[Federal Register Volume 61, Number 212 (Thursday, October 31, 1996)] [Notices] [Pages 56217-56221] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-27902] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE [Docket No. 960412111-6297-04; I.D. 102396C] RIN 0648-ZA20 West Coast Salmon Fisheries; Northwest Emergency Assistance Plan--Washington Salmon License Buy Out AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final program notice. ----------------------------------------------------------------------- SUMMARY: NMFS issues this notice to describe the final program requirements and to respond to comments on proposed bidding options for the 1996 Washington Salmon License Buy Out (WSLB). Pursuant to the authority under the Interjurisdictional Fisheries Act (IFA), the Secretary of Commerce (Secretary) has made funds available to the Washington Department of Fish and Wildlife (WDFW) to buy out salmon permits. The objectives of the program are to provide financial assistance to commercial salmon fishermen adversely impacted by the salmon fishery disaster, and to aid the long-term viability of the fishery resource. DATES: Effective upon October 25, 1996. FOR FURTHER INFORMATION CONTACT: Stephen Freese, (206) 526-6113. SUPPLEMENTARY INFORMATION: On August 2, 1995, the Secretary declared that a fishery resource disaster continued in 1995 for the salmon fisheries of the Pacific States of California (north of San Francisco), Oregon, and Washington, excluding Puget Sound. Under the authority of the IFA of 1986 (16 U.S.C. 4107(d)), as amended, an additional $12.7 million in Federal financial assistance was made available for affected salmon fishermen, of which $5.25 million was set aside for a WSLB program. However, the Governor of Washington has requested that $50,000 be transferred to the Data Collection Jobs Program for use in a troll data collection study. If approved, this $50,000 will be taken from the funds initially allocated for the purchase of troll licenses, and will reduce the 1996 WSLB funds available to $5.2 million. The Secretary already provided $4 million for a similar program in 1995, bringing the total amount allocated to license buy outs to $9.2 million. (See Federal Register notice of October 11, 1994 (59 FR 51419), with subsequent amendments published on January 31, 1995 (60 FR 3908), and June 22, 1995 (60 FR 32507)). On April 23, 1996, NMFS published a Federal Register notice (61 FR 17879) that provided the public with notice of a proposed WSLB program and requested comment on four proposed bidding options. The August 1, 1996, final notice (61 FR 40197) announced the final description for the Northwest Emergency Assistance Plan (NEAP) Habitat Restoration Program and the Data Collection Jobs Program, but cited state and local concerns and a lack of public consensus as grounds for the agency's deferral of the final decision on a buy out program until new bidding options were developed and the public was given notice and an opportunity to comment. NMFS and the State of Washington then worked together to develop two new options that were similar to the options presented in the April 23, 1996, Federal Register notice, but with important differences. One difference was that the calculation of uninsured loss was no longer necessary under the recently amended IFA. (The IFA was amended during the public comment period associated with the April 23, 1996 notice.) This calculation was replaced by an analogous calculation, ``salmon disaster impact'' (SDI), which is equal to 2.5 times the difference between a fisherman's highest gross salmon fishery income derived from fishing during any calendar year 1986 through 1991 (base year), and the sum of the least amount of gross salmon fishery income derived from commercial salmon fishing during any calendar year from 1991 through 1995 (comparison year). The use of SDI in place of an uninsured loss determination puts similar restrictions on new participants as were placed on the original participants in the 1995 WSLB. Another difference was that the two new options placed lower ceilings on the maximum amount a fisherman can receive for his permit. The following options were presented for public comment in the notice of August 29, 1996 (61 FR 45408). Option 1--License holders may offer their licenses for any amount up to $40,000 or their SDI, whichever is less. Licenses will be purchased starting with the lowest bid. In the event of a tie, preference will be given to the fisherman with the highest SDI. Option 2--License holders may offer their licenses for any amount up to $50,000 or their SDI, whichever is less. [[Page 56218]] Bids will be ranked according to the offer ratio. The offer ratio is the division of the offer amount by the SDI. Licenses will be ranked and purchased starting with those bids that have the lowest offer ratios. In the event of a tie between identical offer ratios, the lowest offer will be given preference. Successful participants cannot purchase or operate another Washington State commercial salmon troll, salmon delivery, Gray's Harbor-Columbia River salmon gillnet, Willapa Bay-Columbia River salmon gillnet, or salmon charter license for 10 years beginning January 1, 1997, unless the license was owned or operated by that person in 1995. Comments and Responses In response to the August 29, 1996, notice of proposed program, NMFS received 17 comment letters, two from fishing associations and 15 from fishermen, covering 15 comments. Comment 1: The definition of ``fishing income'' should be revised to include only fishing income from Washington deliveries because including income from Oregon and California deliveries is unfair for fishermen who only have a Washington license. If Oregon or California implement buy out programs, only landings in those states should count for fishing income. Furthermore, the commenter felt that successful bidders to the 1995 and 1996 buy out programs should not be able to qualify for future programs. Response 1: Redefinition of ``fishing income'' as income from Washington deliveries would affect those fishermen who have also invested in licenses from other states. The resource conditions underlying the Secretary's two disaster declarations in Northern California, Oregon, and Washington have also affected these investments in other states. Furthermore, both NMFS and the State of Washington agree that the current definition of ``fishing income'' should be maintained in order to expand participation in the 1996 WSLB, maintain consistency with the 1995 WSLB and with the other NEAP programs, minimize the paperwork burden on fishermen, and avoid further delay in implementing the 1996 WSLB. The design and implementation of future buy out programs will depend on the relevant state and Federal regulations, funding sources, public needs, and state and Federal policy concerns. Comment 2: The base years should be changed to the years 1975 to 1980 and the comparison years should be changed to the years 1981 to 1996 to reflect the sharp decline in the Washington troll fishery that occurred in 1981-82. Response 2: The Secretary's 1995 declaration limits the disaster period, or comparison years, to the years 1991 through 1995. Using years prior to 1986 for the ``good'' years, or base years, especially the years 1975 to 1980, would not be representative of the potential earnings fishermen would normally expect to earn, absent the disaster. Prices, general stock levels, fisheries management practices, user group allocations and the number of participants for the 1986-91 period differed greatly from the 1975-80 period. Furthermore, after numerous consultations with affected fishermen, a general consensus developed around using 1986-90 as the base years for calculation of losses due to the salmon resource disaster. A review of pertinent fishing data also supports using these years for comparison with the disaster years outlined in the prior NEAP-related Federal Register notices. Comment 3: Six commenters opposed Option 2's ten-year license purchase exclusion, especially since fishermen who participated in the 1995 WSLB were allowed to purchase new Washington permits. Two commenters supported the exclusion provision, and one commenter stated that such an exclusion should have been imposed from the beginning of the program. Response 3: The 1995 License Buy Out Program was intended to achieve two goals: (1) To compensate commercial fishermen for uninsured lost income, and (2) to aid the long-term viability of the fishery resource. Each salmon license has the same potential capacity for producing effort because licenses are transferable among fishermen and vessels. Given the high number of slightly active permit holders, the 1995 WSLB was predicated on removing the maximum number of permits in order to have the greatest effect on capacity. This reflected a concern that, if high prices were paid for licenses, many productive fishermen would participate in the program and then return to the fishery by purchasing a low-priced permit from a marginal producer. This concern was countered, however, by numerous industry comments that the 1995 program focused only on the marginal producer. Therefore, Option 2 is designed to enhance the participation of more productive fishermen, who arguably have been most impacted by the resource disaster. The 10-year license ownership and operation prohibition has two purposes: (1) To achieve the NEAP goal of capacity reduction and prevent capacity recycling, since less capacity, in the form of fewer permits, is likely to exit the fishery due to the higher prices and limited government funds; and (2) to provide an adequate and reasonable counterbalance to those who may submit and receive higher offers. While the 1996 WSLB enhances the competitiveness of high offers, which some members of the public believe will disadvantage smaller bidders, this enhanced competitiveness is offset by the 10-year license purchase or operation prohibition. Comment 4: Long term relief for unsuccessful bidders should be better defined. Response 4: Implementation of the 1996 WSLB will exhaust all available funds under the NEAP and the IFA and future Federal programs will depend on additional appropriations. However, a long-term benefit does accrue to unsuccessful bidders, regardless of future funding. The fishermen who remain in the fishery will face decreased competition as a result of the buy out, and the decreased capacity should also accelerate stock recovery. Comment 5: Option 1 provides the greatest benefits to the greatest number of fishermen. Response 5: Offers submitted under Option 1 would probably be lower, thereby enabling the government to retire more permits and compensate a greater number of fishermen. Conversely, higher prices would be paid under Option 2, leading to fewer licenses being purchased. Option 2 intended to counterbalance concerns that purchasing the maximum number of permits effectively excludes from competition many of those who suffered the greatest losses. However, under either option, all eligible fishermen may participate and ultimately, the competition among bidders will determine who benefits and to what extent. Likewise, under either option, the WSLB may directly benefit those who exit the fishery, but will also indirectly benefit those remaining fishermen who will face fewer competitors on the fishing grounds and in the marketplace. Comment 6: Commenters both supported and opposed a lower maximum offer limit for the 1996 WSLB. Four commenters complained that the maximum offer limits were too low, arguing that they are offering up a lifetime fishing career, and some will be using NEAP funds for retirement purposes. One commenter stated that, under Option 2, if the 1996 WSLB maximum amounts equal the maximum amount paid under the 1995 program, 1996 participants would make a greater sacrifice, because they would be excluded from the fishery for 10 years but would receive no greater [[Page 56219]] compensation than the 1995 participants. On the other hand, another commenter stated that, in order to attract the major producers, the maximum offer amount should be at least $100,000. Many fishermen did not participate in the 1995 WSLB because the $100,000 limit was below the value of their business. Response 6: The NEAP is a voluntary program, and as with the other NEAP programs, the WSLB is not designed to be an entitlement or retirement program. However, after consideration of the public comments, input from state and local officials, and analysis of the 1995 WSLB program, both NMFS and the State of Washington agree that a maximum offer limit of $75,000 is appropriate. This represents a compromise between the proposed $50,000 limit and the 1995 limit--the lower of $100,000 or 75 percent of the fisherman's uninsured loss. Raising Option 2's maximum offer limit to $75,000 may increase the number of participants who suffered greater impacts from the salmon fishery disaster, and better offsets their exclusion from the fishery for 10 years. On the other hand, a $75,000 maximum offer limit may also lead to higher offers, thereby increasing the competitiveness of offers made by participants with lower salmon disaster impacts. Comment 7: Several commenters discussed Option 2. One commenter criticized Option 2, arguing that for many vessels, the comparison year income will be zero due to fishery closures. Therefore, the commenter claimed that Option 2 is biased in favor of larger boats that were better able to generate high base year income and consequently higher SDIs. Another commenter supported Option 2, stating that full-time fishermen deserve to be bought out. Response 7: Developing a ranking system acceptable to all groups is difficult, especially given the polarization of the industry into two groups--those with high SDIs and those with low SDIs. NMFS recognizes that most successful bidders under the 1995 WSLB suffered relatively low uninsured losses. NMFS proposed Option 2 in response to public comments that those with greater losses, and who are arguably most dependent on the fishery, deserve a better chance to participate in the program. Option 2 allows all eligible fishermen to participate but also factors in the impacts of the resource disaster upon each participant. Comment 8: One commenter felt that exceptions should be made to Option 2's qualifying criteria, which base offers upon earnings history, to allow new license holders to use the past earnings history of previous owners of the license. Response 8: The IFA limits assistance to commercial fishermen who are affected by the fishery resource disaster. Fishermen who have entered the fishery during the disaster period through the purchase of permits and vessels are presumed to have been relatively unaffected by the disaster, since they were not fishing when the disaster period occurred, and did not watch their long-term investment decline. Comment 9: One commenter thought that the unsuccessful bidders to the 1995 WSLB should be given preference. Response 9: As discussed in the Federal Register notice of August 29, 1996 (61 FR 45408), neither the 1995 WSLB notice nor any other notice stated that fishermen who failed to participate in the 1995 program would be excluded or disadvantaged in future programs. Furthermore, NMFS has the discretion to create new grant programs with the same or different terms, limitations, and conditions, even with related funding sources and similar program goals. Comment 10: The NEAP funding should be audited. Response 10: All government financial assistance programs are subject to audit. Currently, Commerce's Office of Inspector General is reviewing the NEAP. Comment 11: NMFS should offer a set buy back offer of $5,000 to $8,000 for those that do not have much of a history in the fishery. Response 11: The recommendation may have merit in terms of reducing the number of latent permits outstanding and assisting new entrants to the fishery. However, as stated in previous Federal Register notices, NMFS believes that assistance under the NEAP should be closely linked with individual's loss or SDI. Comment 12: One commenter claimed that the Puget Sound Gillnet fishery needs a fishing capacity reduction program and questioned why the Puget Sound Gillnet fishery was the only Washington State commercial salmon fishery excluded from the program. Response 12: Puget Sound was excluded because the factors underlying the fishery resource disaster declared by the Secretary on May 26, 1994, were not deemed to have extended to Puget Sound. Coastal and Columbia River salmon fisheries suffered the greatest declines during the 1991-95 disaster period. In contrast, Puget Sound gillnetters recorded substantial landings in 1994 and no sufficient data indicate a natural resource disaster in Puget Sound in 1995. Comment 13: One commenter charged that Washington State is siphoning off money under the guise of administrative costs. Response 13: One of the primary objectives of NEAP has been to hold down administrative costs. NMFS believes that the State of Washington has performed its administrative duties with a minimal degree of overhead costs. Under the 1995 WSLB, NMFS allocated $300,000 to WDFW for administrative costs. WDFW spent only 3 percent, or $119,000, of the $4 million grant award on administrative costs, and used the balance to purchase additional permits. The 1996 WSLB provides $250,000 for administrative costs, with the remaining $5 million for license buy out payments for fishermen. If NMFS approves the Governor of Washington's request to transfer $50,000 from the WSLB to the Data Collection Jobs Program, WDFW will have $4.95 million available for license buyouts. Comment 14: Two commenters wanted the offer ranking system to take into account the number of years a fisherman has held and operated a Washington license, because long-time fishermen have suffered more due to the salmon resource disaster. Furthermore, they argued that older fishermen have fewer career options or may have not been able to generate as high an SDI as younger fishermen. Response 14: The emphasis of the WSLB is on compensating losses, not seniority. The program strives to achieve the maximum degree of fairness with respect to the losses suffered. Comment 15: One commenter claimed that the NEAP fails to account for the economic damage caused to salmon markets and to trade associations--two top priority areas that need to be addressed. Response 15: NMFS and the State of Washington are aware that the salmon resource disaster has affected other salmon-related businesses. However, the NEAP was funded under the IFA, which authorizes assistance to persons engaged in commercial fisheries, which the Secretary has limited to commercial fishermen only. Final 1996 WSLB Description The 1996 WSLB has two goals: (1) To compensate commercial fishermen for harm suffered from the salmon resource disaster, and (2) to aid the long-term viability of the fishery resource. In establishing the 1996 WSLB, NMFS has considered comments from state officials and the public, the results of the 1995 program, and the constraints of the legal authority under which the program operates. [[Page 56220]] Based on the above considerations, NMFS has selected Option 2 as the model on which to base the 1996 WSLB. Option 2 provides greater opportunity for more productive fishermen to exit the fishery, and prevents the removed fishing capacity from cycling back into the fishery for 10 years. Furthermore, as mentioned above, the 1996 WSLB differs from the 1995 WSLB in important aspects. The 1996 WSLB will be based on a fisherman's SDI, which is equal to 2.5 times the difference between a fisherman's highest gross salmon fishery income derived from fishing during any calendar year 1986 through 1991 (base year), and the sum of the least amount of salmon fishery income derived from commercial salmon fishing during any calendar year from 1991 through 1995 (comparison year). Fishermen can use the same information they developed for the 1995 WSLB to determine their SDI. In addition, a competitive offer ranking system will be used, and participants who receive buy outs will be prohibited from purchasing or operating a commercial salmon license for 10 years, unless the participant owned that license in 1995. Eligibility Criteria To be eligible, the applicant must fulfill the following requirements: 1. Must have possessed or was eligible to possess one of the following Washington State commercial salmon fishery licenses in 1994 and possessed the same license in 1995: a. Salmon troll license; b. Salmon delivery license; c. Salmon gill net--Grays Harbor-Columbia River; d. Salmon gill net--Willapa Bay-Columbia River; or e. Salmon charter. 2. Must demonstrate an SDI greater than $0. 3. Must not have earned more than $2,000,000 in net revenues annually from commercial fishing for the period between 1991 and 1994. Bidding Procedure License holders may offer their licenses for any amount up to $75,000 or their SDI, whichever is less. Offers will be ranked according to the offer ratio. The offer ratio is the division of the offer amount by the SDI. Licenses will be ranked and purchased starting with those offers that have the lowest offer ratios. In the event of a tie between identical offer ratios, the lowest offer will be given preference. Successful participants cannot purchase or operate another Washington State commercial salmon troll, salmon delivery, Gray's Harbor-Columbia River salmon gillnet, Willapa Bay-Columbia River salmon gillnet, or salmon charter license for 10 years beginning January 1, 1997, unless the license was owned or operated by that person in 1995. Additional Terms, Limitations, and Conditions A license holder may offer more than one license, but income used in the calculation of an offer that is accepted may not be used in the calculation of any other offer. Licenses will be purchased in order of ranking until funds are exhausted. The State of Washington, in consultation with NMFS, will reserve the right to reject any and all offers if it is determined by NMFS that such action is in the best interests of the program or if revisions to the program are warranted in the future. Proprietary information submitted by applicants will only be disclosed to state and Federal officials who are responsible for the NEAP, or otherwise when required by court order or other applicable law. This information is subject to the Freedom of Information Act. Example of Bidding Procedure Step 1: Determine SDI Step 1A: Base Year Selection: Select the highest year of gross income during the base period 1986 through 1991. For Fisherman A, this is $38,000. For Fisherman B, this is $8,000. Step 1B: Comparison Year Selection: Select the lowest year of gross income during the comparison year of 1991 though 1995. For fisherman A, this is $3,000. For Fisherman B, this is $0. Step 1C: Subtraction Subtract the selected comparison year gross income from the selected base year income. For Fisherman A, this is $38,000 minus $3,000, or $35,000. For Fisherman B, this is $8,000 minus $0, or $8,000. Step 1D: Multiplication Multiply the difference between the comparison year and base year gross income by 2.5. For Fisherman A, this is $35,000 multiplied by 2.5, or $87,500. For Fisherman B, this is $8,000 multiplied by 2.5, or $20,000. Step 1E: SDI Determination SDI is the result of steps 1A through 1D. Fisherman A's SDI is $87,500 (($38,000-$3,000) x 2.5=$87,500). Fisherman B's SDI is $20,000 (($8,000-$0) x 2.5=$20,000). Step 2: Determine Maximum Offer Amount The maximum offer amount is $75,000 or the fisherman's SDI, whichever is less. Fisherman A's SDI is $87,500, which is greater than $75,000. Therefore, Fisherman A's maximum bid is limited to $75,000 because $75,000 is the maximum any fisherman can receive. Fisherman B's maximum bid is $20,000 because his SDI is less than $75,000. Step 3: Determine Bid Fishermen can choose to submit an offer that ranges from $1 up to their maximum offer limit. Fisherman A's range is from $1 to $75,000. Fisherman B's range is from $1 to $20,000. Ranking of Bids If both Fisherman A and Fisherman B elected to submit their respective maximum offers, Fisherman A's offer would be the first accepted because the 0.857 ($75,000/$87,500) offer ratio is less than 1.0. If Fisherman B elected to submit an offer of $11,000, then Fisherman B's offer ratio would be 0.550 ($11,000/$20,000). Because Fisherman B's offer ratio is lower than Fisherman A's offer ratio, Fisherman B's offer would be accepted first. In the event of a tie with identical offer ratios, preference will be given to the fishermen with the lowest offer amount. If Fisherman A submits an offer of $75,000 (ratio=.857) and Fisherman B submits an offer of $17,140 (ratio=.857), Fisherman B's offer would be accepted first because it is less than Fisherman A's offer. Catalogue of Federal Domestic Assistance The program is listed in the Catalogue of Federal Domestic Assistance under No. 11.452, Unallied Industry Projects. Classification This action has been determined to be not significant for purposes of E.O. 12866. The Assistant General Counsel for Legislation and Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this notice would not have a significant economic impact on a substantial number of small entities because only a small portion of West Coast salmon fishermen will be directly affected. NMFS estimates that only approximately 3.6 percent of the industry will receive financial assistance through the WSLB. Therefore, the impacts of the notice are not significant within the meaning of the Regulatory Flexibility Act. They are not likely to lead to a reduction in the annual gross revenues by more than 5 percent or an increase in total costs of production by more than 5 percent, nor would this action result in any greater compliance costs. [[Page 56221]] This program involves a collection-of-information requirement subject to the Paperwork Reduction Act (PRA). The collection of this information has been approved by the Office of Management and Budget (OMB), under OMB control number 0648-0288. Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number. Authority: Public Law 99-659 (16 U.S.C. 4107 et seq.); Public Law 102-396. Dated: October 24, 1996. Nancy Foster, Acting Assistant Administrator for Fisheries, National Marine Fisheries Service. [FR Doc. 96-27902 Filed 10-25-96; 4:48 pm] BILLING CODE 3510-22-W