[Federal Register Volume 74, Number 177 (Tuesday, September 15, 2009)]
[Rules and Regulations]
[Pages 47119-47123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22181]



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 

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 

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

SUPPLEMENTARY INFORMATION: This final rule is also available at 
    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 
    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

[[Page 47120]]

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.


    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 non-acceptance decision) by the 
prescribed deadline date is deemed a non-acceptance by the permit 
holder. This determination by NMFS of non-acceptance 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 same-period 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

[[Page 47121]]

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 
    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 
    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''

[[Page 47122]]

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 
capacity-reduction 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.


    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 
    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 
    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 Sec.  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

[[Page 47123]]

any significant economic impact of the proposed rule on small 
entities. The no-action alternative would not accomplish the stated 
objectives of the Act and, therefore, is not a significant 
    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]