[Code of Federal Regulations]
[Title 50, Volume 4]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 50CFR679.45]

[Page 719-722]
 
                    TITLE 50--WILDLIFE AND FISHERIES
 
                         DEPARTMENT OF COMMERCE
 
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA--Table of Contents
 
         Subpart D--Individual Fishing Quota Management Measures
 
Sec. 679.45  IFQ cost recovery program.

    (a) Cost recovery fees--(1) Responsibility. The person documented on 
the IFQ permit as the permit holder at the time of an IFQ landing must 
comply with the requirements of this section. Subsequent transfer of QS 
or IFQ does not affect the permit holder's liability for noncompliance 
with this section.
    (2) IFQ Fee Liability Determination. After each IFQ fishing year, 
the Regional Administrator will issue each IFQ permit holder a summary 
of his or her IFQ pounds landed during that IFQ fishing year for each 
permit as part of the IFQ Landing and Estimated Fee Liability page 
described at Sec. 679.5(l)(7)(ii)(C)(2). The summary will include an 
estimated IFQ fee liability based on the standard ex-vessel values of 
the landings. The summary and estimated fee liability will include 
details of IFQ equivalent pounds landed by permit, port or port-group, 
species, date, and IFQ standard prices. The permit holder must either 
accept NMFS's estimate of IFQ liability or revise NMFS's estimate of IFQ 
fee liability using the Fee Submission Form described at 
Sec. 679.5(l)(7)(ii). If the permit holder revises NMFS's estimate of 
his or her fee liability, NMFS may request in writing that the permit 
holder submit documentation establishing the factual basis for the 
revised calculation. If the permit holder fails to provide adequate 
documentation by the 30th day after the date of such request, 
NMFS will determine the IFQ permit holder's fee liability based on 
standard ex-vessel values.
    (3) Fee Collection. An IFQ permit holder with an IFQ landing is 
responsible for self-collecting his or her own fee during the calendar 
year in which the IFQ fish is harvested.
    (4) Payment--(i) Payment due date. An IFQ permit holder must submit 
his or her IFQ fee liability payment(s) to NMFS at the address provided 
in this section at paragraph (a)(4)(iii) of this section not later than 
January 31 of the year following the calendar year in which the IFQ 
landings were made.
    (ii) Payment recipient. Make payment payable to NMFS.
    (iii) Payment address. Mail payment and related documents to:
    Administrator, Alaska Region, NMFS,
    Attn: RAM Program,
    P.O. Box 21668,
    Juneau, AK 99802 1668,

[[Page 720]]

    FAX: (907) 586-7354.
    or submit electronically to NMFS via forms available from RAM or on 
the RAM area of the Alaska Region Home Page at http://www.fakr.noaa.gov/
ram.
    (iv) Payment method. Payment must be made in U.S. dollars by 
personal check drawn on a U.S. bank account, money order, bank certified 
check, or credit card.
    (b) IFQ ex-vessel value determination and use--(1) General. An IFQ 
permit holder must use either the IFQ standard ex-vessel value or the 
IFQ actual ex-vessel value when determining the IFQ fee liability based 
on ex-vessel value. An IFQ permit holder must base all fee liability 
calculations on the ex-vessel value that correlates to landed IFQ fish 
that is recorded in IFQ equivalent pounds.
    (2) IFQ actual ex-vessel value. An IFQ permit holder that uses 
actual ex-vessel value, as defined in Sec. 679.2, to determine IFQ fee 
liability must document actual ex-vessel value for each IFQ permit.
    (c) IFQ standard ex-vessel value determination and use--(1) Use of 
standard price. An IFQ permit holder that uses standard ex-vessel value 
to determine the IFQ fee liability as part of a revised IFQ fee 
liability submission must use the corresponding standard price(s) as 
published in the Federal Register.
    (2) Duty to publish list--(i) General. Each year the Regional 
Administrator will publish IFQ standard prices in the Federal Register 
during the last quarter of each calendar year. The standard prices will 
be described in U.S. dollars per IFQ equivalent pound, for IFQ halibut 
and sablefish landings made during the current calendar year.
    (ii) Effective duration. The IFQ standard prices will remain in 
effect until revised by the Regional Administrator by notification in 
the Federal Register based upon new information of the type set forth in 
this section. IFQ standard prices published in the Federal Register by 
NMFS shall apply to all landings made in the same calendar year as the 
IFQ standard price publication and shall replace any IFQ standard prices 
previously provided by NMFS that may have been in effect for that same 
calendar year.
    (iii) Determination. NMFS will calculate the IFQ standard prices to 
reflect, as closely as possible by month and port or port-group, the 
variations in the actual ex-vessel values of IFQ halibut and IFQ 
sablefish landings based on information provided in the IFQ Buyer 
Reports as described in Sec. 679.5(l)(7)(i). The Regional Administrator 
will base IFQ standard prices on the following types of information:
    (A) Landed pounds by IFQ species, port-group, and month;
    (B) Total ex-vessel value by IFQ species, port-group, and month; and
    (C) Price adjustments, including IFQ retro-payments.
    (d) IFQ fee percentage--(1) Default percentage. The IFQ fee 
percentage is 3 percent (0.03) unless adjusted by the Regional 
Administrator by publication in the Federal Register in accordance with 
Sec. 679.45(d)(3).
    (2) Calculating fee percentage value. Each year the Regional 
Administrator will calculate the fee percentage.
    (i) Factors. In making the calculations the Regional Administrator 
will consider the following factors:
    (A) The catch to which the IFQ fee will apply;
    (B) The projected ex-vessel value of that catch;
    (C) The costs directly related to the management and enforcement of 
the IFQ program;
    (D) The funds available for the IFQ program in the Limited Access 
System Administrative Fund (LASAF); and
    (E) Nonpayment of fee liabilities.
    (ii) Methodology. In making the calculation, the Regional 
Administrator will use the methodology described here.

[100 x (DPC - AB) / V] / (1 - NPR)

where:

DPC is the direct program costs for the IFQ fishery for the previous 
fiscal year,
AB is the projected end of the year LASAF account balance for the IFQ 
program,
V is the projected ex-vessel value of the catch subject to the IFQ fee 
for the current year, and
NPR is the fraction of the fee assessments that is expected to result in 
nonpayment.

    (3) Adjustments. (i) General. During or before the last quarter of 
each year, the Regional Administrator will consider adjusting the IFQ 
fee percentage.

[[Page 721]]

Consideration will be based on the calculations described in 
Sec. 679.45(d)(2). The Regional Administrator may reduce the IFQ fee 
percentage at any time based on new information of the type set forth in 
Sec. 679.45(d)(2).
    (ii) In-season effective period. An in-season reduction in the IFQ 
fee percentage supersedes the IFQ fee percentage previously in effect 
for the calendar year and remains in effect through the end of the 
calendar year in which it was determined unless otherwise adjusted by 
the Regional Administrator.
    (4) Publication. The Regional Administrator will publish 
notification in the Federal Register any adjustment of the IFQ fee 
percentage.
    (5) Applicable percentage. The IFQ permit holder must use the IFQ 
fee percentage in effect at the time an IFQ landing is made to calculate 
his or her fee liability for such landed IFQ pounds unless the 
percentage is subsequently adjusted as described in Sec. 679.45(d)(3). 
The IFQ permit holder must use the IFQ percentage in effect at the time 
an IFQ retro-payment is received by the IFQ permit holder to calculate 
his or her IFQ fee liability for the IFQ retro-payment.
    (e) Non-payment of fee. If an IFQ permit holder does not submit a 
complete Fee Submission Form and corresponding payment by the due date 
described in Sec. 679.45(a)(2) and (3), the Regional Administrator may:
    (1) At any time thereafter send an IAD to the IFQ permit holder 
stating that the IFQ permit holder's estimated fee liability, as 
calculated by the Regional Administrator and sent to the IFQ permit 
holder pursuant to Sec. 679.45(a)(2) is the amount of IFQ fee due from 
the IFQ permit holder.
    (2) Disapprove any transfer of IFQ or QS to or from the IFQ permit 
holder in accordance with Sec. 679.41(c)(8)(i). Upon final agency action 
determining that an IFQ permit holder has not paid his or her IFQ fee 
liability, any IFQ fishing permit held by the IFQ permit holder is not 
valid until all IFQ fee liabilities are paid. If payment is not received 
by the 30th day after the final agency action, the matter 
will be referred to the appropriate authorities for purposes of 
collection.
    (f) Underpayment of IFQ fee. (1) When an IFQ permit holder has 
incurred a fee liability and made a timely payment to NMFS of an amount 
less than the NMFS estimated IFQ fee liability, the Regional 
Administrator will review the Fee Submission Form and related 
documentation submitted by the IFQ permit holder. If the Regional 
Administrator determines that the IFQ permit holder has not paid a 
sufficient amount, the Regional Administrator may disapprove any 
transfer of IFQ or QS to or from the IFQ permit holder in accordance 
with Sec. 679.41(c)(4). The Regional Administrator will notify the IFQ 
permit holder by letter that an insufficient amount has been paid and 
that the IFQ permit holder has 30 days from the date of the letter to 
either pay the amount determined to be due or provide additional 
documentation to prove that the amount paid was the correct amount. The 
Regional Administrator will evaluate any additional documentation 
submitted by an IFQ permit holder in support of his or her payment. If 
the Regional Administrator determines that the additional documentation 
does not meet the IFQ permit holder's burden of proving his or her 
payment is correct, the Regional Administrator will send the permit 
holder an IAD indicating that the permit holder did not meet the burden 
of proof to change the IFQ fee liability as calculated by the Regional 
Administrator based upon the IFQ standard ex-vessel value.
    (2) After expiration of the 30-day period, the Regional 
Administrator will issue an IAD and notify the IFQ permit holder. The 
IAD will set out the facts and indicate the deficiencies in the 
documentation submitted by the permit holder. An IFQ permit holder who 
receives an IAD may appeal pursuant to Sec. 679.43. In an appeal of an 
IAD made under this section, the IAD permit holder has the burden of 
proving his or her claim.
    (3) If the permit holder fails to file an appeal of the IAD pursuant 
to Sec. 679.43, the IAD will become the final agency action. If the IAD 
is appealed and the final agency action is a determination that 
additional sums are due from the IFQ permit holder, the IFQ permit 
holder must pay any IFQ fee amount

[[Page 722]]

determined to be due not later than 30 days from the issuance of the 
final agency action. Once a fee liability determination becomes final, 
any IFQ fishing permit held by the IFQ permit holder will be deemed not 
valid until all IFQ fee liabilities have been paid. If payment is not 
received by the 30th day after the final agency action, the 
matter will be referred to the appropriate authorities for purposes of 
collection.
    (g) Over payment. Upon issuance of final agency action, any amount 
submitted to NMFS in excess of the IFQ fee liability determined to be 
due by the final agency action will be returned to the IFQ permit holder 
unless the permit holder requests the agency to credit the excess amount 
against the IFQ permit holder's future IFQ fee liability.
    (h) Appeals and requests for reconsideration. An IFQ permit holder 
who receives an IAD may either appeal the IAD pursuant to Sec. 679.43 or 
request reconsideration. Within 60 days from the date of issuance of the 
IAD, the Regional Administrator may undertake a reconsideration of the 
IAD on his or her own initiative. If a request for reconsideration is 
submitted or the Regional Administrator initiates a reconsideration, the 
60-day period for appeal under Sec. 679.43 will begin anew upon issuance 
of the Regional Administrator's reconsidered IAD. The Regional 
Administrator may undertake only one reconsideration of the IAD, if any. 
If an IFQ permit holder fails to file an appeal of the IAD pursuant to 
Sec. 679.43, the IAD will become the final agency action. In any appeal 
or reconsideration of an IAD made under this section, an IFQ permit 
holder has the burden of proving his or her claim.
    (i) Annual report. NMFS will publish annually a report describing 
the status of the IFQ Cost Recovery Program.

[65 FR 14924, Mar. 20, 2000, as amended at 67 FR 4133, Jan. 28, 2002]