who are entitled to those fees, opportunity for
comment is unnecessary. NMFS finds that it would be contrary to the
public interest to delay these refunds further in order to provide
prior notice and opportunity to comment on the procedural aspects of
this rule. Such a delay may cause economic injury to persons entitled
to a refund. Similarly, because this interim final rule relieves
restrictions listed above, the AA finds that this rule, as authorized
by 5 U.S.C. 553(d)(1), may be made effective upon filing for public
inspection at the Office of the Federal Register. Comments must be
received on or before April 29, 1996, (See ADDRESSES).
This rule contains collection-of-information requirements subject
to the Paperwork Reduction Act. The collections of this information
have been approved by the Office of Management and Budget, OMB control
numbers 0648-0206 (Processor Permit Application) and 0648-0280 (dispute
resolution process). The time estimate for documentation of disputed
bills is 1 hr per response. This final rule relieves a reporting burden
by changing the Federal processor permit application authorized under
Sec. 677.4 from a semiannual to an annual requirement. The annual
application process will reduce by 50 percent the total burden hours
associated with the issuance of Federal processor permits and result in
an estimated total annual reporting burden equal to about 200 hours for
an estimated 400 Research Plan processors who applied for a Federal
processor permit to date in 1996.
No environmental consequences are anticipated beyond those already
analyzed in the environmental assessment (EA) prepared for the Research
Plan and therefore this interim final rule is categorically excluded
from the requirement to prepare an EA in accordance with NAO 216-6.
This interim final rule has been determined to be not significant
for purposes of E.O. 12866.
List of Subjects in 50 CFR Part 677
Fisheries, Reporting and recordkeeping requirements.
Dated: March 22, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service
For the reasons set out in the preamble, 50 CFR part 677 is amended
as follows:
PART 677--NORTH PACIFIC FISHERIES RESEARCH PLAN
1. The authority citation for 50 CFR part 677 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 677.4, paragraphs (b)(1), (c)(1), (c)(2), and (e) are
revised to read as follows:
Sec. 677.4 Permits.
* * * * *
(b) * * *
(1) The year for which the permit is requested.
* * * * *
(c) Issuance. (1) Permits required under this section will be
issued annually by the Regional Director.
(2) The Regional Director will issue a permit required under
paragraph (a) of this section upon receipt of a complete application.
Upon receipt of an incomplete or improperly completed application, the
Regional Director will notify the applicant of the deficiency. No
permit will be issued to an applicant until a complete application is
submitted.
* * * * *
(e) Duration. The processor permit issued by the Regional Director
will continue in full force and effect through December 31, of the year
for which it is issued, or until it is revoked, suspended, or modified
under part 621 (Civil Procedures) of this chapter.
* * * * *
3. In Sec. 677.6, the heading to paragraph (b)(1) is revised,
paragraph (b)(2) is revised, the heading for paragraph (d) is revised,
paragraph (d)(3)(ii) is removed and reserved, and a new paragraph (g)
is added to read as follows:
Sec. 677.6 Research Plan fee.
* * * * *
(b) * * *
(1) Fee assessments applicable from January 1, 1995, through August
31, 1995.
* * * * *
(2) Fee assessments from September 1, 1995, through December 31,
1996. Processors of Research Plan fisheries will not be assessed fees
based on catch from Research Plan fisheries that is retained during the
period September 1, 1995, through December 31, 1996.
* * * * *
(d) Credit for observer coverage costs incurred from January 1,
1995, through August 31, 1995.
* * * * *
(g) Refund of the North Pacific Fishery Observer Fund (Observer
Fund)--(1) General. All monies in the Observer Fund will be refunded
according to the refund procedure set out in paragraph (g)(2) of this
section. The sum of all amounts refunded cannot exceed the amount
available in the Observer Fund. The monies in the Observer Fund
include: Fee assessment payments as specified in paragraph (c) of this
section, assessed late charges in the form of interest and
administrative charges for late payment of fee assessments as specified
in paragraph (f) of this section, and accrued interest. Until the time
of refund, monies will remain deposited in the Observer Fund earning
interest. Without exception, full disbursement of the Observer Fund
will occur to refund Research Plan processors. NMFS will not retain any
funds either to reimburse programs for costs incurred to implement the
Research Plan or to issue refunds.
(2) Refund procedure--(i) Identification of the Research Plan
refund recipient. Research Plan fees will be refunded to the person who
was billed and made payment to NMFS. The recipient of the refund and
the refund amount will be based on Federal processor permit records and
Research Plan billing with the following exceptions:
(A) If a refund recipient has died, the refund will be issued to
the recipient's estate;
(B) If a refund recipient is a corporation and has gone bankrupt,
successor-in-interest guidelines, as set forth in applicable state law,
will be followed.
(ii) Calculation of the refund amount--(A) Principal portion. All
payment amounts as assessed under paragraphs (c) and (f) of this
section, and paid by processors, will be verified by NMFS in the
Research Plan billing records and will constitute the principal portion
of the refund.
(B) Interest portion--(1) Basis of calculation and calculation
formula. The interest earned by the principal portion invested in the
Observer Fund will be distributed among paying processors based on
their proportional contribution to the Observer Fund. Contributions are
based on two factors: The processor's total payment amount and the
number of days the processor's total payment amount was on deposit. The
interest portion of the refund will be calculated as follows:
[[Page 13784]]
(i) A processor's total payment amount multiplied by the number of
days the processor's total payment amount was on deposit equals the
processor's contribution (the number of days is based on the payment
receipt date at the First National Bank of Chicago) (for example, if a
processor's total payment amount was $20,000 and this amount was on
deposit for 150 days, then the processor's contribution is $20,000 x
150 = $3,000,000);
(ii) A processor's contribution divided by the total amount of all
processor contributions multiplied by 100 equals the processor's
percent contribution to the Observer Fund [for example, if the total
amount of all processor contributions is $750,000,000 ($5,000,000 x 150
days), then the processor's percent contribution is $3,000,000/
$750,000,000 x 100 = 0.4%];
(iii) A processor's percent contribution multiplied by the total
amount of interest earned by the Observer Fund equals the processor's
interest portion of the Research Plan refund (for example, if the total
amount of interest earned by the Observer Fund is $200,000, then the
processor's interest portion of the Research Plan refund is 0.4% x
$200,000 = $800).
(2) Interest calculation method. This method is necessary to ensure
that the interest that is refunded does not exceed the interest amount
that was earned and is available in the Observer Fund. Due to the
administrative process used to invest the funds, certain delays existed
between the date a processor made payment and the actual investment
date. The date of payment is not the date the deposits were invested.
Therefore, using the date of payment to calculate interest earned on an
individual processor's payments will not accurately reflect the
interest that was actually earned. NMFS has determined that the
calculation specified in paragraph (g)(2)(ii)(B)(1) of this section is
a fair and equitable way to distribute the interest earned on Observer
Fund investments among the processors that made Research Plan payments.
(3) Disinvestment of the Observer Fund. The interest portion of the
refund cannot be calculated until Observer Fund investments are
withdrawn. Withdrawal of investments will occur just prior to the
earliest possible issuance of refund checks in order to avoid
unwarranted loss of interest. The actual amount of a processor's
interest portion of the refund will be evident upon receipt of the
refund check.
(iii) Notification to processors of refund amounts. NMFS will
notify each processor by certified mail of a preliminary determination
of the principal portion of the refund amount. The sum of the payment
amounts received for each processor equals the principal portion of the
Research Plan refund. Final determination of a processor's principal
portion is subject to resolution of all disputes received under
paragraph (g)(2)(iv) of this section. The notification letter to each
processor will include the following itemized reference information:
(A) Payment amount received;
(B) Payment receipt date at the First National Bank of Chicago;
(C) Check number;
(D) Research Plan bill number to which the payment was applied,
and;
(E) The fishery category to which the payment was applied.
(iv) Dispute process. A processor that disagrees with any
determination of the principal portion of the refund amount as
described in paragraph (g)(2)(ii)(A) of this section must sign the
certified notification letter and return it to NMFS within 30 days of
receipt of the certified letter, accompanied by documentation
supporting the disputed principal portion of the refund amount.
(A) NMFS review. NMFS will review letters and documentation
received under paragraph (g)(2)(iv); and
(B) NMFS determination--(1) If NMFS determines an error exists in
the calculation of the principal portion of refund amounts, NMFS will
correct such calculations and notify the affected processors of its
determination; or
(2) If NMFS determines no error exists in the calculation of the
principal portion of refund amounts, NMFS will notify the affected
processors of its determination.
(v) Disbursement of refund checks. Once all disputes received under
paragraph (g)(2)(iv) of this section have been resolved, NMFS will
authorize and provide necessary documentation for refund checks to be
disbursed by the United States Treasury.
[FR Doc. 96-7612 Filed 3-25-96; 4:31 pm]
BILLING CODE 3510-22-F
