Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Proposed Rules 2467 

protections under the Bald and Golden 

Eagle Protection Act and the Migratory 

Bird Treaty Act; and 

(e) Other natural or manmade factors 

affecting its continued existence, 

including but not limited to information 

on: Productivity, survival, and mortality 

rates of this population; the occurrence 

and effect of inbreeding; effects to 

Sonoran Desert area bald eagles while 

outside the Sonoran Desert area; effects 

to Sonoran Desert area bald eagles’ prey 

base and productivity, including effects 

of nonnative predatory fish and native 

fish restoration; effects of low-flying 

aircraft; the presence and abundance of 

pesticides and contaminants such as 

lead, mercury, or 

dichlorodiphenyldichloroethylene 

(DDE); the effects of climate change; and 

the effects from eggshell thinning. 

(6) Information supporting the 

existing boundary developed in our May 

1, 2008, final listing rule (73 FR 23966) 

for Sonoran Desert area bald eagles 

under consideration in this status 

review, or information indicating that 

the boundary should be modified. 

If you submitted information in 

response to our notice of initiation of a 

status review, which was published in 

the Federal Register on May 20, 2008 

(73 FR 29096), you do not need to 

resend it. We will include the 

submission in the public record, and we 

will consider the information in the 

preparation of our status review. 

You may submit your information 

concerning this status review by one of 

the methods listed in the ADDRESSES

section. We will not consider 

submissions sent by e-mail or fax or to 

an address not listed in the ADDRESSES

section. 

If you submit information via http:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the Web site. If you submit personal 

identifying information, you may 

request at the top of your document that 

we withhold this personal identifying 

information from public review. 

However, we cannot guarantee that we 

will be able to do so. We will post all 

hardcopy submissions on http:// 

www.regulations.gov. 

Information and materials we receive, 

as well as supporting documentation we 

used in preparing this notice, will be 

available for public inspection on 

http://www.regulations.gov, or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Arizona Ecological Services 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Background 

Section 4(b)(3)(B) of the Act requires 

that, for any petition to revise the Lists 

of Threatened and Endangered Wildlife 

and Plants that contains substantial 

scientific or commercial information 

that the action may be warranted, we 

make a finding within 12 months of the 

date of the receipt of the petition on 

whether the petitioned action is: (a) Not 

warranted, (b) warranted, or (c) 

warranted but precluded by other 

pending proposals. Such 12-month 

findings are to be published promptly in 

the Federal Register. 

Federal actions taken prior to May 

2008 are described in a notice of 

initiation of a status review of the 

Sonoran Desert area bald eagle, which 

was published in the Federal Register 

on May 20, 2008 (73 FR 29096). On 

August 27, 2008, the U.S. District Court 

for the District of Arizona granted the 

Center for Biological Diversity and 

Maricopa Audubon Society’s 

unopposed motion to amend the 

previous court order (Center for 

Biological Diversity v. Kempthorne, CV 

07–0038–PHX–MHM (D. Ariz.)) to 

extend the completion date of the bald 

eagle status review to October 12, 2009. 

Included in the motion submitted to the 

court were declarations discussing the 

need for additional time for Native 

American Tribes to compile and submit 

information. 

At this time, we are soliciting new 

information on the status of and 

potential threats to the Sonoran Desert 

population of bald eagles. We will base 

our new determination as to whether 

listing is warranted on a review of the 

best scientific and commercial 

information available, including all 

such information received as a result of 

this notice. For more information on the 

biology, habitat, and range of the 

Sonoran Desert population of bald 

eagles, please refer to our previous 90- 

day finding published in the Federal 

Register on August 30, 2006 (71 FR 

51549), and our final delisting rule for 

the bald eagle published in the Federal 

Register on July 9, 2007 (72 FR 37346). 

Author 

The primary authors of this notice are 

the staff members of the Arizona 

Ecological Services Office. 

Authority 

The authority for this action is the 

Endangered Species Act of 1973 (16 

U.S.C. 1531 et seq.). 

Dated: January 7, 2009. 

Kenneth Stansell, 

Acting Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. E9–552 Filed 1–14–09; 8:45 am] 

BILLING CODE 4310–55–P 

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. 

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, 

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2468 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Proposed Rules 

Attn: Disaster Assistance Program 

Guidance and Procedures, 1315 EastWest 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. 

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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Proposed Rules 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 ThreePronged 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 

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2470 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Proposed Rules 

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 biologyrelated event (e.g., hurricane, flood, 

drought, El Ninno ̃ 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 

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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Proposed Rules 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 

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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 

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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 MagnusonStevens 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 

§ 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 

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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 MagnusonStevens 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 § 253.20, revise the definition for 

‘‘Commercial fishery failure’’ to read as 

follows: 

§ 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. 

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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 

§ 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. 

§ 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. 

§ 600.1502 Definitions. 

(a) In addition to the definitions in the 

Magnuson-Stevens Act and the 

Interjurisdictional Fisheries Act and in 

§ 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); 

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(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 Nin ̃ 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 

§ 253.20 of this title, for purposes of this 

subpart the definitions in this section 

apply. 

§ 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 threepronged 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 MagnusonStevens 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 ‘‘manmade’’ 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 

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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 

§ 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 § 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. 

§ 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; socioeconomic 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. 

§ 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 § 600.1503. The 

Secretary shall inform the requester of 

the outcome of the evaluation, including 

reasons for the decision. 

§ 600.1506 [Reserved] 

§ 600.1507 [Reserved] 

§ 600.1508 [Reserved] 

§ 600.1509 [Reserved] 

§ 600.1510 [Reserved] 

[FR Doc. E9–810 Filed 1–14–09; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 080410547–81602–01] 

RIN 0648–AW70 

Magnuson–Stevens Fishery 

Conservation and Management Act 

Provisions; Fisheries of the 

Northeastern United States 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

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