North Pacific Fisheries Research Plan; Fee Refund

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

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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