[Federal Register: January 15, 2009 (Volume 74, Number 10)]
[Proposed Rules]
[Page 2467-2478]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ja09-66]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 253 and 600
[Docket No. 080228332-81199-01]
RIN 0648-AW38
Magnuson-Stevens Act Provisions; Interjurisdictional Fisheries
Act; Disaster Assistance Programs; Fisheries Assistance Programs
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: In accordance with the Magnuson-Stevens Fishery Conservation
and Management Act (MSA), as amended, and the Interjurisdictional
Fisheries Act (IFA), NMFS (on behalf of the Secretary of Commerce)
proposes regulations to govern the requests for determinations of
fishery resource disasters as a basis for acquiring potential disaster
assistance. The regulations would establish definitions, and
characteristics of commercial fishery failures, fishery resource
disasters, serious disruptions affecting future production, and harm
incurred by fishermen, as well as requirements for initiating a review
by NMFS, and the administrative process it will follow in processing
such applications. The intended result of these procedures and
requirements is to clarify and interpret the fishery disaster
assistance provisions of the MSA and the IFA through rulemaking and
thereby ensure consistency and facilitate the processing of requests.
DATES: Comments must be submitted in writing on or before February 17,
2009.
ADDRESSES: You may submit comments, identified by 0648-AW38, by any one
of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal: http://
www.regulations.gov;
Fax: 301-713-1193, Attn: Robert Gorrell;
Mail: Alan Risenhoover, Director, NMFS Office of
Sustainable Fisheries,
[[Page 2468]]
Attn: Disaster Assistance Program Guidance and Procedures, 1315 East-
West Highway, SSMC3, Silver Spring, MD 20910.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to Alan Risenhoover at the above address
and by e-mail to David-Rostker@omb.eop.gov, or by fax to (202) 395-
7285.
Instructions: All comments received are a part of the public record
and will generally be posted to http://www.regulations.gov without
change. All Personal Identifying Information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not submit Confidential Business Information or
otherwise sensitive or protected information.
NMFS will accept anonymous comments. Attachments to electronic
comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe PDF file formats only.
FOR FURTHER INFORMATION CONTACT: Robert Gorrell, at 301-713-2341 or via
e-mail at robert.gorrell@noaa.gov.
SUPPLEMENTARY INFORMATION: The Secretary of Commerce or his/her
designee (Secretary) can provide disaster assistance under sections
312(a) or 315 of the Magnuson-Stevens Fishery Conservation and
Management Act (MSA) (16 U.S.C. 1861, 1864), as amended, and under
sections 308(b) or 308(d) of the Interjurisdictional Fisheries Act
(IFA) (16 U.S.C. 4107), after Congress appropriates funds for such
purpose. This proposed rule would provide guidance and procedures for
either initiating or evaluating requests for fisheries disaster
assistance under these two statutes, but does not include provisions
for grants or other types of financial assistance and disaster aid.
This proposed rule would apply to both Federal and state coastal
commercial fisheries and does not apply to recreational fisheries.
Recreational fisheries determined to be part of a fishing community may
participate in assistance depending on the individual disaster
assistance plans. The proposed rule also supplements and modifies
existing regulations at subpart C of 50 CFR 253 governing disaster
assistance under the IFA. Until this rule, NMFS has not published
regulations to govern disaster assistance under the MSA.
Magnuson-Stevens Fishery Conservation and Management Act (MSA)
Section 312(a) states that the Secretary, at his discretion or upon
request of a governor of an affected state or a fishing community,
``shall determine whether there is a commercial fishery failure due to
a fishery resource disaster.'' Upon making such a determination, the
Secretary is authorized to make funds available ``for assessing the
economic and social effects of the commercial fishery failure, or any
activity that the Secretary determines is appropriate to restore the
fishery or prevent a similar failure in the future and to assist a
fishing community affected by such failure.'' For assistance to be
provided under section 312(a), a commercial fishery failure must be
shown to have occurred due to a fishery resource disaster of natural or
undetermined causes or man-made causes beyond the control of fishery
managers to mitigate through conservation and management measures,
including regulatory restrictions (including those imposed as a result
of judicial action) imposed to protect human health or the marine
environment.
Although this rule does not contain provisions for awarding grants
or other types of financial assistance and disaster aid, the reader may
be interested that under section 312(a), the Federal share of the cost
of any activity cannot exceed 75 percent. The Secretary is authorized
to make sums available to be used by the affected State, by the fishing
community, or by the Secretary in cooperation with the affected State
or fishing community for assessing the economic and social effects of
the commercial fishery failure, or any activity that the Secretary
determines is appropriate to restore the fishery or prevent a similar
failure in the future and to assist a fishing community affected by
such failure. Before making funds available for an activity authorized
under this section, the Secretary must make a determination that such
activity will not expand the size or scope of the commercial fishery
failure in that fishery or into other fisheries or other geographic
regions.
Effective January 12, 2007, the Magnuson-Stevens Fishery
Conservation and Management Reauthorization Act of 2006 (MSRA)(PL 109-
479) amended section 312(a) of the MSA and added a new section 315. At
the request of the Governors of affected states, section 315 authorized
the Secretary to establish a regional economic transition program to
provide disaster relief assistance to fishermen, charter fishing
operations, United States processors, and owners of related fishery
infrastructure affected by a ``catastrophic regional fishery
disaster.'' Subject to the availability of appropriations, the regional
economic transition program must provide funds or other economic
assistance for disbursement to affected entities in meeting immediate
regional shoreside infrastructure needs, financial assistance and job
training, fishing capacity reduction, and other activities authorized
under MSA 312(a) or IFA 308(d). The amendment also allows for waiver of
non-Federal matching requirements in catastrophic regional fishery
disasters if the Secretary determines no reasonable means are available
for applicants to meet the matching requirement and that the probable
benefit of 100 percent Federal financing outweighs the public interest
of imposing a matching requirement.
Interjurisdictional Fisheries Act (IFA)
IFA section 308(b) authorizes the Secretary to provide grants or
cooperative agreements to states determined to have been affected by a
commercial fishery failure or serious disruption affecting future
production due to a fishery resource disaster arising from natural or
undetermined causes. Although this rule does not contain provisions for
awarding grants or other types of financial assistance and disaster
aid, the reader may be interested that IFA section 308(b) and 50 CFR
section 253.23(a)(1) contain provisions for section 308(b) assistance
and state that the Federal share of the cost of any activity cannot
exceed 75 percent. The Secretary may distribute these funds after
making a thorough evaluation of the scientific information submitted
and determining that a commercial fishery failure due to a fishery
resource disaster arising from natural or undetermined causes has
occurred. Funds may only be used to restore the resource affected by
the disaster, and only by existing methods and technology.
IFA section 308(d) enables the Secretary to help persons engaged in
commercial fisheries by initiating projects or other measures to
alleviate harm determined by the Secretary to have been incurred as a
direct result of a fishery resource disaster arising from a hurricane
or other natural disaster. Eligibility for direct assistance under this
subsection is limited to any person having less than $2,000,000 in net
revenues annually from commercial fishing, as determined by the
Secretary. IFA section 308(d) and subpart C of 50 CFR part 253.23(2)
contain provisions for section 308(d) assistance and states that funds
provided under section 308(d) must undergo formal notice and
opportunity for public comment on the appropriate limitations, terms,
and conditions for awarding assistance.
[[Page 2469]]
There is no matching requirement for recipients under section 308(d).
Intent of This Action
The Sustainable Fisheries Act of 1996 amended the MSA by adding
section 312(a). Since then, NMFS has processed requests for section
312(a) determinations of a ``commercial fishery failure due to a
fishery resource disaster'' on a case-by-case basis. NMFS recently
developed policy and administrative procedures which are found in the
NMFS Policy Directives System (PDS) at http://reefshark.nmfs.noaa.gov/
f/pds/publicsite/index.cfm to provide internal guidance when undergoing
an MSA section 312(a) review. The procedures also addressed review of
requests made under the IFA. This proposed rule largely incorporates
this policy and accompanying procedures and addresses new requirements
under the reauthorized MSA. The intent of this proposed rule is to
provide more certainty as to how to qualify for a positive
determination under either the MSA or the IFA.
This rule proposes procedures and requirements for initiating,
evaluating, and deciding requests for determinations of fishery
resource disasters. The proposed rule would establish definitions,
characteristics of commercial fishery failures and fishery resource
disasters, requirements for initiating a review by NMFS, and the
criteria NMFS will use in evaluating such requests.
These proposed procedures and requirements also would guide any
fisheries disaster determinations considered at the discretion of the
Secretary under the authority of sections 312(a) and 315 of the MSA and
sections 308(b) and 308(d) of the IFA.
Definitions
In section 600.1502, the proposed rule sets forth definitions of
terms used in implementing sections 312(a) and 315 of the MSA and
sections 308(b) and 308(d) of the IFA. Some definitions are repeated
from the MSA and the IFA. Others define terms used in the MSA but not
defined in the IFA. The term ``commercial fishery failure'' for
purposes of implementing the IFA under this subpart is defined
differently from under the current section 253.20. This rule also
replaces the definition of ``commercial fishery failure'' in 50 CFR
253.20 to ensure that the Secretary is uniformly applying the term when
evaluating requests for disaster assistance under either the MSA or the
IFA. Other terms are newly established. Five particularly important
terms--``commercial fishery failure'', ``fishery resource disaster'',
``man-made causes'', ``natural causes'', and ``undetermined causes''--
are defined in section 600.1502 but are also discussed elsewhere in
this preamble.
Determining a Commercial Fishery Failure or Determining a Serious
Disruption Affecting Future Production of a Fishery or Determining Harm
Due to a Fishery Resource Disaster Three-Pronged Test
Section 600.1503 of the proposed rule contains key requirements for
the Secretary to make a positive determination of a commercial fishery
failure, serious disruption affecting future production of a fishery,
or harm due to a fishery resource disaster under MSA section 312(a) and
IFA sections 308(b) and (d). In making this determination, every
request for fisheries disaster assistance must meet the appropriate
three-pronged test: (1) There must have been a fishery resource
disaster within the meaning of the MSA or IFA and these regulations;
(2) the cause for the fishery resource disaster resulting in a
commercial fishery failure or serious disruption affecting future
production of a fishery must have been one of the allowable causes
identified in either the MSA or IFA and these regulations; and (3)
there must be economic impact stemming from the fishery resource
disaster which supports a determination of a commercial fishery failure
under MSA section 312(a) and IFA section 308(b) and these regulations;
or, in the case of IFA section 308(b), a determination of a serious
disruption affecting future production of a fishery.
Under section 308(d) of the IFA, it is not necessary for the
Secretary to determine a commercial fishery failure or a serious
disruption affecting future production but only a determination of harm
to persons engaged in commercial fisheries incurred as a direct result
of a fishery resource disaster arising from a hurricane or other
natural disaster. Section 600.1503(f) of the proposed rule contains
requirements for the Secretary to make a positive determination of harm
incurred as a result of a fishery resource disaster under section
308(d) of the IFA.
Establishing the Existence of a Fishery Resource Disaster
Section 600.1503(b) of the proposed rule contains requirements for
meeting the first test, identifying a fishery resource disaster. While
a substantial decrease in the number of available fish (i.e., a stock
crash) would clearly appear to fall within the definition of a fishery
resource disaster, NMFS interprets the term more broadly. The term
``fishery resource'' is defined in the MSA to include both the fish
themselves and fishing. Therefore, NMFS is defining the term ``fishery
resource disaster'' to include impediments to fishing not just stock
collapses. The proposed rule would define a ``fishery resource
disaster'' to mean a sudden and unexpected large decrease in fish stock
biomass or other event that results in the loss of essentially all
access to the fishery resource, such as loss of fishing vessels and
gear, for a substantial period of time in a specific area.
NMFS believes that a reasonably predictable, foreseeable, and
recurrent fishery resource cycle of variations in species distribution
or stock abundance does not constitute a fishery resource disaster,
since normal fluctuations are an expected component of participating in
a commercial fishery. Loss of access to a specific fishery resource is
the key factor and it must be for a substantial period of time or for
the foreseeable future, except for negligible fishing.
In concluding whether a fishery resource disaster has occurred, the
Secretary will consider, among other things, whether the fishery
resource biomass has precipitously declined or ``crashed''. Landings,
stock status, and other data supporting such a decline or crash will
need to be evaluated. The Secretary will also consider other biological
and environmental information regarding access to the fishery. For
instance, in a public health emergency, such as a red tide event,
fishermen may be precluded from catching an otherwise healthy stock of
fish because that fish has a bacteria harmful to humans. In other
cases, a hurricane may destroy the majority of boats and gear of a
fishing fleet. In both cases, there could be a fishery resource
disaster without a stock collapse because the fishermen could not
access the population either due to an unanticipated human health issue
or due to the unexpected destruction of fishing equipment. Accordingly,
the loss of access to a fish population is a broader and better test
for a fishery resource disaster than a test that focuses solely on the
biological population levels of the subject stock.
Damage or loss of spawning habitat or refugia may also result in a
fishery resource disaster, but again the key factor will be whether
that damage or loss prevents access to harvest fishery resources for a
substantial period of time or for the foreseeable future.
NMFS considered whether to include an economic test as part of the
criteria for concluding whether there was a
[[Page 2470]]
fishery resource disaster, given that the definition of ``fishery
resource'' includes fishing and therefore implies consideration of the
fishing industry. However, doing so would co-mingle the concept of
fishery resource disaster in the first prong of the three-prong test
with the concept of a commercial fishery failure in the third prong.
Because the economic effects of the disaster are taken into account as
part of the commercial fishery failure, NMFS chose to focus on loss of
access as the appropriate test under the first prong. As such, an event
precluding all access to a fishery could be a fishery resource disaster
but not necessarily a commercial fishery failure unless the fishery
suffers sufficient economic loss to meet the test in the third prong as
described below.
For the Secretary to conclude that a fishery resource disaster has
occurred, the Secretary's analysis may include, among other things,
information provided by fishery stock assessments, landings data,
assessments of storm damage to habitat, and documents evidencing lost
vessels and gear.
Causes--Natural, Man-Made, or Undetermined
In order for the Secretary to make a positive determination, the
cause of the fishery resource disaster must meet one of the
requirements mentioned in the statutes. Section 600.1503(c) of the
proposed rule contains standards for meeting this second-prong test.
Natural causes are defined in the proposed rule to mean a weather-,
climate-, or biology-related event (e.g., hurricane, flood, drought, El
Ninn[otilde] effects on water temperature, or disease). This definition
is intended to cover all known events that can occur in nature, but do
not include interference by human beings. ``Natural causes'', as
defined by these regulations, is a basis for fishery resource disaster
determinations under MSA section 312(a) and IFA sections 308(b) and
308(d).
Prior to the amendments in the reauthorized MSA in January 2007,
section 312(a) discussed man-made causes by stating the Secretary must
determine whether there is a commercial fishery failure due to a
fishery resource disaster as a result of ``man-made causes beyond the
control of fishery managers to mitigate through conservation and
management measures.''
In the reauthorized MSA, however, Congress added a phrase stating
that regulatory restrictions imposed to protect human health and the
marine environment could provide the basis for a fishery resource
disaster. The new language is preceded by the phrase ``including,''
which indicates that the new language describes a subset of the types
of man-made causes that could support a positive determination.
Moreover, the new language identifies two distinct categories of
regulatory restrictions: (1) those imposed to protect human health; and
(2) those imposed to protect the marine environment.
Regulations precluding access to fisheries due to public health
concerns are a legitimate basis for a fishery resource disaster. For
instance, at the request of the Food and Drug Administration, the
Secretary closed a large area in Maine to shellfish fishing because of
a massive red tide in 2005. In that situation, the stock was
biologically robust but harvest was precluded because consuming the
shellfish posed a human health risk. The underlying cause of the access
preclusion (the red tide) was outside the ability of the fishery
managers to control and it may not have been possible to mitigate for
the closure by allowing greater fishing effort in other areas.
There are instances where NOAA and other agencies sometimes
implement regulations precluding access to fisheries in order to
protect the marine environment. For example, closures designed to
protect marine mammals or associated with National Marine Sanctuaries
or presidentially declared national monuments could potentially be
considered an appropriate basis for a fisheries resource disaster.
Unfortunately, the statutory language is ambiguous in that it is not
obvious on the face of the statute what types of regulatory
restrictions are ``imposed to protect the marine environment.'' The
statute does not define what it means to implement regulations to
protect the marine environment or even provide a definition of the
marine environment and there is little guidance in the legislative
history. Although in common usage, it might seem appropriate to include
stocks of fish in the definition of marine environment, this
interpretation is problematic in the broader context of the MSA.
The MSA defines the term ``conservation and management'' to refer
to ``all of the rules, regulations, conditions, methods, and other
measures (A) which are required to rebuild, restore, or maintain, and
which are useful in rebuilding, restoring, or maintaining, any fishery
resource and the marine environment'' (emphasis added). NMFS concludes,
by using the distinct terms ``fishery resource'' and ``marine
environment,'' that Congress intended ``marine environment'' to have a
different meaning from ``fishery resource.'' Therefore, ``fishery
resource'' is not part of the ``marine environment'' as the term is
used in the MSA. Since the ``marine environment'' is distinct from
``fisheries resource'', a regulation implemented to protect a fishery
resource is not a regulatory restriction imposed to protect the
``marine environment'' under Section 312(a). Therefore, fishery
rebuilding regulations could not constitute the basis for finding a
``fishery resource disaster'' under Section 312(a) of the MSA. In this
context, and for purposes of determining the causes of a fishery
resource disaster, ``marine environment'' is defined to consist of:
``(a) Ocean or coastal waters (note: coastal waters may include
intertidal areas, bays, or estuaries); (b) an area of lands under ocean
or coastal waters; or (c) a combination of the above.''
NMFS's interpretation is also consistent with the statute's
specification that man-made causes, including regulatory restrictions,
may be the basis for a fishery resource disaster only if they are
``beyond the control of fisheries managers to mitigate through
conservation and management measures.'' Clearly, regulatory
restrictions implemented for conservation and management of a fishery
such as area closures or direct effort controls, including those
designed to prevent overfishing and rebuild the fishery, can preclude
access to the fishery. However, it is difficult to characterize
regulatory restrictions imposed by fishery managers as being ``beyond
the control of fishery managers to mitigate through conservation and
management measures.''
When fishery managers implement regulatory restrictions to prevent
overfishing, the managers are mitigating the harm that will inevitably
occur if the fishery continues unconstrained overfishing. Any
regulation designed to end overfishing will result in loss of access to
the resource. By restricting fishing levels such that overfishing does
not occur, fishery managers are creating short-term access loss in
order to avoid the much more substantial long-term access losses that
would result from a stock collapse. Therefore, fishery management
regulations are the tool used by fishery managers to control and
mitigate the fishery resource disaster that will be caused by continued
overfishing.
NMFS's interpretation is also consistent with the overall
structure, context, and purposes of the MSA. Interpreting section 312
to permit a fishery resource disaster finding for regulations imposed
to meet the statutory mandate to end overfishing
[[Page 2471]]
and rebuild overfished stocks would also create perverse disincentives
to follow the law and end overfishing. When Congress passed the
Sustainable Fisheries Act in 1996, it included extensive provisions
related to overfishing and rebuilding. And when it reauthorized the MSA
in 2007, a principal purpose was to end overfishing. That simply cannot
be accomplished without decreasing fish harvests in some manner.
However, providing disaster assistance because a fishery has continued
overfishing would discourage responsible fishing practices. NMFS does
not believe as a matter of policy that the statute should be
interpreted in a manner that would undermine the fundamental purpose of
the MSA to ensure sustainable fishing into the future. Without a
fishery resource disaster and causes consistent with the MSA or IFA
requirements, regulatory restrictions to protect the sustainability of
fishing are not a basis for compensation under MSA section 312(a).
Man-made causes are defined in the proposed rule to mean events or
activities caused by humans that could not have been prevented or
addressed by fishery management measures and that are otherwise beyond
the control of fishery managers to mitigate through conservation and
management measures (e.g., oil spill), except for regulatory
restrictions or judicial actions imposed to protect human health or the
marine environment. ``Man-made causes'' applies only to determinations
under MSA section 312(a), and not to IFA section 308(b) and IFA section
308(d). ``Undetermined causes'' are defined in the proposed rule to
mean ``causes in which the current state of knowledge does not allow
the identification of the exact cause or causes; however, fishing
restrictions to end overfishing, overfishing, or inadequate harvest
controls cannot be the basis for making a fishery disaster
determination.'' If overfishing has occurred in the 5-year period
immediately preceding a disaster claimed to be caused by ``undetermined
causes'', the Secretary will presume that overfishing or inadequate
harvest controls was the cause of the claimed disaster, unless the
requester demonstrates otherwise. As noted above, NMFS interprets the
statute to provide that regulatory restrictions designed to prevent
overfishing and rebuild the fishery may not serve as a basis for
finding a fishery resource disaster resulting from ``man-made causes.''
Nearly all commercial fisheries in the 200-mile Exclusive Economic Zone
are subject to Federal (principally NMFS) management designed to
conserve and manage the fishery resources and prevent overfishing. In
other fisheries, such as State fisheries, NMFS neither regulates nor
collects data to determine whether overfishing is occurring, and hence,
the requester must demonstrate that the loss of access was not caused
by overfishing, fishing restrictions to end overfishing, or inadequate
harvest controls. In this context, it is vital that NMFS establish
safeguards to ensure that the ``undetermined causes'' criterion is not
used as a back-door to obtain fishery resource disaster determinations
that otherwise would be precluded. At the same time, NMFS wants to
ensure that appropriate relief is available where a fishery resource
disaster results from undetermined causes unrelated to harvest
restrictions designed to conserve and manage the fishery resource.
Therefore, any requester claiming undetermined causes must demonstrate
why a fishery resource disaster (i.e., the loss of essentially all
access to the fishery resource for a substantial period of time) was
not caused by overfishing, fishing restrictions to end overfishing, or
inadequate harvest controls.
``Undetermined causes'' applies to determinations made under both
MSA section 312(a) and IFA section 308(b), but not to IFA section
308(d).
Determination of a Commercial Fishery Failure or a Serious Disruption
Affecting Future Production of a Fishery
Section 600.1503(d) of the proposed rule contains requirements for
meeting the test in the third prong.
A. Commercial Fishery Failure under MSA Section 312(a) and IFA
Section 308(b). The proposed rule would define a ``commercial fishery
failure'' to mean: (1) When the 12-month revenues from commerce in the
fishery (which is dependent on the fishery resource subject to a
fishery resource disaster) have decreased by 80 percent or more
compared to the average for the immediately preceding 5-year period; or
(2) when the 12-month revenues from commerce in the fishery (which is
dependent on the fishery resource subject to a fishery resource
disaster) have decreased by at least 35 percent compared to the average
for the immediately preceding 5-year period, and the economic impacts
are severe and are beyond the normal range of annual revenue
fluctuations in the fishery compared with the immediately preceding 5-
year period. Increased costs, e.g., increased fuel and other energy
costs, cannot be the basis for a positive determination of a commercial
fishery failure. In determining whether economic impacts are severe,
the Secretary will consider, among other things, the degree of economic
hardship suffered by those directly engaged in the commercial fishery,
but not the community at large. The Secretary will also consider the
degree to which those impacts are offset by mitigating circumstances,
including other commercial fishing opportunities for the affected
fishermen. A decrease in 12-month revenues of less than 35 percent
compared to the average of the 5-year period immediately preceding the
disaster will not support a positive determination.
It is NMFS's best judgment that the 5 most recent years is the
appropriate comparison period, and that the 35 percent and 80 percent
decrease in revenues are the appropriate levels in making
determinations. Given the wide variance in life cycles of the many fish
species, changes in harvestable biomass, price fluctuations with
changes in supply, and other variables impacting fishery revenues, a 5-
year average is believed to be a reasonable comparison. It is a long
enough time period to allow the Secretary to gauge a reduction in
annual fishing revenues and to determine whether the decline in
revenues is sudden. Less than 5 years does not allow the Secretary to
account for normal short-term variations. If it is longer than 5 years,
the relevance to conditions existing at the time of the disaster
becomes more tenuous. NMFS would be particularly interested in
receiving comments on this. If you do not believe using the immediately
preceding 5-year period is appropriate for comparison, tell us why.
While a reduction in revenue of less than 35 percent could be
significant, under the proposed rule it would not result in a
commercial fishery failure. A reduction in revenues of less than 35
percent may be absorbed over a few years whereas a reduction in
revenues of 35 percent or greater could take a substantially longer
period of time to offset.
On the other hand, a reduction in revenues of 80 percent or more
likely will result in an economic failure for fishery participants and
could take several years to absorb. At this level, all economic
activity is likely ultimately to diminish. NFMS would also be
particularly interested in receiving comments on using 35 percent and
80 percent thresholds. If you do not think these are the appropriate
thresholds, tell us why.
In all instances, in order for NMFS to be able to complete its
analysis under the statutes, it must have a clear
[[Page 2472]]
understanding of which stock or stocks of fish constitute the fishery
in which a commercial fishery failure determination is sought. The
requester will be responsible for identifying the commercial fishery as
well as the geographical boundaries of the fishery.
In cases of revenue decreases between 35 and 80 percent, the extent
to which revenues must decrease for a commercial fishery failure to be
found will vary among fisheries. Within this range, a commercial
fishery failure must be determined on a case-by-case basis because each
fishery is different and revenues fluctuate widely, and cannot be
defined universally. The Secretary will consider, among other things,
information provided on revenues, landings data, prices, actual losses,
and market conditions. The Secretary will consider the average revenue
information for the 5-year period immediately preceding the fishery
resource disaster. Other factors to consider are the magnitude of the
fishery (e.g., the timing and scope of a small, localized fishery may
present a very different situation from coastwide fisheries) and other
opportunities for the affected fishermen. For example, fishermen may be
able to offset revenue declines in one fishery by increasing revenues
from another fishery.
B. Serious Disruption under IFA Section 308(b). The proposed rule
would define ``serious disruption affecting future production'' to mean
``a non-cyclical sudden and precipitous decrease in harvestable biomass
or spawning stock size of a fish stock that limits access to the
fishery for a substantial period of time in a specific area.'' In
making a determination of a serious disruption affecting future
production of a fishery, the proposed rule would require the Secretary
to consider the estimated decrease in harvestable biomass or spawning
stock size of the fish targeted by the fishery affected by the disaster
arising from natural or undetermined causes. The Secretary will issue a
determination of a serious disruption affecting future production if
he/she finds that the harvestable biomass or spawning stock size of the
fish targeted by the fishery (which is dependent on the fishery
resource subject to a fishery disaster) has decreased by 80 percent or
more compared to the average for the 5-year period immediately
preceding the disaster. If the harvestable biomass or spawning stock
size of the fish targeted by the fishery has decreased at least 35
percent compared to the average for the immediately preceding 5-year
period, the Secretary will review the circumstances. The Secretary will
make his/her decision based on the severity of the serious disruption
affecting future production of the fishery. In reaching a
determination, the Secretary will consider, among other things, most
recent trawl surveys and other fishery resource surveys conducted by
NMFS and/or state officials, as well as most recent stock assessments
and other indicators of future production from the fishery. The
Secretary believes these are the appropriate parameters, based on the
reasoning in the prior section.
Repetitive Requests Not Allowed: One Positive Commercial Fishery
Failure or Serious Disruption Determination per Fishery Resource
Disaster
Section 600.1503(e) of the proposed rule would prevent repetitive
requests for commercial fishery failure determinations or serious
disruption affecting future production determinations due to the same
fishery resource disaster, once a positive determination has been made.
There are several reasons to propose this. Repetitive requests based on
the same fishery resource disaster do not provide additional benefits
for the fishermen because Congress can respond to the determination by
appropriating money, or subsequently appropriating additional money if
the disaster relief was insufficient. It is also a waste of resources
to entertain repetitive requests. In many instances the fishery
resource will take years to recover and reviewing repetitive requests
only to come to the same conclusion is a waste of government resources.
In the past, the Secretary has received multiple requests over
several years to determine a commercial fishery failure based on the
original fishery resource disaster that occurred years earlier. For
example, the St. Paul snow crab fishery in the Eastern Bering Sea, has
depended on the snow crab resource, which failed several years ago and
has not rebuilt. The Secretary twice made a commercial fishery failure
determination (in different years) due to a fishery resource disaster
in that fishery. The proposed rule would prevent repeated
determinations.
Under the proposed rule, once the Secretary has made a positive
commercial fishery failure determination based on a fishery resource
disaster under either MSA section 312(a) or IFA section 308(b), he/she
may not make a commercial fishery failure determination in any
subsequent year based on the same fishery resource disaster. The
proposed rule would also disallow repetitive requests for
determinations of a serious disruption affecting future production
under section 308(b) of the IFA based on the same fishery resource
disaster on which a positive determination has already been made.
For the Secretary to make a new commercial fishery failure or
serious disruption determination in a fishery for which an earlier
positive determination was made, or in substantially the same fishery,
there must be a new triggering event based on new data that evidences
an appreciable change in the fishery resource and the economic
conditions of the commercial fishery. The change must show that there
has been a new cause of the restriction on access to the fishery
resource, different from the earlier determination. Additionally, the
commercial fishery failure must be measured from the circumstances
occurring after the last determination.
Determination of Harm Incurred Under IFA Section 308(d)
Section 308(d) of the IFA authorizes the Secretary to help persons
engaged in commercial fisheries, either by providing assistance
directly to those persons or by providing assistance indirectly through
states and local government agencies and nonprofit organizations, for
projects or other measures to alleviate harm determined by the
Secretary to have been incurred as a direct result of a fishery
resource disaster arising from a hurricane or other natural disaster.
Section 600.1503(d) of the proposed rule would define ``harm'' to mean
``uninsured physical damage or economic loss to fishing vessels,
fishing gear, processing facilities, habitat, marketability or
infrastructure (i.e. port facilities for landing or unloading catch)
suffered as a direct result of a fishery resource disaster arising from
a hurricane or other natural disaster and measured in economic terms.''
This is defined in Subpart C of 50 CFR 253.23(a)(2)and in our
experience, has been an appropriate measure of harm.
One Harm Incurred Determination per Fishery Resource Disaster
Section 600.15403(g) of the proposed rule would prevent repetitive
requests for determinations of harm incurred under IFA section 308(d)
based on the same fishery resource disaster on which a positive
determination has already been made. The reasons for NMFS to propose
this are the same as those reasons for disallowing repetitive requests
for determinations of a commercial fishery failure or serious
disruption based on the same fishery resource disaster. Repetitive
requests based on the same disaster do not provide additional benefits
for the
[[Page 2473]]
fishermen because Congress can respond to the determination by
appropriating additional money if the disaster relief was insufficient.
It is also a waste of resources to entertain repetitive requests. In
many instances the fishery resource will take years to recover and
reviewing repetitive requests only to come to the same conclusion is a
waste of government resources.
For the Secretary to make a new determination of harm incurred in a
fishery for which an earlier positive determination was made, there
must be a new triggering event based on new data that evidences an
appreciable change in the fishery resource and there must be a showing
of new harm incurred based on the average revenues during the most
recent 5-year period. NMFS believes this is an appropriate time period
based on the reasoning in the previous section.
Regional Catastrophic Fishery Failure Under MSA Section 315
Section 600.1503(h) sets forth requirements for a positive
determination of a regional catastrophic fishery failure. Under section
315 of the Magnuson-Stevens Act, a catastrophic regional fishery
disaster affects more than one state or a major fishery managed by a
Regional Fishery Management Council or interstate fishery commission.
A major fishery is defined as a fishery in Federal waters affecting
fishermen in more than 1 state or territory. In order to ensure that
the request actually covers a major fishery, requests for a
determination of a Regional Catastrophic Fishery Failure must be
submitted in writing by two or more Governors in a joint letter to the
Secretary.
Further, requests for a determination of a regional catastrophic
fishery failure under section 315 of the Magnuson-Stevens Act must meet
all of the requirements for a determination under section 312(a) of the
Magnuson-Stevens Act or section 308(d) of the Interjurisdictional
Fisheries Act and comply with all requirements of Sec. 600.1504.
In determining whether there has been a catastrophic regional
fishery disaster, the Secretary must conclude that the severity of the
economic impacts on the coastal or fishing communities are beyond the
normal range of average revenues during the most recent 5-year period.
Initiating an Evaluation Request
Where a Governor or an elected or politically-appointed
representative of the affected fishing community (i.e., mayor, city
manager, or county executive) wishes to submit under MSA section
312(a), or at least two Governors under MSA section 315, a written
request to the Secretary for fisheries disaster assistance, section
600.1504 of the proposed rule requires a letter containing key
information in order for NMFS to initiate an evaluation of the request.
Similarly, a request for disaster assistance under sections 308(b) or
308(d) of the IFA would require the same information.
The person(s) requesting disaster assistance is most likely to have
the relevant information and, therefore, is responsible for explaining
why a commercial fishery failure should be determined and providing
documentation supporting the request with the initial letter requesting
fisheries disaster assistance from the Secretary under either the MSA
or the IFA. The requester must submit 5-year average cost and revenue
information and NMFS, in its sole discretion, may request non-
government expert review of the economic data. Requesters should also
supply the necessary information on the fishery to assist the Secretary
in making a determination, including data on actual losses, the number
of participants, the number of vessels, and how long they participated
in the fishery. The requester also should provide information on the
amount of effort in the fishery before the fishery resource disaster
occurred. NMFS may request additional information it believes is
necessary to determine whether the economic impacts are severe enough
to constitute a commercial fishery failure.
The person(s) requesting disaster assistance is most likely to know
the rationale for his/her request and is therefore responsible for
supplying supporting documentation. This documentation must accompany
the initial letter requesting a determination of a fishery resource
disaster from the Secretary under either the MSA or the IFA. Requests
submitted under either the MSA or the IFA without a rationale and
supporting documentation for reaching a conclusion on whether or not
there is a fishery resource disaster will be denied. NMFS may require
the applicant to submit any additional information it believes is
necessary to conclude whether a fishery resource disaster has occurred.
This information is needed in order for the Secretary to effectively
evaluate the circumstances and impacts to determine if the requirements
proposed under section 600.1503 are met.
The initiation letter must include a clear definition of the
fishery, including identification of all fish stocks and whether it
includes non-Federal fisheries as well as Federal fisheries, and the
geographical boundaries of the fishery for which the request is being
made. The initiation letter must also include the rationale and
supporting documentation as outlined in this preamble and regulatory
text, including the eight items found at section 600.1504(a)(2). Any
initiation letter submitted must also include the amount of financial
assistance needed to alleviate the alleged commercial fishery failure
(MSA 312(a) or 315 and IFA 308(b)), the serious disruption affecting
future production (IFA 308(b)), or harm incurred (IFA 308(d)),
including which groups of fishery participants would be eligible to
receive assistance. The applicant should submit any additional
information he or she believes relevant to an evaluation of the
request. Before submitting the initiation letter, applicants are
encouraged to contact the appropriate NMFS regional office informally
for help in identifying materials to assist in the evaluation. NMFS
will send the requester a letter if additional information is needed to
make the determination.
If the request fails to meet any one of the appropriate three
prongs outlined above or is otherwise disapproved, NMFS will send the
applicant a letter explaining the reasons for disapproving the request.
Any new request from the applicant for disaster assistance in the same
fishery for which a positive determination has been made must include
an explanation of a new fishery resource disaster or a significant
change in circumstances including a new 5-year average for impacts in
order to warrant a review by NMFS.
Any vessel-specific fishery information submitted to NMFS with a
request for a MSA 312(a) or 315 determination would be subject to the
confidentiality provisions and limitations of section 402(b) of the MSA
and regulations in 50 CFR 600 subpart E. Information submitted with a
request for an IFA 308(b) or 308(d) determination will be protected to
the extent permitted by statute.
The Secretary or his/her designee may initiate his/her own
evaluation and, based on consideration of relevant facts or data, the
Secretary's designee may make an internal recommendation to the
Secretary for fisheries disaster assistance.
Evaluation Process
Section 600.1505 of the proposed rule provides that the Secretary
will conduct
[[Page 2474]]
his/her evaluation in accordance with section 600.1503 of this proposed
rule. The Secretary will inform the requester of the outcome of his/her
evaluation, including reasons for the decision.
In the instance of a ``fast track'' determination where an 80
percent decline in revenues is substantiated, the Secretary will send
the requester a positive determination within 30 days of receiving
evidence substantiating a decrease of 80 percent if the other two
prongs of the test are met. In the instance of a ``standard track''
determination, the Secretary will send the requester a letter of
positive or negative determination as soon as practicable.
The Secretary will strive to make a decision on all fisheries
disaster assistance requests within 120 days from receipt of a complete
application.
Classification
This proposed rule is published under the authority of, and
consistent with, the MSA and the IFA.
This proposed rule has been determined to be significant for
purposes of Executive Order 12866.
This proposed rule has no impacts on small business entities
because of the nature of the rule until a fishery-specific disaster
assistance is proposed at some future time.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
The factual basis for this determination is as follows:
The proposed rule would establish guidance and administrative
procedures for processing requests for all fisheries disaster
assistance requests under the Magnuson-Stevens Act and the
Interjurisdictional Fisheries Act. It is not fishery specific.
Therefore, the proposed rule has no direct impacts on small business
entities. The benefits of this rule in clarifying the fishery
disaster assistance provisions of the MSA and the IFA through
rulemaking, thereby facilitating the processing of requests, are
believed considerable; however, these are not quantifiable without
application to specific fisheries. Because the proposed rule conveys
broad guidance and is not fishery-specific, this rulemaking does not
lend itself to quantitative or even qualitative analysis. Analysis
of data and impacts on vessels, vessel revenues, port revenues, fish
stock impacts, etc. is not possible in the absence of identifying
specific fisheries and disaster assistance fishery components.
As a result, an initial regulatory flexibility analysis is not required
and none has been prepared.
This proposed rule would require the submission of information from
members of the public who decide to submit fisheries disaster
assistance requests to the Secretary. These collection-of-information
requirements are subject to review and approval by the Office of
Management and Budget (OMB) under the Paperwork Reduction Act (PRA).
These requirements have been submitted to OMB for approval. The
public's reporting burden includes the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection-of-information
requirements. While preparation time for the NOAA/NMFS requirements
will vary with each disaster assistance request, the average
preparation time for the requester is estimated to be 40 hours for each
disaster assistance request. NMFS expects to receive 4 disaster
assistance requests per year. Thus, the total annual burden is
estimated to be 160 hours per year. Public comment is sought regarding:
Whether the proposed collection of information is necessary for the
proper performance of the functions of the agency, including whether
the information shall have practical utility; the accuracy of the
burden estimate; ways to enhance the quality, utility, and clarity of
the information to be collected; and ways to minimize the burden of the
collection of information, including through the use of automated
collection techniques or other forms of information technology. Send
comments on these or any other aspects of the collection of information
to NMFS at the above address, and by e-mail to: David_
Rostker@omb.eop.gov or by fax to 202-395-7285.
Notwithstanding any other provision of law, no person is required
to respond to nor shall any 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.
Persons affected by these regulations should be aware that other
Federal and state statutes and regulations may provide additional or
alternative sources of fisheries disaster assistance.
List of Subjects
50 CFR Part 253
Disaster assistance, Fisheries, Grant programs--business, Reporting
and recordkeeping requirements.
50 CFR Part 600
Fisheries, Fisheries disaster assistance, Fishing, Reporting and
recordkeeping requirements.
Dated: January 12, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR parts 253 and 600 as follows:
PART 253--FISHERIES ASSISTANCE PROGRAMS
1. The authority citation for 50 CFR part 253 continues to read as
follows:
Authority: 46 U.S.C. 1271-1279 and 16 U.S.C. 4101 et seq.
2. In Sec. 253.20, revise the definition for ``Commercial fishery
failure'' to read as follows:
Sec. 253.20 Definitions.
* * * * *
Commercial fishery failure means either one of the following:
(1) The 12-month revenues from commerce in the fishery (which is
dependent on the fishery resource subject to a fishery resource
disaster) have decreased by 80 percent or more compared to the average
for the immediately preceding 5-year period; or
(2) The 12-month revenues from commerce in the fishery (which is
dependent on the fishery resource subject to a fishery resource
disaster) have decreased by at least 35 percent compared to the average
for the immediately preceding 5-year period, and severe economic
impacts have occurred due to such decreased annual revenues and the
decline in revenues is beyond the normal range of fluctuation of
average annual revenues of the fishery compared with the immediately
preceding 5-year period. Decreased revenues not equal to at least a 35
percent decline of revenues over the immediately preceding 5-year
period is by definition not a commercial fishery failure.
* * * * *
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
3. The authority citation for 50 CFR part 600 continues to read as
follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
4. Under part 600, add subpart Q to read as follows:
Subpart Q--Fisheries Disaster Assistance
Sec.
600.1500 Purpose and scope.
600.1501 Relation to other laws.
[[Page 2475]]
600.1502 Definitions.
600.1503 Determining a commercial fishery failure or determining a
serious disruption affecting future production of a fishery or
determining harm due to a fishery resource disaster.
600.1504 Initiating an evaluation request.
600.1505 Evaluation process.
600.1506 [Reserved]
600.1507 [Reserved]
600.1508 [Reserved]
600.1509 [Reserved]
600.1510 [Reserved]
Authority: 16 U.S.C. 1861a, 16 U.S.C. 1864, and 16 U.S.C. 4107.
Subpart Q--Fisheries Disaster Assistance
Sec. 600.1500 Purpose and scope.
The regulations in this subpart apply to fishery disasters under
the authority of sections 312(a) and 315 of the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act), and
under the authority of section 308(b) and 308(d) of the
Interjurisdictional Fisheries Act of 1986 (Interjurisdictional
Fisheries Act). This subpart provides guidance and implements
administrative procedures for disaster assistance under both of these
laws, and applies to Federal fisheries and State coastal fisheries.
Sec. 600.1501 Relation to other laws.
(a) Regulations pertaining to fisheries disaster assistance under
the Interjurisdictional Fisheries Act are also set forth in subparts A
and C of part 253--Fisheries Assistance Programs of Title 50 of the
Code of Federal Regulations.
(b) Persons affected by these regulations should be aware that
other Federal and state statutes and regulations may provide additional
or alternative sources of fisheries disaster assistance.
Sec. 600.1502 Definitions.
(a) In addition to the definitions in the Magnuson-Stevens Act and
the Interjurisdictional Fisheries Act and in Sec. 253.20 of this
title, the terms used in this subpart have the following meanings:
Catastrophic regional fishery disaster means a natural disaster,
including a hurricane or tsunami, or a regulatory closure (including
regulatory closures resulting from judicial action) to protect human
health or the marine environment (but not including regulations and
closures to address overfishing), that:
(1) Results in economic losses to coastal or fishing communities;
(2) Affects more than one state or a major fishery managed by a
Council or interstate fishery commission; and
(3) Is determined by the Secretary to be a commercial fishery
failure under section 312(a) of the Magnuson-Stevens Act or a fishery
resource disaster under section 308(d) of the Interjurisdictional
Fisheries Act.
Coastal community means a group of people living in a particular
area located on the coast of any of the several states of the United
States.
Commercial fishery means the same as ``commercial fishing'' in the
Magnuson-Stevens Act, which is ``fishing in which the fish harvested,
either in whole or in part, are intended to enter commerce or enter
commerce through sale, barter, or trade.''
Commercial fishery failure means either one of the following:
(1) The 12-month revenues from commerce in the fishery (which is
dependent on the fishery resource subject to a fishery resource
disaster) have decreased by 80 percent or more compared to the average
for the immediately preceding 5-year period; or
(2) The 12-month revenues from commerce in the fishery (which is
dependent on the fishery resource subject to a fishery resource
disaster) have decreased by at least 35 percent compared to the average
for the immediately preceding 5-year period, and severe economic
impacts have occurred due to such decreased annual revenues and the
decline in revenues is beyond the normal range of fluctuation of
average annual revenues of the fishery compared with the immediately
preceding 5-year period. Decreased revenues not equal to at least a 35
percent decline of revenues over the immediately preceding 5-year
period is by definition not a commercial fishery failure.
Conservation and management means all of the rules, regulations,
conditions, methods, and other measures which are required to rebuild,
restore, or maintain, and which are useful in rebuilding, restoring, or
maintaining, any fishery resource and the marine environment.
Council means one of the eight Regional Fishery Management Councils
established by Section 302 of the Magnuson-Stevens Act.
Economic losses means a revenue decline in a fishery to a degree
consistent with a commercial fishery failure for the fishery.
Fishery means one or more stocks of fish which can be treated as a
unit for purposes of conservation and management and which are
identified on the basis of geographic, scientific, technical,
recreational, and economic characteristics; and any fishing for such
stocks.
Fishery resource means any fishery, any stock of fish, any species
of fish, and any habitat of fish when used in connection with requests
for disaster assistance under the Magnuson-Stevens Act; and means
finfish, mollusks, crustaceans, and any other form of marine animal or
plant life, other than marine mammals and birds when used in connection
with requests for disaster assistance under the Interjurisdictional
Fisheries Act. A fishery resource is not a part of the marine
environment.
Fishery resource disaster means a sudden, unexpected, large
decrease in fish stock biomass or other change that results in loss of
essentially all access to the fishery resource, such as loss of fishing
vessels and gear, for a substantial period of time. Under the Magnuson-
Stevens Act, executive or judicial actions implemented to protect human
health or the marine environment may cause a fishery resource disaster
if the result is loss of essentially all access to the fishery resource
for a substantial period of time or for the foreseeable future.
Fishing community means a coastal community which is substantially
dependent on or substantially engaged in the harvest or processing of
fishery resources to meet social and economic needs.
Harm means uninsured physical damage or economic loss to fishing
vessels, fishing gear, processing facilities, habitat, marketability or
infrastructure (i.e., port facilities for landing or unloading catch)
suffered as a direct result of a fishery resource disaster arising from
a hurricane or other natural disaster and measured in economic terms,
consistent with the requirements to determine a commercial fishery
failure.
Major fishery managed by a Council means any fishery for which a
Regional Fishery Management Council has prepared and the Secretary has
approved and implemented a Federal fishery management plan under
section 304 of the Magnuson-Stevens Act.
Man-made causes means causes due to some human event or activity
that could not have been prevented or addressed by fishery management
measures and that are otherwise beyond the control of fishery managers
to mitigate through conservation and management measures, including
regulatory restrictions (including those imposed as a result of
judicial action) imposed to protect human health or the marine
environment.
Marine environment consists of:
(1) Ocean or coastal waters (note: Coastal waters may include
intertidal areas, bays, or estuaries);
[[Page 2476]]
(2) An area of lands under ocean or coastal waters; or
(3) A combination of the above.
Natural causes means a weather-, climate-, or biology-related event
(e.g., hurricane, flood, drought, El Ni[ntilde]o effects on water
temperature, disease), but does not include normal or cyclical
variations in species distribution or stock abundance, etc.
Secretary means the Secretary of Commerce, or his/her designee.
Serious disruption affecting future production means an unexpected
sudden and precipitous decrease in the harvestable biomass or spawning
stock size of a fish stock that causes a limitation to access to the
fishery for a substantial period of time in a specific area. The
anticipated economic impact on production is consistent with a
commercial fishery failure.
Undetermined causes means causes in which the current state of
knowledge does not allow the identification of the exact cause or
causes; however, fishing restrictions to end overfishing, overfishing,
or inadequate harvest controls cannot be the basis for making a fishery
disaster determination.
(b) If any of the terms in paragraph (a) of this section are
defined differently in Sec. 253.20 of this title, for purposes of this
subpart the definitions in this section apply.
Sec. 600.1503 Determining a commercial fishery failure or determining
a serious disruption affecting future production of a fishery or
determining harm due to a fishery resource disaster.
(a) Three-pronged test. Every request for fisheries disaster
assistance under section 312(a) of the Magnuson-Stevens Act or under
sections 308(b) or 308(d) of the Interjurisdictional Fisheries Act must
meet the appropriate three-pronged test:
(1) There must have been a fishery resource disaster within the
meaning of the Magnuson-Stevens Act or the Interjurisdictional
Fisheries Act and these regulations;
(2) The cause for the fishery resource disaster must be one of the
causes defined in paragraph (c) of this section; and
(3)(i) Under the Magnuson-Stevens Act section 312(a) and
Interjurisdictional Fisheries Act section 308(b) and these regulations,
there must be economic impact stemming from the fishery resource
disaster which supports a determination of a commercial fishery
failure;
(ii) Under Interjurisdictional Fisheries Act section 308(b), in
lieu of a commercial fishery failure there must be a determination of a
serious disruption affecting future production of a fishery; or
(iii) Under Interjurisdictional Fisheries Act section 308(d), there
must be a determination of harm to persons engaged in commercial
fisheries incurred as a direct result of a fishery resource disaster
arising from a hurricane or other natural disaster.
(b) Establishing the existence of a fishery resource disaster. (1)
Where there is convincing evidence that there has been a sudden,
unexpected large decrease in fish stock biomass or other event that
results in the loss of essentially all access to the fishery resource,
for a substantial period of time in a specific area, the Secretary will
conclude that there has been a fishery resource disaster.
(2) Analysis by the Secretary may include, among other things,
information provided by fishery stock assessments, landings data, storm
damage assessments to habitat, and documents evidencing lost vessels
and gear. The Secretary may require the applicant to submit whatever
additional information it believes is necessary to reach a conclusion
on whether a fishery resource disaster has occurred.
(c) Causes--natural, man-made, or undetermined. (1) Under Magnuson-
Stevens Act section 312(a) and these regulations, the Secretary shall
determine whether there has been a commercial fishery failure due to a
fishery resource disaster as a result of:
(i) Natural causes;
(ii) Undetermined causes; or
(iii) Man-made causes beyond the control of fishery managers to
mitigate through conservation and management measures, including
regulatory restrictions (including those imposed as a result of
judicial action) imposed to protect human health or the marine
environment.
(iv) Executive or judicial actions that provide for fishery
resource conservation do not constitute ``man-made'' causes and are not
a basis for commercial fishery failure determination, unless they are
imposed to protect human health or the marine environment. A regulatory
closure of a fishery to protect public health or the marine environment
could cause a fishery resource disaster resulting in a commercial
fishery failure. However, fishery regulations (including fishery
rebuilding regulations, closure of a fishery or other direct or
indirect effort controls) for conservation and management of a fishery
resource, including measures to address overfishing, cannot constitute
the basis for a determination that a commercial fishery failure due to
a fishery resource disaster exists under section 312(a) of the
Magnuson-Stevens Act.
(2) Under Interjurisdictional Fisheries Act section 308(b) and
these regulations, the Secretary shall determine whether there has been
a commercial fishery failure or a serious disruption affecting future
production due to a fishery resource disaster as a result of:
(i) Natural causes; or
(ii) Undetermined causes.
(3) Under Interjurisdictional Fisheries Act section 308(d) and
these regulations, the Secretary shall determine whether harm has been
incurred as a result of natural causes.
(d) Determination of a commercial fishery failure or a serious
disruption affecting future production of a fishery.
(1) Elements considered in making the determination. In making a
determination of a commercial fishery failure, the Secretary shall
consider the stock or stocks of fish that constitute the fishery in
which a commercial fishery failure determination is sought, whether the
request includes non-Federal as well as Federal fisheries, and the
geographical boundaries of the fishery. The analysis by the Secretary
may include information on revenues, landings data, prices, actual
losses, and market conditions. The magnitude of the fishery is
important as are other opportunities for the affected fishermen. The
Secretary will consider the immediately preceding 5-year average
revenue information. Exogenous market factors (e.g., reduced demand for
product, increased fuel and other energy costs) cannot be the basis for
a positive determination of a commercial fishery failure. The
Secretary, in his/her sole discretion, may request non-government
review of the economic data. The Secretary may require the applicant to
submit whatever additional information he/she believes is necessary to
determine whether the economic impacts are severe enough to constitute
a commercial fishery failure.
(i) In making a determination of a serious disruption affecting
future production of a fishery, the Secretary shall consider the
estimated decrease in harvestable biomass or spawning stock size of the
fishery affected by the disaster arising from natural or undetermined
causes.
(ii) [Reserved]
(2) Fast Track Determination. Pursuant to Magnuson-Stevens Act
section 312(a) and Interjurisdictional Fisheries Act section 308(b), if
the Secretary finds that the 12-month revenues from commerce in the
fishery (which is dependent on the fishery resource subject to a
fishery resource disaster) have decreased by 80 percent
[[Page 2477]]
or more compared to the average for the immediately preceding 5-year
period, then the Secretary shall determine there has been a commercial
fishery failure. In addition, in the case of Interjurisdictional
Fisheries Act section 308(b), the Secretary shall issue a determination
of a serious disruption affecting future production if he/she finds
that the harvestable biomass or spawning stock size of the fish
targeted by the fishery (which is dependent on the fishery resource
subject to a fishery disaster) has decreased by 80 percent or more
compared to the immediately preceding 5-year period. In both of these
instances, the Secretary will send the applicant a letter of positive
determination no later than 30 days after receiving evidence
substantiating a decrease in revenues of 80 percent or more and that
the elements of the three prong test relating to causation and fishery
resource disaster are met.
(3) Standard Track Determination. Pursuant to Magnuson-Stevens Act
section 312(a) and Interjurisdictional Fisheries Act section 308(b), if
the Secretary finds that the 12-month revenues from commerce in the
fishery (which is dependent on the fishery resource subject to a
fishery resource disaster) have decreased by less than 80 percent but
at least 35 percent compared to the average annual revenues during the
immediately preceding 5-year period, then the Secretary may issue a
determination of a commercial fishery failure. The Secretary shall make
his/her decision based on the severity of the economic impacts with
consideration of mitigating circumstances. In determining the severity
of the economic impacts, the Secretary shall consider, among other
things, the degree of economic hardship suffered by those engaged in
the fishery. Because the impact of revenue decline will vary among
fisheries, a commercial fishery failure determination in a fishery
where 12-month revenues have declined less than 80 percent but at least
35 percent compared to the average annual revenues during the
immediately preceding 5-year period, must be made on a case-by-case
basis. For a positive determination, the Secretary would need to
conclude that severe economic impacts due to significantly decreased
revenues from commerce in the fishery (which is dependent on the
fishery resource subject to a fishery resource disaster) of between 30
and 80 percent over 12 months are beyond the normal range of revenue
fluctuations during the immediately preceding 5-year period. The
Secretary shall consider the degree to which those impacts are offset
by mitigating circumstances, including other commercial fishing
opportunities for the affected fishermen.
(4) In the case of Interjurisdictional Fisheries Act section
308(b), the Secretary may issue a determination of a serious disruption
affecting future production if he/she finds that the harvestable
biomass or spawning stock size of the fish targeted by the fishery
(which is dependent on the fishery resource subject to a fishery
disaster) has decreased by less than 80 percent but at least 35 percent
compared to the average for the immediately preceding 5-year period.
The Secretary shall make his/her decision based on the severity of the
disruption affecting future production of the fishery. In reaching a
determination, the Secretary shall consider, among other things, most
recent trawl surveys and other fishery resource surveys conducted by
NMFS and/or state officials, as well as most recent stock assessments
and other indicators of future production from the fishery.
(5) A decrease in 12-month revenues of less than 35 percent
compared to the average of the immediately preceding 5-year period will
not support a positive determination under Magnuson-Stevens Act 312(a).
A decrease in harvestable biomass or spawning stock size of less than
35 percent compared to the average for the immediately preceding 5-year
period will not support a positive determination under the
Interjurisdictional Fisheries Act 308(b).
(e) Repetitive requests not allowed: One positive commercial
fishery failure or serious disruption determination per fishery
resource disaster. Once the Secretary has made a positive commercial
fishery failure determination, or under Interjurisdictional Fisheries
Act section 308(b) found a serious disruption affecting future
production of a fishery due to a fishery resource disaster, he/she may
not make a commercial fishery failure or serious disruption
determination in any subsequent year based on the same fishery resource
disaster. In order for the Secretary to make a new commercial fishery
failure or serious disruption determination in a fishery for which an
earlier positive determination was made, or in substantially the same
fishery, there must be a new triggering event based on new data that
evidences an appreciable change in the fishery resource and the
economic conditions of the commercial fishery failure.
(f) Determination of harm incurred under Interjurisdictional
Fisheries Act section 308(d). The Secretary may provide assistance
directly to persons engaged in commercial fishing or indirectly to
those persons through states and local government agencies and
nonprofit organizations, for projects or other measures to alleviate
harm determined by the Secretary to have been incurred as a direct
result of a fishery resource disaster arising from a hurricane or other
natural disaster. In making a determination as to whether harm to
persons engaged in commercial fisheries incurred as a direct result of
a fishery resource disaster arising from a hurricane or other natural
disaster, the Secretary must determine that:
(1) There was a fishery resource disaster within the meaning of
section 308(d) of the Interjurisdictional Fisheries Act and these
regulations;
(2) The cause for the disaster must have been a hurricane or other
natural disaster; and
(3) The harm incurred was a direct result of a fishery resource
disaster arising from a hurricane or other natural disaster.
(g) One harm incurred determination per fishery resource disaster.
Once the Secretary has made a positive determination of harm incurred
under Sec. 600.1503(f), he/she may not make a harm incurred
determination in any subsequent year based on the same fishery resource
disaster. In order for the Secretary to make a new determination of
harm incurred in a fishery for which an earlier positive determination
was made, there must be a new triggering event based on a fishery
resource disaster arising from new data that evidences an appreciable
change in the fishery resource. Additionally, there must be a showing
of new harm incurred based on the average revenues during the
immediately preceding 5-year period.
(h) Regional catastrophic fishery failure. Under section 315 of the
Magnuson-Stevens Act, a catastrophic regional fishery disaster affects
more than one state or a major fishery managed by a Regional Fishery
Management Council or interstate fishery commission.
(1) A major fishery is defined as a fishery in Federal waters
affecting fishermen in more than 1 state or territory. Requests for a
determination of a Regional Catastrophic Fishery Failure must be
submitted in writing by two or more Governors in a joint letter to the
Secretary.
(2) A determination of a regional catastrophic fishery failure
under section 315 of the Magnuson-Stevens Act must meet all of the
requirements for a determination under section 312(a) of the Magnuson-
Stevens Act or section 308(d) of the Interjurisdictional
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Fisheries Act and comply with all requirements of Sec. 600.1504.
(3) In determining whether there has been a catastrophic regional
fishery disaster, the Secretary must conclude that the severity of the
economic impacts on the coastal or fishing communities are beyond the
normal range of revenue fluctuations during the 5-year period
immediately preceding the claimed disaster.
Sec. 600.1504 Initiating an evaluation request.
(a) The Secretary may accept requests for fisheries disaster
assistance under section 312(a) or section 315 of the Magnuson-Stevens
Act from the Governor of an affected state, or two or more Governors if
under section 315, or an elected or politically appointed
representative of the affected fishing community (i.e., mayor, city
manager, or county executive). The Secretary may accept requests for
fisheries disaster assistance under section 308(b) or section 308(d) of
the Interjurisdictional Fisheries Act from an elected or politically
appointed representative of the affected fishing community (i.e.,
mayor, city manager, or county executive). All such requests should be
submitted to the Secretary by letter and must include:
(1) A clear definition of the fishery, including identification of
all fish stocks and whether it includes non-Federal fisheries as well
as Federal fisheries, and the geographical boundaries of the fishery
for which the request is being made;
(2) The rationale and supporting documentation as required by this
subpart, including:
(i) Characteristics of the fishery which is the subject of the
request and other related fisheries that participants also fish in
(size and value; number of participants; seasonal and other
environmental limitations; socio-economic data; landings data; and
market conditions);
(ii) Decline in landings, economic impact, revenues, or net
revenues by vessel category, port, etc. (this should represent the
proportion of the affected fishery resource compared to the commercial
fishery as a whole, not just for the affected fishery resource);
(iii) Number of participants involved by vessel category, port,
etc.;
(iv) Length of time the resource (or access to it) has been or will
be restricted;
(v) Documented decline in the stock(s);
(vi) In the case of a fishery disaster request for a fishery that
has been subject to overfishing during the 5-year period immediately
preceding the claimed disaster, the Secretary will presume that
overfishing or inadequate harvest controls was the cause of the claimed
disaster unless the requester provides:
(A) Information that demonstrates that overfishing did not cause
the disaster if the stock(s) was subject to overfishing during the 5-
year period immediately preceding the claimed disaster; and
(B) Information that demonstrates that adequate harvest controls
were in place during the 5-year period immediately preceding the
claimed disaster if the disaster was claimed to be caused by
undetermined causes.
(vii) Documented spending plan which describes the activities that
could be used to mitigate adverse impacts if a commercial fishery
failure due to a fishery resource disaster were determined; and
(viii) A comprehensive economic and socio-economic evaluation of
the affected region's fisheries, including economic losses to coastal
and fishing communities, if the request is for a catastrophic regional
fishery disaster.
(3) The amount of financial assistance needed to alleviate the
claimed commercial fishery failure (under Magnuson-Stevens Act section
312(a) or 315 and under the Interjurisdictional Fisheries Act section
308(b)), the serious disruption affecting future production (under
Interjurisdictional Fisheries Act section 308(b)), or harm incurred
(under Interjurisdictional Fisheries Act section 308(d)), including
which groups of fishery participants would be eligible to receive
assistance.
(b) The Secretary will presume that overfishing or inadequate
harvest controls was the cause of the claimed disaster unless the
requester demonstrates otherwise.
(c) The requester may submit any additional information he or she
believes relevant to an evaluation of the request. The requester is
encouraged to contact the appropriate NMFS regional office informally
for assistance in identifying materials that would assist in the
evaluation before submitting the initiation letter.
(d) After receiving the initial request, the Secretary may request
any additional information that it deems necessary to complete his/her
evaluation and reach a decision.
(e) Requests without a rationale and supporting documentation for
determining a commercial fishery failure will be denied. If the request
fails to meet any one of the appropriate three prongs required to make
a determination, the Secretary shall send the applicant a letter
explaining his/her reasons for disapproving the request.
(f) Any new request from the applicant for disaster assistance in
the same fishery for which a positive determination has previously been
made must include an explanation of a new triggering event based on new
data that evidences an appreciable change in the fishery resource, and
the economic conditions of the commercial fishery showing new harm.
(g) Any vessel-specific fishery information submitted to the
Secretary with a request for a Magnuson-Stevens section 312(a) or 315
determination would be subject to the confidentiality provisions and
limitations of section 402(b) of the Magnuson-Stevens Act and
regulations in 50 CFR 600 subpart E. Information submitted with a
request for an Interjurisdictional Fisheries Act section 308(b) or
308(d) determination will be protected to the extent permitted by
statute.
(h) The Secretary may also initiate his/her own evaluation and make
a determination for fisheries disaster assistance based on relevant
facts or data.
Sec. 600.1505 Evaluation process.
The Secretary shall initiate an evaluation of the letter requesting
a determination as soon as practicable after receiving it. The
Secretary shall conduct his/her evaluation in accordance with Sec.
600.1503. The Secretary shall inform the requester of the outcome of
the evaluation, including reasons for the decision.
Sec. 600.1506 [Reserved]
Sec. 600.1507 [Reserved]
Sec. 600.1508 [Reserved]
Sec. 600.1509 [Reserved]
Sec. 600.1510 [Reserved]
[FR Doc. E9-810 Filed 1-14-09; 8:45 am]
BILLING CODE 3510-22-P