[Federal Register Volume 74, Number 65 (Tuesday, April 7, 2009)]
[Proposed Rules]
[Pages 15685-15688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7860]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 080304370-9128-01]
RIN 0648-AW52


Fisheries in the Western Pacific; Compensation to 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: Proposed rule; request for public comments.

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SUMMARY: The Consolidated Appropriations Act, 2008, authorizes the 
Secretary of Commerce (Secretary), through NMFS, to provide monetary 
compensation to eligible Northwestern Hawaiian Islands (NWHI) 
commercial lobster permit holders who were, and commercial bottomfish 
permit holders who will be, displaced by fishery closures resulting 
from establishment of the Papah naumoku kea Marine National Monument 
(Monument) in the NWHI. This proposed rule describes and seeks public 
comment on a permit compensation proposal, which identifies eligible 
permit holders and describes the permit valuation methodology. Holders 
of NWHI commercial Federal bottomfish and lobster permits who 
voluntarily accept monetary compensation would be required to surrender 
their permits and leave the fisheries.

DATES: Comments must be received by May 4, 2009.

ADDRESSES: You may submit comments on the proposed rule, identified by 
0648-AW52, by either of the following methods:
    <bullet> Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal www.regulations.gov; or
    <bullet> Mail: William L. Robinson, Regional Administrator, NMFS, 
Pacific Islands Region (PIR), 1601 Kapiolani Blvd., Suite 1110, 
Honolulu, HI 96814-4700.
    Instructions: All comments received are a part of the public record 
and will generally be posted to www.regulations.gov without change. All 
personal identifying information (for example, name, address, etc.) 
submitted voluntarily by the commenter may be

[[Page 15686]]

publicly accessible. Do not submit confidential business information, 
or otherwise sensitive or protected information. NMFS will accept 
anonymous comments for publication and response, as appropriate (if you 
wish to remain anonymous, enter ``NA'' in the required name and 
organization fields). Attachments to electronic comments will be 
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file 
formats only.
    A regulatory impact review (RIR) that describes in more detail the 
permit valuation methodology, and an environmental assessment (EA) that 
analyzes the potential impacts of the proposed rule on the environment, 
are available from William L. Robinson (see ADDRESSES) and 
www.regulations.gov. An initial regulatory flexibility analysis (IRFA) 
is found in the section below.

FOR FURTHER INFORMATION CONTACT: Toby Wood, Sustainable Fisheries 
Division, NMFS PIR, 808-944-2234.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This proposed rule is also accessible on the World Wide Web at 
www.gpoaccess.gov/fr.

Background

    On December 26, 2007, the President signed Public Law 110-161, the 
Consolidated Appropriations Act of 2008. The Act authorizes the 
Secretary to provide a mechanism for compensating bottomfish and 
lobster fishermen who were impacted as a result of the creation 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). 
Final regulations governing the Monument require that any commercial 
lobster fishing permit be subject to a zero annual harvest limit. Those 
regulations permanently closed 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). Funding is authorized to develop and 
implement a program to compensate eligible persons who held valid 
commercial Federal NWHI bottomfish and lobster permits at the time the 
Monument was created. The Act appropriates $6,697,500 and directs the 
Secretary to promulgate rulemaking for a voluntary capacity reduction 
program that does the following:
    (1) Identifies eligible NWHI bottomfish and lobster fishery permit 
holders affected by the establishment of the Monument;
    (2) Provides a mechanism to compensate eligible permit holders for 
no more than the economic value of their permits; and
    (3) In addition to the permit compensation provided under 
subparagraph (2) above, provides an optional funding mechanism whereby 
eligible participants may choose to receive additional compensation 
based on the value of their fishing vessel and gear, provided such 
vessels and gear will no longer be used for fishing.
    This proposed rule would identify eligible permit holders and 
establish a process for voluntary permit compensation. A voluntary 
vessel buyout program is contingent on the availability of funds 
following the permit compensation, and NMFS does not propose to carry 
out this optional mechanism until after the initial permit compensation 
is complete. If funds are available, NMFS would publish a separate 
proposed rule that describes and seeks public comment on a vessel and 
gear buyout program.

Eligible Participants

    The Act defines ``eligible participants'' as individuals holding 
commercial Federal fishing permits for either lobster or bottomfish in 
the designated waters within the Monument, at the time the Monument was 
established on June 15, 2006. NMFS has preliminarily identified 
eligible participants as holders of eight valid commercial Federal 
permits for bottomfish, and holders of 15 valid commercial Federal 
permits for lobster. NMFS is not authorized to provide compensation to 
any persons not meeting the definition of ``eligible participants'' 
under the program described in this proposed rule. As a condition of 
participation in the proposed program, eligible permit holders who 
voluntarily accept and receive permit compensation must immediately 
surrender their NWHI fishing permit to NMFS and agree to relinquish any 
claim associated with each permit.

Proposed NWHI Permit Compensation Methodology

    NMFS proposes to determine the economic value of NWHI lobster and 
bottomfish Federal commercial fishing permits by using a proxy for the 
Net Present Value (NPV) of the permit that uses imputed (estimated) 
values in the absence of a documented market for the permits. NPV is 
commonly used in cash flow analyses to identify, evaluate, and compare 
the value of a particular investment. The components of the NPV 
calculation include (1) an initial base value, often revenue, for one 
or more years of fishing, (2) a discount rate to adjust the base value 
for the value of future earnings, and (3) the time period over which 
the base value will be discounted. For both lobster and bottomfish 
permits, NMFS proposes to use a discount rate of 2.7 percent (the real 
interest rate for a Treasury bond as prescribed by Office of Management 
and Budget, Circular A-4, Appendix C, revised January 2008 
(www.whitehouse.gov/omb/circulars/a094/a94_appx-c.html) over a period 
of 30 years. This 30-yr period is based on the approximate life of a 
typical fishing vessel and the de facto reality that discounting 
outside a 30-yr time horizon returns low values. It is also the typical 
period of tax table depreciation, and is a standard time horizon for 
capital asset budgeting.
    The NPV formula accounts for the flow of the valuation variable 
over an agreed time period:
[GRAPHIC] [TIFF OMITTED] TP07AP09.005

where i is the year index, N is the length of the evaluation period, 
income to permit holder is the proxy for net revenue, and [lambda] is 
the discount rate over the evaluation period. Because the discount rate 
is positive, the discounted NPV will necessarily be less than the total 
of individual payments were NMFS to propose making annual partial 
payments over the 30-year period.
    The proxy for NPV of net revenue is a multiple of annual gross 
revenue based on a variety of separate investigations of these 
relationships (which are not precise, but in which gross revenue has 
the benefit of being more transparent, within the constraints

[[Page 15687]]

of Federal confidentiality statutes, and straightforward to calculate).
    While NMFS proposes to use standard NPV methodology to determine 
the economic value of commercial fishing permits in both the lobster 
and bottomfish fisheries, NMFS proposes two distinctly different time 
periods for the determination of the base value. NMFS proposes that 
this time period be the three consecutive years in which each fishery 
operated immediately prior to the designation of the Monument. These 
time periods are different for each fishery in recognition of different 
operational and historical circumstances of each fishery.

Bottomfish

    NWHI bottomfish permits were/are not transferable, so there was no 
established market on which to determine their value. Thus, NMFS 
proposes to determine the economic value of each of the eight Federal 
bottomfish permits individually using the base value time period of 
2003-05. That is, the NPV of each permit, individually, would reflect 
the average ex-vessel net revenue, calculated as the ex-vessel gross 
revenue proxy times a multiplier of approximately 2.5 that considers 
the discount rate, determined by NMFS examination of documented records 
for the 2003-05 time period. Thus, the economic value of each permit, 
and the NMFS compensation offer, will be different for each of the 
eight permit holders, based on the 2003-05 fishing record associated 
with each permit (i.e., the average individual ex-vessel gross revenue 
for 2003-05 multiplied by approximately 2.5). All imputed values will 
be updated to current dollar figures based on Consumer Price Indices.

Lobster

    NWHI lobster permits were/are transferable, so it is theoretically 
possible to consider market exchange values were they available to 
NMFS. However, this would likely be problematic for several reasons. 
The NWHI lobster permit market is small, unmonitored, and has been 
largely inactive over the past eight years. In the later years of 
operation, the lobster fishery was undergoing operational changes 
including the formation of a cooperative to manage fishing capacity and 
costs, and to share revenue among permit holders. Also, some vessels 
were experimenting with higher value-added production methods to allow 
the export of live lobsters to Asian markets. All of these factors make 
it difficult to determine the economic value of each individual lobster 
permit.
    Thus, NMFS proposes to determine the economic value of each of the 
15 Federal lobster permits collectively using the base value time 
period of 1997-99. That is, the NPV of each permit would use a similar 
ex-vessel gross revenue proxy to reflect the average ex-vessel net 
revenue for the fleet as a whole for the 1997-99 time period, times a 
multiplier of approximately 2.5 that considers the discount rate. Thus, 
the economic value of each permit, and the NMFS compensation offer, 
will be identical for all 15 permit holders. All imputed values will be 
updated to current dollar figures based on Consumer Price Indices.

Implementation

    NMFS proposes to notify eligible permit holders in writing of their 
individual permit compensation offer, as determined by the compensation 
mechanism described herein. It is important to note that if the total 
economic value of all permits combined is greater than the authorized 
amount minus administrative costs associated with implementing the 
compensation program, then the amount of monetary compensation 
disbursed to all participants would be prorated. Within 30 days of 
receipt of notification, each permit holder would need to review the 
permit compensation offer, and would be required to 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 non-acceptance decision) by the prescribed deadline date 
would be deemed a non-acceptance by the permit holder. This 
determination by NMFS of non-acceptance for compensation shall be 
deemed final and is not subject to agency appeal.
    At the conclusion of the 30-day response period, NMFS or its 
authorized contractor would review all responses from permit holders, 
identify those who have accepted NMFS' offer of permit compensation, 
and disburse compensation funds to the permit holders who have 
accepted. A permit holder's acceptance of compensation funds would 
immediately invalidate the holder's Federal permit in the NWHI 
bottomfish and/or lobster fishery, as appropriate, and such permit 
would be immediately surrendered to NMFS. NMFS would notify the permit 
holder, at the time that compensation funds are disbursed, that his or 
her permit is no longer valid, and the vessel would no longer be 
eligible to participate in the fishery for which compensation has been 
received. Vessel owners who have not accepted NMFS' 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 now prohibited, and 
that fishing for commercial bottomfish and associated pelagic species 
will be prohibited in waters of the Monument after June 15, 2011. NMFS 
solicits comments on the proposed compensation methodology and process.

Transferability of Compensation

    Given that the NWHI lobster fishery was closed permanently as a 
result of the designation of the Monument, any permit compensation 
would be provided to the holder of the permit that was valid on the 
date of the Monument's designation, i.e., June 15, 2006. Although the 
NWHI bottomfish fishery remains open until June 15, 2011, the permits 
are not transferrable, so the bottomfish permit compensation would be 
available only to the holder of the permit at the time the compensation 
funds are disbursed. Since bottomfish permits are not transferable, any 
claim to permit compensation is both non-transferable and non-
assignable. Accordingly, only the NWHI bottomfish permit holder of 
record shall be deemed an eligible participant for purposes of 
receiving permit compensation under this program.

Future Vessel and Gear Buyout Compensation

    Contingent on the availability of appropriated funds after all 
permit compensation payouts have been made, NMFS proposes to offer 
compensation to buy back vessels and gear from eligible participants, 
based on the fair market value of the vessels and gear. For purposes of 
this proposed program, ``eligible participants'' shall have the same 
meaning as described in the permit compensation program above. Because 
of the limited funds appropriated by Congress for this purpose, there 
is no guarantee that NMFS actually will offer compensation for any, or 
all, vessels and gear that otherwise may qualify for this program.
    NMFS proposes to use a standard approach in vessel buyout, i.e., 
reverse auction, where each eligible permit holder would specify a 
buyout price for retiring their vessel(s) from commercial fishing. NMFS 
would rank and accept bids, and disburse funds, beginning with the 
lowest bid and continuing through the bids sequentially until remaining 
funds were exhausted. Public

[[Page 15688]]

comments are sought on this approach and possible alternatives, 
including methods for valuing vessels and associated gear, and other 
standard approaches, such as a lottery system or blind auction.
    Consistent with the purposes of this buyout, NMFS would require, as 
a condition of compensation, proof that the vessel and gear have been 
permanently removed from use in all U.S. commercial fisheries, as 
defined in 46 U.S. Code Sec.  12101(a). Proof of permanent removal from 
fisheries may be satisfied by taking any of the following actions:
    (1) Providing evidence of scrapping the vessel, which would require 
disassembly and/or scuttling the vessel in an ecologically safe manner. 
This method suggests additional costs which would need to be considered 
in the buyout process; or
    (2) Surrendering the vessel's fishery endorsement and transferring 
the vessel to non-fishing uses. For example, vessels could be 
transferred to a U.S. public entity, a U.S. nonprofit organization, or 
a foreign national government for use in research (including fisheries 
research), education, training, humanitarian work, safety or law 
enforcement, etc., depending on the group's objectives.
    NMFS proposes that vessel owners bear all costs associated with the 
scrapping or transfer of vessels that are bought out under this 
program. Funds received from the buyout compensation can be used for 
this purpose.

Classification

    The NMFS Assistant Administrator has determined that this proposed 
rule is consistent with the Consolidated Appropriations Act of 2008 and 
other applicable laws, subject to further consideration after public 
comment.
    This proposed rule has been determined to be significant for 
purposes of Executive Order 12866.
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act. The IRFA describes the economic impact this proposed 
rule, if adopted, would have on small entities as follows. A 
description of the action, why it is being considered, and the legal 
basis for this action are found at the beginning of this section in the 
preamble and in the SUMMARY section of the preamble. The analysis 
follows:

    This proposed rule 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 
initially by NMFS to be eligible for compensation under The Act. The 
Small Business Administration's accepted definition of a small fish 
harvester as 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. 
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 
proposed rule. There are no Federal rules that duplicate, overlap, 
or conflict with this rule. There would be no adverse economic 
impact to any of the eligible NWHI bottomfish and lobster permit 
holders resulting from this rule.
    For bottomfish permit holders, the amount of monetary 
compensation would be derived from an NPV calculation using average 
ex-vessel net revenue projected over 30 years, and would be imputed 
as the ex-vessel gross revenue for 2003-05 times a multiplier of 
approximately 2.5, which is based on the 30-yr discount rate.
    The lobster permit holders would receive compensation in the 
form of equal payments derived from NPV of the fleet-wide average 
ex-vessel net revenue for 1997-99, and imputed using a similar ex-
vessel gross revenue determination times the multiplier of 
approximately 2.5, based on the 30-yr discount rate. The 1997-99 
period represents the last years that lobster fishing in the NWHI 
operated under NMFS harvest guidelines. 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.
    While the intention is to base the imputed value on net revenue 
calculations, this is difficult given the unavailability of 
individual cost data. Therefore, 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.
    NMFS will estimate the permit values using official NMFS and 
State of Hawaii commercial fishing records for the respective time 
periods. For a more thorough description of the methodology used to 
determine the economic values of these permits, see Appendix A to 
the RIR (see ADDRESSES). Any residual funds following the permit 
compensation program would be available for the vessel and gear 
buyout program using a standard vessel buyout approach, such as a 
reverse auction, lottery system, or blind auction.

    Authority: Pub. L. 110-161.

    Dated: April 2, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E9-7860 Filed 4-6-09; 8:45 am]
BILLING CODE 3510-22-S