[Federal Register Volume 74, Number 10 (Thursday, January 15, 2009)]
[Proposed Rules]
[Pages 2467-2478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-810]


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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 [email protected]">[email protected], 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 [email protected].

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: [email protected] 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

[[Page 2478]]

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