Editorial Note on Part 679
Editorial Note: Nomenclature changes to part 679 appear at 61 FR 56438, Nov. 1, 1996; 62 FR 2047, Jan. 15, 1997; 66 FR 27909, May 21, 2001; 67 FR 79739, Dec. 30, 2002; and 77 FR 6502, Feb. 8, 2012.

§ 679.66 AFA cost recovery. ( a ) *Cost recovery fee program for AFA* — ( 1 ) *Who is responsible for submitting the fee?* ( i ) The person designated on the AFA inshore cooperative permit as the designated representative at the time of a Bering Sea pollock landing.
( ii ) The person designated as the representative of the entity representing the AFA catcher/processor sector under § 679.21(f)(8)(i)(C) at the time of a Bering Sea pollock landing.
( iii ) The person designated as the representative of the AFA mothership cooperative at the time of a Bering Sea pollock landing.
( 2 ) *Responsibility.* ( i ) Subsequent transfer of AFA permits held by cooperative members does not affect the designated representative's liability for noncompliance with this section.
( ii ) Changes in the membership in a cooperative, such as members joining or departing during the relevant year, or changes in the holdings of AFA permits of those members do not affect the designated representative's liability for noncompliance with this section.
( 3 ) *Fee collection.* Each designated representative (as identified under paragraph (a)(1) of this section) is responsible for submitting the cost recovery payment for all Bering Sea pollock landings debited against the AFA cooperative's or AFA sector's AFA pollock fishery allocation.
( 4 ) *Payment* — ( i ) *Payment due date.* The designated representative (as identified under paragraph (a)(1) of this section) must submit all AFA fee payment(s) to NMFS at the address provided in paragraph (a)(4)(iii) of this section no later than December 31 of the calendar year in which the Bering Sea pollock landings were made.
( ii ) *Payment recipient.* Make electronic payment payable to NMFS.
( iii ) *Payment address.* Submit payment and related documents as instructed on the fee submission form. Payments must be made electronically through the NMFS Alaska Region Web site at *http://alaskafisheries.noaa.gov .* Instructions for electronic payment will be made available on both the payment Web site and a fee liability summary letter mailed to each designated representative.
( iv ) *Payment method.* Payment must be made electronically in U.S. dollars by automated clearing house, credit card, or electronic check drawn on a U.S. bank account.
( b ) *AFA standard ex-vessel value determination and use* — ( 1 ) *General.* A designated representative must use the AFA standard price determined by NMFS under paragraph (b)(2) of this section.
( 2 ) *AFA standard price* — ( i ) *General.* Each year the Regional Administrator will publish the AFA standard price in the Federal Register by December 1 of the year in which the landings were made. The AFA standard price will be described in U.S. dollars per AFA pollock equivalent pound for Bering Sea pollock landings made by AFA cooperative or AFA sector members during the current calendar year.
( ii ) *Effective duration.* The AFA standard price published by NMFS shall apply to all Bering Sea pollock landings made by an AFA cooperative or AFA sector member during the current calendar year.
( iii ) *Determination.* NMFS will calculate the AFA standard price to reflect, as closely as possible, the standard price of Bering Sea pollock landings based on information provided in the COAR for the previous year, as described in § 679.5(p). The Regional Administrator will base the AFA standard price on the following information: ( A ) Landed pounds of Bering Sea pollock;
( B ) Total ex-vessel value of Bering Sea pollock; and
( C ) Price adjustments, including retroactive payments.
( c ) *AFA fee percentages* — ( 1 ) *Established percentages.* The AFA fee percentages are the amounts as determined by the factors and methodology described in paragraph (c)(2) of this section. These amounts will be announced by publication in the Federal Register in accordance with paragraph (c)(3) of this section. These amounts must not exceed 3.0 percent pursuant to 16 U.S.C. 1854(d)(2)(B).
( 2 ) *Calculating fee percentage value.* Each year NMFS will calculate and publish AFA fee percentages for AFA inshore cooperatives, the AFA catcher/processor sector, and the AFA mothership cooperative according to the following factors and methodology: ( i ) *Factors.* NMFS will use the following factors to determine the fee percentages: ( A ) The catch to which the AFA pollock cost recovery fee will apply;
( B ) The ex-vessel value of that catch; and
( C ) The costs directly related to the management, data collection, and enforcement of the AFA directed pollock fisheries.
( ii ) *Methodology.* NMFS will use the following equations to determine the AFA fee percentage: 100 × DPC/V, where: ( A ) DPC = the direct program costs for the directed AFA pollock fisheries for the most recent fiscal year (October 1 through September 30) with any adjustments to the account from payments received in the previous year.
( B ) V = total of the standard ex-vessel value of the catch subject to the AFA fee liability for the current year.
( iii ) Direct program costs will be calculated separately for: ( A ) AFA inshore cooperatives;
( B ) The AFA catcher/processor sector; and
( C ) The AFA mothership cooperative.
( 3 ) *Publication* — ( i ) *General.* NMFS will calculate and announce the AFA fee percentages in a Federal Register notice by December 1 of the year in which the Bering Sea pollock landings were made. AFA fee percentages will be calculated separately for the AFA inshore cooperatives, the AFA catcher/processor sector, and the AFA mothership cooperative. NMFS will calculate the AFA fee percentages based on the calculations described in paragraph (c)(2) of this section.
( ii ) *Effective period.* NMFS will apply the calculated AFA fee percentages to all Bering Sea directed pollock landings made between January 1 and December 31 of the current year.
( 4 ) *Applicable percentage.* A designated representative must use the AFA fee percentage applicable at the time a Bering Sea directed pollock landing is debited from an AFA pollock fishery allocation to calculate the AFA fee liability for any retroactive payments for that landing.
( 5 ) *Fee liability determination.* ( i ) Each AFA inshore cooperative, the AFA mothership cooperative, and the AFA catcher/processor sector will be subject to an AFA fee liability for any Bering Sea pollock debited from its AFA pollock fishery allocation during a calendar year.
( ii ) The AFA fee liability assessed to an AFA inshore cooperative will be based on the proportion of the AFA fee liability of Bering Sea pollock debited from that AFA inshore cooperative's AFA pollock fishery allocation relative to all AFA inshore cooperatives during a calendar year as determined by NMFS.
( iii ) The AFA fee liability assessed to the AFA catcher/processor sector will be based on the standard ex-vessel value of Bering Sea pollock debited from the sector's AFA pollock fishery allocation during a calendar year as determined by NMFS.
( iv ) The AFA fee liability assessed to the AFA mothership cooperative will be based on the proportion of the standard ex-vessel value of Bering Sea pollock debited from the cooperative's AFA pollock fishery allocation during a calendar year as determined by NMFS.
( v ) NMFS will provide a fee liability summary letter to each designated representative by December 1 of each year. The summary will explain the AFA fee liability determination including the current fee percentage and details of Bering Sea pollock pounds debited from the AFA pollock fishery allocation by permit, species, date, and prices.
( d ) *Underpayment of fee liability* — ( 1 ) No AFA inshore cooperative will receive its AFA pollock fishery allocation until the cooperative's designated representative submits full payment of the cooperative's AFA fee liability.
( 2 ) The AFA mothership cooperative will not receive its AFA pollock fishery allocation until the cooperative's designated representative submits full payment of that cooperative's AFA fee liability.
( 3 ) The AFA catcher/processor sector will not receive its Bering Sea pollock allocation until the entity's designated representative defined at § 679.21(f)(8)(i)(C) submits full payment of the AFA fee liability at the time of a Bering Sea pollock landing, except the Regional Administrator may release to the AFA catcher/processor sector a portion of the AFA catcher/processor sector's Bering Sea pollock allocation that is equal to the portion of the fee liability submitted by the entity's designated representative.
( 4 ) If the designated representative fails to submit full payment for the AFA fee liability by the date described in paragraph (a)(4) of this section, the Regional Administrator, at any time thereafter, may send an IAD to the designated representative stating that the estimated fee liability, based on the information submitted by the designated representative, is the AFA fee liability due from the designated representative.
( 5 ) If the designated representative fails to submit full payment for the AFA fee liability by the date described at paragraph (a)(4) of this section, the Regional Administrator will not issue a Bering Sea pollock allocation to that AFA cooperative or AFA sector for the following calendar year, except as provided in paragraph (d)(3) of this section.
( 6 ) Upon final agency action determining that the designated representative has not submitted the AFA fee liability payment, the Regional Administrator may continue to not issue a Bering Sea pollock allocation for that AFA cooperative or AFA sector for any subsequent calendar years until NMFS receives the unpaid fees. If payment is not received by the 30th day after the final agency action, the agency may pursue collection of the unpaid fees.
( e ) *Over payment.* Upon issuance of final agency action, payment submitted to NMFS in excess of the AFA fee liability determined to be due by the final agency action will be returned to the designated representative unless the designated representative requests the agency to credit the excess amount against a cooperative's or sector's future AFA fee liability.
( f ) *Appeals.* The designated representative who receives an IAD for incomplete payment of an AFA fee liability may appeal under the appeals procedures set out at 15 CFR part 906.
( g ) *Annual report.* Each year, NMFS will publish a report describing the AFA Cost Recovery Fee Program.
[81 FR 168, Jan. 5, 2016]