78639
Federal Register
/Vol. 71, No. 250/Friday, December 29, 2006/Rules and Regulations
One letter was sent by a member of thepublic who conducts marine scientificresearch for the University of California,Santa Barbara; the other letter was sentjointly by three environmental advocacyorganizations (Natural ResourcesDefense Council, Oceana, and TheOcean Conservancy; hereinafter,
‘‘
TheThree Organizations.
’’
) Of the 1,446emails received from members of thepublic, one email was original andclearly different from all of the otheremails. The remaining 1,445 emailswere form emails from members of thepublic who repeated the same title andtext in their email messages. Somesenders of the form email addedpersonalized, but non-substantive, pleasor threats to the repeated text. NMFSalso received two letters from theCouncil, summarizing discussions itheld at its September and November2006 meetings on limited refinements toits 2007
–
2008 groundfish specificationsand management measuresrecommendations. Theserecommendations were either based onscientific information received after the June 2006 Council meeting, or acorrection to a numerical mistake. TheCouncil
’
s recommended changes arediscussed below in the section on
Changes from the Proposed Rule
.Comments received on the proposedrule are addressed here:
Comment 1:
The Three Organizationsstate that NMFS
’
s legal and long-termobligation with an overfished species isto rebuild as quickly as possible. Theyfurther state that the only thing that thecourt order from
Natural ResourcesDefense Council
v.
NMFS
, 421 F.3d 872(9th Cir. 2005) [hereinafter
NRDC
v.
NMFS
] allows NMFS to do in taking theshort-term needs of fishing communitiesinto account is to merely avoiddisastrous short-term consequences forthose communities. The ThreeOrganizations provide theirinterpretation of
‘‘
disastrousconsequences
’’
for a groundfish fishingcommunity that annual revenuereductions from 2005/2006 to 2007/2008 should exceed 60 percent beforethose reductions result in disastrousconsequences. They then express the belief that a 40 percent reduction inexvessel revenue from 2005 is notdisastrous enough, and too far from theCourt
′
s example of a 100 percentreduction in revenue.
Response:
NMFS
′
s legal and long-termobligation with overfished species is torebuild those species as quickly aspossible, taking into account the statusand biology of those stocks, the needs of fishing communities, and theinteractions of those stocks within themarine ecosystem. Stating that theobligation is simply to rebuild asquickly as possible mis-characterizesthe Magnuson-Stevens Act
′
srequirement to manage fish stocks sothat management measures rebuildthose stocks while also taking intoaccount the needs of fishingcommunities that depend on thosestocks. In NRDC v. NMFS, the courtinterpreted the Magnuson-Stevens Actas showing Congress
′
intent thatoverfished species be rebuilt as quicklyas possible (taking into account thestatus and biology of the fish stocks andthe needs of fishing communities), butleaving
‘‘
some leeway to avoiddisastrous short-term consequences forfishing communities.
’’
NMFS and theCouncil applied the court
′
s direction indeveloping the EIS for this action andAmendment 16
–
4 by first identifying,and then giving careful consideration tothe short-term needs of fishingcommunities, particularly: thevulnerability of different fishingcommunities to reductions in availableharvest; the resilience of differentfishing communities to reductions inavailable harvest; the resilience of different fishing communities tochanges in community groundfishfishing revenues; the effects that recentpast harvest levels have had on fishingcommunities; and, the need formanagement flexibility to avoiddisastrous immediate consequencesfrom inseason management measuresadjustments.The statutory standard requires thatNMFS take into account the needs of fishing communities. It does not requirethat there be a disaster (howeverdefined) prior to making communityadjustments. The 9th Circuit
′
s use of theterm
‘‘
disastrous
’’
was not meant toredefine the provisions of 304(e) of theMagnuson-Stevens Act or import
‘‘
disaster
’’
language from other portionsof the Magnuson-Stevens Act or otherstatutes into the 304(e) process.Nevertheless, because the commentfocuses on the question of whetherAmendment 16
–
4 and the 2007
–
2008groundfish specifications andmanagement measures are
‘‘
disastrousenough,
’’
the remainder of this responsewill address how NMFS and theCouncil considered the issue of takingshort-term fishery impacts into accountalong with other relevantconsiderations, and how the 60 percentreduction recommended by The ThreeOrganizations fits within Federaldisaster determinations, which theysuggest is appropriate and within theagency
′
s considerations under therebuilding provisions of the Magnuson-Stevens Act.The two authorities that the Secretaryof Commerce (Secretary) can use fordeclaring fisheries-related disasters arethe Interjurisdictional FisheriesManagement Act (IJA) and Section312(a) of the Magnuson-Stevens Act.Neither the IJA nor the Magnuson-Stevens Act specifies a requirement thata negative economic impact of at least60 percent, as suggested by The ThreeOrganizations, is needed to trigger adisaster declaration by the Secretary.(We note that The Three Organizationsacknowledge that the meaning of disaster in the context of Section 312(a)of the Magnuson-Stevens Act is distinctfrom
‘‘
disastrous economic impacts
’’
inthe context of the 9th Circuit decision.)In fact, there are no formal quantitativedefinitions of what is a sufficient levelof annual economic impact required fordeclaring a disaster under either Act.NMFS disagrees with The ThreeOrganizations
′
suggested rule of thumbof a 60 percent decline for a disasterdeclaration. Many of the disasters thatThe Three Organizations noted assupporting their 60
–
percent-declineassumption were declared on the basisof hurricanes and red tides, whichresulted in complete (100 percent)fisheries closures, biasing theircalculations of averages upward. Overthe years, the Secretary
′
s disasterdeclaration decisions have been madecase-by-case, based on specific factssurrounding the decline of the fishery inquestion, and on the requests fordisaster that are typically submitted bygovernors of affected states. Thedecisions and associated analyses differwith respect to the legal authoritiesunderlying the decision (IJA, Magnuson-Stevens Act, or both), the nature of thefishery (e.g., salmon, groundfish,shrimp, lobster, crab), the cause of thedisaster (hurricane, red tide, flooding,confluence of long term and short termenvironmental factors such as El Nino
’
sand droughts), duration (multi year,single year) and available information.Therefore, The Three Organizations
’
useof a simple average percentage impactobscures large differences betweenwidely varying disaster situations anddeclaration decisions.A review of past disaster declarationdecisions shows that the Secretary looksat not only percentage declines ineconomic activities from various short-and long-term benchmarks, but also atabsolute levels of impact and otherfactors as well. Typically, the Secretarywill have before him therecommendations of the governors of affected states and any supportinganalyses provided by the Governors, a biological assessment that shows the
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