Federal Register / Vol. 74, No. 177 / Tuesday, September 15, 2009 / Rules and Regulations 47119 

(VMS) reports and other available 

information, the TACs for Eastern GB 

cod and GB yellowtail flounder would 

be fully harvested before the end of FY 

2009, resulting in the premature closure 

of the Eastern U.S./Canada Area and the 

potential under-harvest of the available 

TAC for Eastern GB haddock during FY 

2009. Requiring trawl vessels to use 

either a haddock separator trawl or a 

Ruhle trawl is expected to reduce the 

catch rates of both cod and yellowtail 

flounder, reduce discards, and result in 

the achievement of the TACs, without 

exceeding them. Based on this 

information, the Regional Administrator 

is prohibiting the use of flounder trawl 

nets by any limited access NE 

multispecies vessel fishing in the 

Eastern U.S./Canada Area under a NE 

multispecies DAS, to reduce catches 

and discards of Eastern GB cod and GB 

yellowtail flounder, effective September 

17, 2009, through April 30, 2010. 

Classification 

This action is authorized by 50 CFR 

part 648 and is exempt from review 

under Executive Order 12866. 

Pursuant to 5 U.S.C. 553(b)(B) and 

(d)(3), there is good cause to waive prior 

notice and opportunity for public 

comment, as well as the delayed 

effectiveness for this action, because 

notice, comment, and a delayed 

effectiveness would be impracticable 

and contrary to the public interest. The 

regulations under § 648.85(a)(3)(iv)(D) 

grant the Regional Administrator the 

authority to modify gear requirements to 

prevent over-harvesting or 

underharvesting the TAC allocation. 

Because of the time necessary to provide 

for prior notice and opportunity for 

public comment, NMFS would be 

prevented from taking immediate action 

to slow the catch rate of GB cod in the 

Eastern U.S./Canada Area. Such a delay 

would allow the observed high catch 

rate of GB cod to continue and would 

result in excessive discards of GB cod, 

the premature closure of the Eastern 

U.S./Canada Area for the remainder of 

the fishing year, and the potential 

under-harvest of the available TAC 

specified for GB haddock. Excessive 

discards of GB cod caused by a delayed 

implementation of this action could 

potentially increase mortality on this 

overfished stock and undermine the 

conservation objectives of Amendment 

13 to the FMP, and the MagnusonStevens Act. If implementation of this 

action is delayed, the NE multispecies 

fishery could be prevented from fully 

harvesting the TAC for GB haddock 

during FY 2009. Under-harvesting this 

TAC would result in increased 

economic impacts to the industry, and 

social impacts beyond those analyzed in 

Amendment 13, as the full potential 

revenue from the available Eastern GB 

haddock would not be realized. 

The rate of harvest of the Eastern GB 

cod and GB yellowtail flounder TACs in 

the U.S./Canada Management Area are 

updated weekly on the internet at 

http://www.nero.noaa.gov. Accordingly, 

the public is able to obtain information 

that would provide at least some 

advanced notice of a potential action to 

provide additional opportunities to the 

NE multispecies industry to fully 

harvest the TAC for any species during 

FY 2009. Further, the Regional 

Administrator’s authority to modify gear 

requirements in the U.S./Canada 

Management Area to help ensure that 

the shared U.S./Canada stocks of fish 

are harvested, but not exceeded, was 

considered and open to public comment 

during the development of Amendment 

13 to the FMP and Framework 

Adjustment 42 to the FMP. Therefore, 

any negative effect the waiving of public 

comment and delayed effectiveness may 

have on the public is mitigated by these 

factors. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: September 10, 2009. 

Alan D. Risenhoover, 

Director, Office of Sustainable Fisheries, 

National Marine Fisheries Service. 

[FR Doc. E9–22170 Filed 9–10–09; 4:15 pm] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 665 

[Docket No. 080304370–91192–02] 

RIN 0648–AW52 

Fisheries in the Western Pacific; 

Compensation to Federal Commercial 

Bottomfish and Lobster Fishermen 

Due to Fishery Closures in the 

Papahanaumokuakea Marine National 

Monument, Northwestern Hawaiian 

Islands 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: This final rule describes how 

NMFS will compensate eligible and 

interested Northwestern Hawaiian 

Islands (NWHI) commercial lobster 

permit holders who were, and 

commercial bottomfish permit holders 

who will be, displaced by fishery 

closures with the establishment of the 

Papahanaumokuakea Marine National 

Monument (Monument). Congress 

mandated that the compensation be 

based on the economic values of fishing 

permits. NMFS estimated the net 

present value of permits using a proxy 

based on a multiple of annual gross 

revenues. Permit holders who 

voluntarily accept compensation must 

immediately surrender their permits 

and leave the fisheries. 

DATES: This final rule is effective 

October 15, 2009. 

ADDRESSES: Eligible participants in the 

permit compensation program may 

contact William L. Robinson, Regional 

Administrator, NMFS, Pacific Islands 

Region (PIR), 1601 Kapiolani Blvd., 

Suite 1110, Honolulu, HI 96814–4700. 

FOR FURTHER INFORMATION CONTACT: 

Toby Wood, Sustainable Fisheries 

Division, NMFS PIR, 808–944–2234. 

SUPPLEMENTARY INFORMATION: This final 

rule is also available at 

www.gpoaccess.gov/fr. 

Public Law 110–161, the Consolidated 

Appropriations Act of 2008, authorized 

the Secretary of Commerce (Secretary), 

through NMFS, to compensate 

commercial lobster permit holders who 

were, and commercial bottomfish 

permit holders who will be, impacted 

with establishment of the Monument on 

June 15, 2006 (Proclamation 8031, 71 FR 

3644, June 26, 2006, as amended by 

Proclamation 8112, 72 FR 10031, March 

6, 2007). Regulations governing the 

Monument require that any commercial 

lobster fishing permit be subject to a 

zero annual harvest limit, permanently 

closing the NWHI lobster fishery. The 

NWHI commercial bottomfish fishery is 

allowed to operate until June 15, 2011, 

when it will be closed permanently (see 

71 FR 51134, August 29, 2006, and 50 

CFR 404.10). 

Congress authorized funding for the 

compensation in the amount of 

$6,697,500, and directed the Secretary 

to initiate rulemaking for a voluntary 

capacity-reduction program. This final 

rule establishes a process to implement 

the Act. 

A future voluntary vessel and gear 

buyout may be developed once the 

permit compensation is complete, but 

only if funds authorized by the Act are 

available. NMFS would publish a 

separate proposed rule to describe and 

seek public comment on any future 

vessel and gear buyout program, as 

appropriate. 

Eligible Participants 

The Act defines ‘‘eligible 

participants’’ as individuals holding 

commercial Federal fishing permits for 


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lobster or bottomfish within the 

Monument at the time the Monument 

was established. NMFS is not 

authorized to compensate anyone not 

meeting the definition of ‘‘eligible 

participant.’’ NMFS determined eligible 

participants to be holders of eight valid 

commercial Federal permits for 

bottomfish, and holders of 15 valid 

commercial Federal permits for lobster. 

As a condition of voluntarily receiving 

compensation, fishermen must 

immediately surrender their NWHI 

fishing permit to NMFS and agree to 

relinquish any claim associated with 

each permit. 

Compensation Methodology 

In the absence of a documented 

market for the permits, NMFS 

determined the economic value of 

NWHI lobster and bottomfish Federal 

commercial fishing permits by using a 

proxy for the net present value (NPV) of 

the permits that uses imputed 

(estimated) values. The proxy for NPV is 

a multiple of annual gross revenues, 

based on a variety of separate 

investigations of these relationships. 

NMFS determined the permit values 

using reported revenues for the three 

consecutive years in which each fishery 

operated immediately prior to the 

designation of the Monument. 

Bottomfish. NMFS determined the 

economic value of each of the eight 

Federal bottomfish permits individually 

using the base value time period of 

2003–05. The NPV of each individual 

permit reflects the average ex-vessel 

revenue, calculated as the ex-vessel 

gross revenue proxy, times a multiplier 

of approximately 2.5 that considered the 

discount rate. The economic value of 

each permit, and the compensation 

offer, will be different for each of the 

eight permit holders, based on the 

2003–05 official fishing records 

associated with each permit. All 

imputed values will be updated to 

current dollar figures based on 

Consumer Price Indices. 

Lobster. NMFS determined the 

economic value of each of the 15 

Federal lobster permits, collectively, 

using the base value time period of 

1997–99. The NPV of each permit used 

a similar ex-vessel gross revenue proxy 

to reflect the average ex-vessel net 

revenue for the fleet as a whole during 

1997–99, times a multiplier of 

approximately 2.5 that considered the 

discount rate. The economic value of 

each permit, and the compensation 

offer, will be identical for all 15 permit 

holders. Imputed values will be updated 

to current dollar figures based on 

Consumer Price Indices. 

Implementation 

After the effective date of this final 

rule, eligible permit holders will be 

notified in writing of their individual 

permit compensation offer, as 

determined by the compensation 

methodology described above. Within 

30 days of receipt of notification 

(verified by NMFS), each permit holder 

must review the permit compensation 

offer and notify NMFS in writing of 

either their voluntary acceptance or 

non-acceptance of the compensation 

offer. Failure to inform NMFS of a 

decision (i.e., acceptance or nonacceptance decision) by the prescribed 

deadline date is deemed a nonacceptance by the permit holder. This 

determination by NMFS of nonacceptance for compensation is final 

and is not subject to agency appeal. If 

the combined total value of all permits 

is greater than the authorized amount, 

minus NOAA’s administrative costs, 

then the amount of monetary 

compensation disbursed to all 

participants will be prorated. 

At the conclusion of the 30–day 

response period, NMFS or its authorized 

contractor will review responses from 

permit holders, identify those who have 

accepted the offer of permit 

compensation, and disburse funds to the 

permit holders who have accepted. A 

permit holder’s receipt of compensation 

funds will immediately invalidate the 

holder’s Federal permit in the NWHI 

bottomfish and/or lobster fishery, as 

appropriate, and such permit will be 

immediately surrendered to NMFS. 

NMFS will notify the permit holder, at 

the time that funds are disbursed, that 

his or her permit is no longer valid, and 

the vessel is no longer registered to 

participate in the fishery for which 

compensation has been received. 

Vessel owners who do not accept the 

offer of permit compensation are 

authorized to continue fishing in 

accordance with the terms and 

conditions of their respective permits, 

and to the extent otherwise permitted by 

law. Permit holders should note that 

commercial fishing for lobster in waters 

of the Monument is prohibited, and that 

fishing for commercial bottomfish and 

associated pelagic species will be 

prohibited in waters of the Monument 

after June 15, 2011. 

Transferability of Compensation 

The NWHI lobster fishery was closed 

permanently as a result of the 

designation of the Monument, so permit 

compensation will be offered to the 

holder of the permit that was valid on 

the date of the Monument’s designation, 

i.e., June 15, 2006. 

The NWHI bottomfish fishery remains 

open until June 15, 2011. Bottomfish 

permits are not transferrable, so the 

bottomfish permit compensation is 

available only to the holder of the 

permit at the time compensation funds 

are disbursed. Any claim to permit 

compensation is both non-transferable 

and non-assignable. Accordingly, only 

the NWHI bottomfish permit holder of 

record is eligible to receive permit 

compensation under this program. 

Additional background information 

on this final rule may be found in the 

preamble to the proposed rule, and is 

not repeated here. 

Comments and Responses 

On April 7, 2009, NMFS published a 

proposed rule and request for public 

comment (74 FR 15685). The public 

comment period ended on May 4, 2009. 

In addition to one comment that 

supported the methodology for 

determining permit values, NMFS 

received additional public comments, 

and responds as follows: 

Comment 1: For the lobster permit 

valuation, NMFS should have used 

more recent price data, such as that for 

2006, to calculate NPV, rather than 

using data based on an average of gross 

receipts accumulated in the 1997–99 

NWHI lobster fishery. 

Response: The NPV model requires 

identification of annual, or average 

annual, gross receipts upon which to set 

a baseline. Prices depend on a set of 

unique parameters including sameperiod quantities, income, prices of 

substitute and compliment goods. Thus, 

there is no economic rationale to assign 

a 2006 price to a quantity of production 

from 1997–99. 

Comment 2: The model should have 

used an average of 14 years of landings 

data (1983–97), as advocated in a 2007 

report by the Association of NWHI 

Lobster Permit Holders. 

Response: The prices of lobster noted 

in the report were estimated using an 

interpolation of the Urner Barry Market 

Report for frozen lobster tails, most 

likely delivered prices, i.e., including 

shipping costs, from Australia, Brazil, 

and the Caribbean. Therefore, to apply 

those 2006 processed product prices, 

i.e., $23.50 and $13.00 dollars, 

respectively, for spiny and slipper 

lobster to quantities harvested would 

cause a significantly large 

overestimation of gross receipts. NMFS 

data indicate that the real price (in 1996 

dollars) of slipper lobster had been 

relatively stable at $3.20 and $4.00 per 

pound in every year between 1988 and 

2000. The real price (in 1996 dollars) for 

spiny lobster had been between $5.00 


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and $7.00 per pound between 1989 and 

2000. The spiny lobster price had been 

more variable and showed no real trend. 

In addition, the quantity used in the 

report (average landings from 1983–97) 

potentially reflected a fishing-down 

stage of the fishery, which in 

conjunction with an oceanographic 

regime change in the late 1980s, led to 

the yields that were utilized in the 

analysis. Using this quantity would lead 

to an overestimation of the imputed 

value of the permits. 

Comment 3: NMFS should use a 15– 

year period instead of a 30–year period 

to calculate NPV. 

Response: The 30–year NPV 

calculation presupposes that vessels 

(capital) used in the NWHI fisheries will 

be utilized over that period. The NPV 

using a 30–year period would yield a 

higher permit value than over 15 years. 

Thus, NMFS used the 30–year analysis 

period. 

Comment 4: $6.3 million is not 

enough to buy out the combined lobster 

and bottomfish fisheries. 

Response: The Act directs the 

Secretary, through NMFS, to provide 

compensation ‘‘not to exceed the 

economic value of the permit.’’ The total 

amount was appropriated by Congress, 

and NMFS has no discretion to increase 

the amount. 

Comment 5: The ex-vessel revenue 

data regarding lobster prices cited in the 

Regulatory Impact Review (RIR) for the 

proposed rulemaking was not accurate. 

Response: Prices for lobsters were 

obtained from the NMFS Administrative 

Report ‘‘Study of Northwestern 

Hawaiian Islands Lobster Fishery 

Discards (AR-SWR–00–01).’’ No 

information was offered to address any 

possible inaccuracies, so the prices cited 

in the report represent the agency’s best 

available official information on the 

fishery. 

Comment 6: The same formula and 

variables should not be used to 

determine the economic value of lobster 

and bottomfish permits. 

Response: The methodology to 

determine the imputed value of permits 

is a standard capital budgeting approach 

(e.g., F.M. Wilkes, Capital Budgeting 

Techniques, 1977). In this approach, the 

NPV methodology is based on 

underlying principles of economic 

theory in valuing assets over time. To 

properly estimate NPV, the same 

formula and variables are required, 

including baseline, time period, and 

discount rate. The difference is in the 

actual values used to estimate NPV for 

the two fisheries, which depend on their 

context. While there are clear 

differences in the two fisheries from an 

operational point of view, the permits in 

both cases represent assets with an 

investment value. 

Comment 7: The assumption is 

incorrect in the RIR that the profit 

margins are similar for both fisheries. 

Response: The RIR correctly notes 

that profit margins are assumed to be 

similar within each fishery, not between 

them, and would not affect relative 

permit compensations. 

Comment 8: The proposed rule 

improperly assesses different economic 

values for individual bottomfish permits 

based on each fisherman’s catch history 

from 2003–05. Because the bottomfish 

fishery does not use individual quotas, 

a permit holder’s catch history is not 

relevant to determine the market value 

of a permit. The only rationale for 

distinguishing between bottomfish 

sectors would be to recognize that 

vessels fish on either of two zones, the 

Mau and Ho’omalu Zones. 

Response: An approach similar to the 

lobster fishery analysis could have been 

taken for bottomfish, including 

separation into the two management 

zones. Given the ongoing activity in the 

bottomfish fishery, however, NMFS 

determined that it was not appropriate 

to treat all permit holders the same. 

Bottomfish permit holders’ future 

prospects, absent the Monument, were 

determined by their individual 

investments in vessel and gear, and in 

their own skills and experience, 

particularly since bottomfish fishing 

permits were not transferable. An 

established catch history is a reliable 

predictor of future performance, and 

there is no basis to believe that 

individual fishermen would alter their 

behavior over time, aside from overall 

changes in the fishery. 

Comment 9: Because of bad weather, 

vessel repairs, etc., NMFS should use 

time periods other than 2003–05, which 

would result in a higher value for all 

bottomfish permits. Alternatives include 

the three years of highest catch from 

2003–08, or an average of the two best 

years out of the years 2003–05. 

Response: Using three consecutive 

years to determine imputed permit 

value, and keeping the approach similar 

between the lobster and bottomfish 

compensation schemes, strives to 

maintain equity in computing permit 

values between the two fisheries. Basing 

permit values on alternative time 

periods for the bottomfish permit 

holders would not be equitable to the 

lobster permit holders, who faced the 

same constraints prior to closure of their 

fishery in 2000. Hence, for reason of 

fairness, NMFS will use the three-year 

period 2003–05 to calculate the average 

individual ex-vessel gross revenue to 

determine permit values for bottomfish 

permits. 

Comment 10: The proposed permit 

values do not accurately reflect the 

value that fishermen put on their way of 

life. 

Response: Congress intended the 

compensation be for no more than the 

economic value of the permit. 

Accordingly, NMFS did not consider 

using other forms of valuation, such as 

intrinsic value of fishing lifestyles, to 

implement the compensation program. 

Comment 11: NMFS has recently 

estimated bottomfish stock biomass in 

the NWHI to be at 150% of maximum 

sustainable yield, thus promising high 

abundance for the future. 

Response: NMFS interprets this 

comment to mean that the potential 

value of bottomfish permits would be 

higher than using the catches from 

2003–05. Stock assessments are good 

gauges of present status of a stock, but 

have been proven to be accurate 

predictors of stock levels only in the 

very near term and certainly not over a 

30–year period. The NPV model used 

here is not a predictive model, nor does 

it attempt to optimize future returns; it 

is used simply to calculate a lump sum 

payment based on the present value of 

future returns given a specific baseline 

in the form of average gross receipts, 

discount rate, and time line. Stochastic 

net benefit models are frequently 

utilized for public policy decisions; 

however, these are usually applied to 

specific physical projects of a much 

shorter duration where probabilities of 

future economic events are measurable 

with an acceptable level of confidence. 

Comment 12: To address equity and 

fairness, the compensation amount 

should be divided equally among 

eligible permit holders in the bottomfish 

fishery. 

Response: NMFS determined that the 

most equitable method to establish a 

baseline for the NPV model was to use 

actual gross receipts earned by 

individual vessels. This process is 

inherently most fair because each 

producer is compensated based on 

individual fishing behavior and 

documented earnings. 

Comment 13: NMFS should clarify 

the principles of equity and efficiency 

as they relate to the bottomfish permit 

valuations. 

Response: As described in the RIR, 

addressing efficiency is the norm for 

capacity-reducing buyouts where the 

buyout is conducted as an auction in 

which participants have a choice of 

whether to accept a government offer to 

buy or retire their permits and/or 

vessels for a particular price. This is 

termed ‘‘willingness to accept’’ 


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compensation for giving up their fishing 

rights. The participant may also reject 

the government’s offer and choose to 

continue fishing. Efficiency solutions, 

on the other hand, require a market (in 

this case, for permits) or a survey of the 

values of willingness-to-accept. The 

NWHI situation has neither option; exit 

from the bottomfish fishery is 

involuntary. Accordingly, the permit 

compensation program addresses 

equity, rather than efficiency. Imputing 

the values is the most equitable method 

of compensation for early fishery 

closures (although the bottomfish 

fishery will officially remain open until 

June 2011). Thus, NMFS relied on 

historical data that reflect gross receipts 

and historical cost-earnings 

relationships for bottomfish as being 

most equitable to the different levels of 

investment and history of the 

participants in the fishery. 

Individual valuations could not be 

developed for the lobster fishery 

because management constraints, such 

as area-specific quotas and industry 

cooperatives, changed individual 

fishing behavior dramatically in the 

final years of the fishery. For example, 

some vessels fished only intermittently, 

and all were constrained by annual 

harvest guidelines. Thus, gross receipts 

did not present a reliable baseline for 

individual vessels in the lobster fishery. 

Comment 14: NMFS should clarify 

where it will spend the $336,029 it 

removed from the amount available to 

compensate fishermen. 

Response: NOAA expended $197,500 

for internal indirect costs and $138,529 

to contract the Pacific States Marine 

Fisheries Commission for coordinating 

and administering the disbursement of 

compensation funds to eligible 

participants. 

Comment 15: NMFS should not 

require eligible bottomfish participants 

who accept permit compensation to exit 

the NWHI fishery prior to June 15, 2011. 

Response: Allowing fishing to 

continue is not consistent with the 

intent of the Act, which provided 

compensation for a voluntary capacityreduction program. In addition, if a 

vessel owner decides to accept 

compensation, that owner would, in 

effect, receive compensation for that 

remaining portion of the 2009 fishery, 

the entire 2010 fishery, and the 2011 

fishery until June 15, because 

compensation is part of the stream of 

benefits comprising the NPV of a 

vessel’s landings from 2007 to 2036 

Comment 16: The government should 

not compensate fishermen using public 

funds; just stop the fishing pressure on 

public resources. 

Response: NMFS is mandated by 

Congress to compensate eligible 

bottomfish and lobster fishermen who 

were, or will be, forced out of their 

respective fishery with the 

establishment of the Monument. 

Changes From the Proposed Rule 

No changes were made from the 

proposed rule. 

Classification 

The NMFS Assistant Administrator 

has determined that this final rule is 

consistent with the Consolidated 

Appropriations Act of 2008 and other 

applicable laws. 

This final rule has been determined to 

be significant for purposes of Executive 

Order 12866. 

A final regulatory flexibility analysis 

(FRFA) was prepared. The FRFA 

incorporates the IRFA, and a summary 

of the significant issues raised by the 

public comments in response to the 

IRFA. The analysis follows: 

NMFS prepared this FRFA for the rule to 

provide compensation to Federal NWHI 

commercial bottomfish and lobster fishermen 

due to fishery closures in the 

Papahanaumokuakea Marine National 

Monument. This FRFA incorporates the 

initial regulatory flexibility analysis (IRFA) 

prepared for the proposed rule (74 FR 15685; 

April 7, 2009). The analysis provided in the 

IRFA is not repeated here in its entirety. 

The need for, reasons why action by the 

agency is being considered, and the 

objectives of the action are explained in the 

preambles to the proposed and final rules 

and are not repeated here. This rule does not 

duplicate, overlap, or conflict with any other 

Federal rules. There are no disproportionate 

economic impacts from this action based on 

vessel size or home port. There are no 

recordkeeping, reporting, or other 

compliance requirements associated with 

this rule. The action is taken under authority 

of the Consolidated Appropriations Act, 2008 

(Act). 

Description of Small Entities to Which the 

Rule Would Apply 

This action will impact the vessel owners 

who held 15 NWHI lobster permits and eight 

NWHI bottomfish permits at the time the 

Monument was designated. These permit 

holders were determined by NMFS to be 

eligible for compensation under the Act. The 

Small Business Administration’s accepted 

definition of a small fish harvester is a vessel 

that produces no more than $4.0 million in 

gross revenue annually. Using this definition, 

all permit holders who are eligible for 

compensation are defined as small entities. 

Economic Impact to Small Entities 

There will be no adverse economic impact 

to any of the eligible permit holders resulting 

from this rule. For bottomfish permit holders, 

the amount of monetary compensation 

available will be the NPV of each 

individual’s average net revenue for the years 

2003–05 using a discount rate equal to the 

real interest rate on 30–year treasury notes 

and bonds, discounted over a 30–year period. 

The lobster permit holders will receive 

compensation in the form of equal payments 

derived from NPV of the fleet-wide average 

net revenue for 1997–99. The NPV for the 

lobster fishery would use the same discount 

rate and time period as the value imputed for 

bottomfish permit holders. The real interest 

rate for 30–year treasury notes and bonds as 

prescribed by Office of Management and 

Budget, Circular A–4, Appendix A, is 2.7 

percent. 

In the event that costs are unavailable or 

unreliable for a net revenue calculation, 

NMFS will use a proxy for net revenue based 

on total or gross revenue. Since profit 

margins within each fishery are assumed to 

be similar, this would not affect relative 

amounts of compensation. In addition, with 

a relatively low real discount rate (2.7 

percent) and long time frame (30 years), the 

differences between net and total revenues 

will be mitigated. 

Comments and Responses 

NMFS received one comment on the IRFA 

and responds, as follows. 

Comment 1: The IRFA appears to be 

incomplete in that it does not fully contain 

the required elements and analyses. Among 

other things it does not describe a range of 

alternatives but instead only describes the 

impacts of the proposed rule. In addition, the 

IRFA fails to consider measures to minimize 

adverse impacts on fishery participants such 

as waiving the requirement that participants 

in the compensation program exit the NWHI 

fishery prior to June 15, 2011. This is 

especially appropriate as there is no 

requirement for this in the Act and there are 

no overfishing or other environmental issues 

that would necessitate these early departures. 

If the immediate exit provision is to be 

retained, the compensation packages should 

be directly increased to fully include the 

additional two years of foregone revenues. 

Response: The IRFA is consistent with 

§ 603 of the Regulatory Flexibility Act and 

Agency guidelines for regulatory analysis. 

The required elements of a IRFA include, 

verbatim, a description of the reasons why 

action by the agency is being considered, a 

succinct statement of the objectives of, and 

legal basis for, the proposed rule, a 

description and, where feasible, an estimate 

of the number of small entities to which the 

proposed rule will apply, a description of the 

projected reporting, recordkeeping, and other 

compliance requirements of the proposed 

rule, including an estimate of the classes of 

small entities which will be subject to the 

requirements of the report or record, an 

identification, to the extent practicable, of all 

relevant Federal rules, which may duplicate, 

overlap, or conflict with the proposed rule. 

Each IRFA shall also contain a description of 

any significant alternatives to the proposed 

rule which accomplish the stated objectives 

of applicable statutes and which minimize 

any significant economic impact of the 

proposed rule on small entities. 

For purposes of this rulemaking, there are 

no significant alternatives to the proposed 

rule which accomplish the stated objectives 

of applicable statutes and which minimize 


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any significant economic impact of the 

proposed rule on small entities. The noaction alternative would not accomplish the 

stated objectives of the Act and, therefore, is 

not a significant alternative. 

Allowing fishing to continue is not 

consistent with the intent of the Act, which 

provided compensation for a voluntary 

capacity-reduction program. Furthermore, 

there will be no adverse economic impacts to 

be minimized here because all recipients of 

compensation will benefit. If a vessel owner 

decides to accept compensation as described 

in the proposed rule, that owner would, in 

effect, receive compensation for that portion 

of the 2009 fishery, the entire 2010 fishery, 

and the 2011 fishery until June 15, 2011, as 

part of the stream of benefits comprising the 

NPV of a vessel’s landings from 2007 to 2036. 

Therefore, allowing a vessel to continue to 

fish until June 2011 would be an additional 

de facto compensation not discussed or 

described in the Act. 

Additional comments on the validity of the 

NPV model and other economic concerns are 

addressed in the preamble to this rule and 

are not repeated here. 

Small Entity Compliance Guide 

Section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 1996 

requires, for each rule or group of related 

rules for which an agency is required to 

prepare a FRFA, that the agency publish one 

or more guides to assist small entities in 

complying with the rule, and designate such 

publications as ‘‘small entity compliance 

guides.’’ The agency must explain the actions 

a small entity is required to take to comply 

with a rule or group of rules. As part of this 

rulemaking process, a small entity 

compliance guide was prepared and will be 

sent to all eligible participants. In addition, 

copies of this final rule and small entity 

compliance guide are available from 

NMFS(see ADDRESSES) and are also available 

at www.fpir.noaa.gov/SFD/SFD_regs_2.html. 

Authority: Pub. L. 110–161 

Dated: September 9, 2009. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. E9–22181 Filed 9–14–09; 8:45 am] 

BILLING CODE 3510–22–S 


srobinson on DSKHWCL6B1PROD with RULES