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H.R. 5548: Fishery Failures: Urgently Needed Disaster Declarations Act


The text of the bill below is as of Jan 7, 2020 (Introduced).


I

116th CONGRESS

2d Session

H. R. 5548

IN THE HOUSE OF REPRESENTATIVES

January 7, 2020

(for himself, Mr. Palazzo, Mr. Kilmer, and Ms. Herrera Beutler) introduced the following bill; which was referred to the Committee on Natural Resources, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To improve the Fishery Resource Disaster Relief program of the National Marine Fisheries Service, and for other purposes.

1.

Short title

This Act may be cited as the Fishery Failures: Urgently Needed Disaster Declarations Act.

2.

Fishery resource disaster relief

Section 312(a) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1861a(a)) is amended to read as follows:

(a)

Fishery resource disaster relief

(1)

Definitions

In this subsection:

(A)

Allowable cause

The term allowable cause means a natural cause, discrete anthropogenic cause, or undetermined cause.

(B)

Anthropogenic cause

The term anthropogenic cause means an anthropogenic event, such as an oil spill or spillway opening—

(i)

that could not have been addressed or prevented by fishery management measures; and

(ii)

that is otherwise beyond the control of fishery managers to mitigate through conservation and management measures, including regulatory restrictions imposed as a result of judicial action or to protect human health or marine animals, plants, or habitats.

(C)

Fishery resource disaster

The term fishery resource disaster means a disaster that is determined by the Secretary in accordance with this subsection and—

(i)

is an unexpected decrease in fish stock biomass or other change that results in significant loss of access to the fishery resource, which may include loss of fishing vessels and gear for a substantial period of time and results in significant revenue or subsistence loss due to an allowable cause; and

(ii)

does not include—

(I)

reasonably predictable, foreseeable, and recurrent fishery cyclical variations in species distribution or stock abundance; or

(II)

reductions in fishing opportunities resulting from conservation and management measures taken pursuant to this Act.

(D)

Indian tribe

The term Indian Tribe has the meaning given such term in section 102 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5130), and the term Tribal means of or pertaining to such an Indian tribe.

(E)

Natural cause

The term natural cause

(i)

means a weather, climatic, hazard, or biology-related event, such as—

(I)

a hurricane;

(II)

a flood;

(III)

a harmful algal bloom;

(IV)

a tsunami;

(V)

a hypoxic zone;

(VI)

a drought;

(VII)

El Niño effects on water temperature;

(VIII)

a marine heat wave; or

(IX)

disease; and

(ii)

does not mean a normal or cyclical variation in a species distribution or stock abundance.

(F)

12-month revenue loss

The term 12-month revenue loss means the percentage reduction in commercial, charter, headboat, and processor revenue for the 12 months during the fishery resource disaster period that is due to the fishery resource disaster, when compared to average annual revenue in the most recent 5-year period or equivalent for stocks with cyclical life histories.

(G)

Undetermined cause

The term undetermined cause means a cause in which the current state of knowledge does not allow the Secretary to identify the exact cause, and there is no current conclusive evidence supporting a possible cause of the fishery resource disaster.

(2)

General authority

(A)

In general

The Secretary shall have the authority to determine the existence, extent, and beginning and end dates of a fishery resource disaster under this subsection in accordance with this subsection.

(B)

Availability of funds

After the Secretary determines that a fishery resource disaster has occurred, the Secretary is authorized to make sums available, from funds appropriated under paragraph (9) and from any supplemental appropriations that are available, to be used by the affected State, Tribal government, or interstate marine fisheries commission, or by the Secretary in cooperation with the affected State, Tribal government, or interstate marine fisheries commission.

(C)

Savings clause

The requirements under this subsection shall take effect only with respect to requests for a fishery resource disaster determination submitted after the date of enactment of the Fishery Failures: Urgently Needed Disaster Declarations Act.

(3)

Initiation of a fishery resource disaster review

(A)

Eligible requesters

Not later than 1 year after the date of the conclusion of the fishing season, a request for a fishery resource disaster determination may be submitted to the Secretary, if the Secretary has not independently determined that a fishery resource disaster has occurred, by—

(i)

the Governor of an affected State;

(ii)

an official Tribal resolution; or

(iii)

any other comparable elected or politically appointed representative as determined by the Secretary.

(B)

Required information

A complete request for a fishery resource disaster determination under subparagraph (A) shall include—

(i)

identification of all presumed affected fish stocks;

(ii)

identification of the fishery as Federal, non-Federal, or both;

(iii)

the geographical boundaries of the fishery;

(iv)

preliminary information on causes of the fishery resource disaster, if known; and

(v)

information needed to support a finding of a fishery resource disaster, including—

(I)

information demonstrating the occurrence of an unexpected decrease in fish stock biomass or other change that results in significant loss of access to the fishery resource, which could include the loss of fishing vessels and gear, for a substantial period of time;

(II)

12-month revenue loss or subsistence loss for the affected Federal fishery, or if a fishery resource disaster has occurred at any time in the previous 5-year period, an appropriate time frame as determined by the Secretary;

(III)

if applicable, information on lost resource tax revenues assessed by local communities, such as a raw fish tax; and

(IV)

if applicable, information on 12-month revenue loss for processors related to the information provided under subclause (I), subject to section 402(b).

(C)

Assistance

The Secretary may provide assistance, data, and analysis to an eligible requester described in paragraph (1), if so requested and the data is not available to the requester, in carrying out the compete request under subparagraph (A).

(4)

Review process

(A)

Interim response

Not later than 20 days after receipt of a request under paragraph (3), the Secretary shall provide an interim response to the individual that—

(i)

acknowledges receipt of the request;

(ii)

provides a regional contact within the National Oceanographic and Atmospheric Administration;

(iii)

outlines the process and timeline by which a request shall be considered; and

(iv)

requests additional information concerning the fishery resource disaster, if the original request is considered incomplete.

(B)

Evaluation of requests

(i)

In general

The Secretary shall complete a review, within the time frame described in clause (ii), using the best scientific information available, in consultation with the affected fishing communities, States, or Tribes, of—

(I)

the information provided by the requester and any additional information relevant to the fishery, which may include—

(aa)

fishery characteristics;

(bb)

stock assessments;

(cc)

the most recent fishery independent surveys and other fishery resource assessments and surveys conducted by Federal, State, or Tribal officials;

(dd)

estimates of mortality; and

(ee)

overall effects; and

(II)

the available economic information, which may include an analysis of—

(aa)

landings data;

(bb)

revenue;

(cc)

the number of participants involved;

(dd)

the number and type of jobs and persons impacted, which may include—

(AA)

fishers;

(BB)

charter fishing operators;

(CC)

subsistence users;

(DD)

United States fish processors; and

(EE)

an owner of a related fishery infrastructure or business affected by the disaster, such as a marina operator, recreational fishing equipment retailer, or charter, headboat, or tender vessel owner, operator, or crew;

(ee)

an impacted Indian Tribe;

(ff)

an impacted business or other entity;

(gg)

the availability of hazard insurance to address financial losses due to a disaster;

(hh)

other forms of disaster assistance made available to the fishery, including prior awards of disaster assistance for the same event;

(ii)

the length of time the resource, or access to the resource, has been restricted;

(jj)

status of recovery from previous fishery resource disasters;

(kk)

lost resource tax revenues assessed by local communities, such as a raw fish tax; and

(ll)

other appropriate indicators to an affected fishery, as determined by the National Marine Fisheries Service.

(ii)

Time frame

The Secretary shall complete the review described in clause (i), if the fishing season, applicable to the fishery—

(I)

has concluded or there is no defined fishing season applicable to the fishery, not later than 120 days after the Secretary receives a complete request for a fishery resource disaster determination;

(II)

has not concluded, not later than 120 days after the conclusion of the fishing season; or

(III)

has not been opened, not later than 120 days after the Secretary receives a complete request for a fishery resource disaster determination.

(C)

Fishery resource disaster determination

The Secretary shall make the determination of a fishery resource disaster based on the criteria for determinations listed in paragraph (5).

(D)

Notification

Not later than 14 days after the conclusion of the review under this paragraph, the Secretary shall notify the requestor and the Governor of the affected State or Tribal representative of the determination of the Secretary.

(5)

Criteria for determinations

(A)

In general

The Secretary shall make a determination about whether a fishery resource disaster has occurred, based on the revenue loss thresholds under subparagraph (B), and, if a fishery resource disaster has occurred, whether the fishery resource disaster was due to—

(i)

a natural cause;

(ii)

an anthropogenic cause;

(iii)

a combination of a natural cause and an anthropogenic cause; or

(iv)

an undetermined cause.

(B)

Revenue loss thresholds

(i)

In general

The Secretary shall apply the following 12-month revenue loss thresholds in determining whether a fishery resource disaster has occurred:

(I)

Losses greater than 80 percent shall result in a positive determination that a fishery resource disaster has occurred.

(II)

Losses between 35 percent and 80 percent shall be evaluated to determine whether a fishery resource disaster has occurred, based on the information provided or analyzed under paragraph (4)(B).

(III)

Losses less than 35 percent shall not be eligible for a determination that a fishery resource disaster has occurred, except where the Secretary determines there are extenuating circumstances that justify using a lower threshold in making the determination.

(ii)

Charter fishing

ln making a determination of whether a fishery resource disaster has occurred, the Secretary shall consider the economic impacts to the charter fishing industry to ensure financial coverage for charter fishing businesses.

(iii)

Subsistence uses

In making a determination of whether a fishery resource disaster has occurred, the Secretary may consider loss of subsistence opportunity, where appropriate.

(C)

Exceptional circumstances

In an exceptional circumstance where substantial economic impacts to the affected fishery and fishing community have been subject to a disaster declaration under another statutory authority, such as in the case of a natural disaster or from the direct consequences of a Federal action taken to prevent, or in response to, a natural disaster for purposes of protecting life and safety, the Secretary may determine a fishery resource disaster has occurred without a request or without conducting the required analyses in subparagraphs (A) and (B).

(6)

Disbursal of Appropriated funds

(A)

Authorization

The Secretary shall allocate funds available under paragraph (9) for fishery resource disasters.

(B)

Allocation of Appropriated fishery resource disaster assistance

(i)

Notification of funding availability

When there are appropriated funds for 1 or more fishery resource disasters, the Secretary shall notify the public and representatives of affected fishing communities with a positive disaster determination that is unfunded of the allocation under paragraph (2)(B) not more than 14 days after the date of the appropriation or the determination of a fishery resource disaster, whichever occurs later.

(ii)

Extension of deadline

The Secretary may extend the deadline under clause (i) by 90 days to evaluate and make determinations on eligible requests.

(C)

Considerations

In determining the allocation of appropriations for a fishery resource disaster, the Secretary shall consider commercial, charter, headboat, or seafood processing revenue losses and may consider the following factors:

(i)

Direct economic impacts.

(ii)

Uninsured losses.

(iii)

Losses of subsistence and Tribal ceremonial fishing opportunity.

(iv)

Losses of recreational fishing opportunity.

(v)

Aquaculture operations revenue loss.

(vi)

Direct revenue losses to a fishing community.

(vii)

Treaty obligations.

(viii)

Other economic impacts.

(D)

Spend plans

To receive an allocation from funds available under paragraph (9), a requestor with an affirmative fishery resource disaster determination shall submit a spend plan to the Secretary, not more than 120 days after receiving notification that funds are available, that shall include the following information, if applicable:

(i)

Objectives and outcomes, with an emphasis on addressing the factors contributing to the fishery resource disaster and minimizing future uninsured losses, if applicable.

(ii)

Statement of work.

(iii)

Budget details.

(E)

Regional contact

The Secretary shall provide a regional contact within the National Oceanic and Atmospheric Administration to facilitate review of spend plans and disbursal of funds.

(F)

Disbursal of funds

(i)

Availability

Funds shall be disbursed not later than 90 days after the date the Secretary receives a complete spend plan under subparagraph (D).

(ii)

Method

The Secretary may provide an allocation of funds under this subsection in the form of a grant, direct payment, cooperative agreement, loan, or contract.

(iii)

Eligible uses

(I)

In general

Funds allocated for fishery resources disasters under this subsection shall prioritize the following uses, which are not in order of priority:

(aa)

Habitat conservation and restoration and other activities, including scientific research, that reduce adverse impacts to the fishery or improve understanding of the affected species or its ecosystem.

(bb)

The collection of fishery information and other activities that improve management of the affected fishery.

(cc)

In a commercial fishery, capacity reduction and other activities that improve management of fishing effort, including funds to offset budgetary costs to refinance a Federal fishing capacity reduction loan or to repay the principal of a Federal fishing capacity reduction loan.

(dd)

Developing, repairing, or improving fishery-related public infrastructure.

(ee)

Job training and economic transition programs.

(ff)

Public information campaigns on the recovery of the fishery, including marketing.

(gg)

For any purpose that the Secretary determines is appropriate to restore the fishery affected by such a disaster or to prevent a similar disaster in the future.

(hh)

Direct assistance to a person, fishing community (including assistance for lost fisheries resource levies), or a business to alleviate economic loss incurred as a direct result of a fishery resource disaster, particularly when affected by a circumstance described in paragraph (5)(D).

(ii)

Appropriate economic and other incentives to encourage commercial fisherman to return to the fishery once it has recovered from the disaster.

(jj)

Hatcheries and stock enhancement to help rebuild the affected stock or offset fishing pressure on the affected stock.

(kk)

Other activities that recover or improve management of the affected fishery, as determined by the Secretary.

(II)

Displaced fishery employees

Where appropriate, individuals carrying out the activities described in items (aa) through (ff) of subclause (I) shall be individuals who are, or were, employed in a commercial, charter, or Tribal fishery for which the Secretary has determined that a fishery resource disaster has occurred.

(7)

Limitations

(A)

Federal share

(i)

In general

Except as applied to Tribes and as provided in clauses (ii) and (iii), the Federal share of the cost of any activity carried out under the authority of this subsection shall not exceed 75 percent of the cost of that activity.

(ii)

Waiver

The Secretary may waive the non-Federal share requirements of this subsection, if the Secretary determines that—

(I)

no reasonable means are available through which the recipient of the Federal share can meet the non-Federal share requirement; and

(II)

the probable benefit of 100 percent Federal financing outweighs the public interest in imposition of the non-Federal share requirement.

(iii)

Exception

The Federal share of direct assistance as described in paragraph (6)(F)(iii)(I)(hh) shall be equal to 100 percent.

(B)

Limitations on administrative expenses

(i)

Federal

Not more than 3 percent of the funds available under this subsection may be used for administrative expenses by the National Oceanographic and Atmospheric Administration.

(ii)

State or tribal governments

Of the funds remaining after the use described in clause (i), not more than 5 percent may be used by States, Tribal governments, or interstate marine fisheries commissions for administrative expenses.

(C)

Fishing capacity reduction program

(i)

In general

No funds available under this subsection may be used as part of a fishing capacity reduction program in a fishery unless the Secretary determines that adequate conservation and management measures are in place in such fishery.

(ii)

Assistance conditions

As a condition of providing assistance under this subsection with respect to a vessel under a fishing capacity reduction program, the Secretary shall—

(I)

prohibit the vessel from being used for fishing; and

(II)

require that the vessel be—

(aa)

scrapped or otherwise disposed of in a manner approved by the Secretary;

(bb)

donated to a nonprofit organization and thereafter used only for purposes of research, education, or training; or

(cc)

used for another non-fishing purpose provided the Secretary determines that adequate measures are in place to ensure that the vessel cannot reenter any fishery anywhere in the world.

(D)

No fishery endorsement

(i)

In general

A vessel that is prohibited from fishing under subparagraph (C)(ii)(I) shall not be eligible for a fishery endorsement under section 12113(a) of title 46, United States Code.

(ii)

Noneffective

A fishery endorsement for a vessel described in clause (i) shall not be effective.

(iii)

No sale

A vessel described in clause (i) shall not be sold to a foreign owner or reflagged.

(8)

Public information on data collection

The Secretary shall make available and update as appropriate, information on data collection and submittal best practices for the information described in paragraph (4)(B).

(9)

Authorization of appropriations

(A)

Authorization

There are authorized to be appropriated to carry out this subsection such sums as may be necessary.

(B)

Availability of funds

Amounts appropriated under this subsection shall remain available until expended.

(C)

Tax exempt status

The Fisheries Disasters Fund appropriated under this subsection shall be a tax exempt fund.

(D)

Supplemental Appropriations

The Secretary may use any supplemental appropriations that are available to carry out this subsection.

.

3.

Magnuson-Stevens Fishery Conservation and Management Act

(a)

Repeal

Section 315 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1864) is repealed.

(b)

Report

Section 113(b)(2) of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (16 U.S.C. 460ss note) is amended—

(1)

in the paragraph heading, by striking Annual report and inserting Report;

(2)

in the matter preceding subparagraph (A), by striking Not later than 2 years after the date of enactment of this Act, and annually thereafter and inserting Not later than 2 years after the date of enactment of the Fishery Failures: Urgently Needed Disaster Declarations Act, and biennially thereafter; and

(3)

in subparagraph (D), by striking the calendar year 2003 and inserting the most recent.

4.

Interjurisdictional Fisheries Act of 1986

(a)

Repeal

Section 308 of the Interjurisdictional Fisheries Act of 1986 (16. U.S.C. 4107) is repealed.

(b)

Technical edit

Section 3(k)(1) of the Small Business Act (15 U.S.C. 632(k)(1)) is amended by striking (as determined by the Secretary of Commerce under section 308(b) of the Interjurisdictional Fisheries Act of 1986) and inserting (as determined by the Secretary of Commerce under the Fishery Failures: Urgently Needed Disaster Declarations Act).

5.

Budget requests; reports

(a)

Budget request

In the budget justification materials submitted to Congress in support of the budget of the Department of Commerce for each fiscal year (as submitted with the budget of the President under section 1105(a) of title 31, United States Code), the Secretary of Commerce shall include a separate statement of the amount requested to be appropriated for that fiscal year for outstanding unfunded fishery resource disasters.

(b)

Driftnet act amendments of 1990 report and bycatch reduction agreements

(1)

In general

The Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.) is amended—

(A)

in section 202(h), by striking paragraph (3); and

(B)

in section 206—

(i)

by striking subsections (e) and (f); and

(ii)

by redesignating subsections (g) and (h) as subsections (e) and (f), respectively.

(2)

Biennial report on international compliance

Section 607 of the High Seas Driftnet Fishing Moratorium Protection Act (16 U.S.C. 1826h) is amended—

(A)

by inserting (a) In general.—The Secretary and indenting appropriately; and

(B)

by adding at the end the following:

(b)

Additional information

In addition to the information described in paragraphs (1) through (5) of subsection (a), the report shall include—

(1)

a description of the actions taken to carry out the provisions of section 206 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1826), including—

(A)

an evaluation of the progress of those efforts, the impacts on living marine resources, including available observer data, and specific plans for further action;

(B)

a list and description of any new fisheries developed by nations that conduct, or authorize their nationals to conduct, large-scale driftnet fishing beyond the exclusive economic zone of any nation; and

(C)

a list of the nations that conduct, or authorize their nationals to conduct, large-scale driftnet fishing beyond the exclusive economic zone of any nation in a manner that diminishes the effectiveness of or is inconsistent with any international agreement governing large-scale driftnet fishing to which the United States is a party or otherwise subscribes; and

(2)

a description of the actions taken to carry out the provisions of section 202(h) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1822(h)).

(c)

Certification

If, at any time, the Secretary, in consultation with the Secretary of State and the Secretary of the department in which the Coast Guard is operating, identifies any nation that warrants inclusion in the list described under subsection (b)(1)(C), due to large scale drift net fishing, the Secretary shall certify that fact to the President. Such certification shall be deemed to be a certification for the purposes of section 8(a) of the Fishermen’s Protective Act of 1967 (22 U.S.C. 1978(a)).

.

6.

Report on efforts to prepare and adapt united states fishery management for the impacts of climate change

(a)

In general

Not later than 1 year after the date of enactment of this Act, the Comptroller General of the United States shall submit a report to Congress examining efforts by the Regional Fishery Management Councils, the Atlantic States Marine Fisheries Commission, and the National Marine Fisheries Service to prepare and adapt to the impacts of climate change.

(b)

Contents of study

The report required under subsection (a) shall include—

(1)

an examination of current or previous efforts, and whether those efforts have resulted in changes to management, by the Regional Fishery Management Councils, the Atlantic States Marine Fisheries Commission, and the National Marine Fisheries Service to prepare and adapt Federal and jointly managed fisheries for the impacts of climate change;

(2)

an examination of any guidance issued to the Regional Fishery Management Councils by the National Marine Fisheries Service to prepare and adapt Federal fishery management for the impacts of climate change and whether and how that guidance has been utilized;

(3)

identification of and recommendations for how best to address the most significant economic, social, ecological, or other knowledge gaps, as well as key funding gaps, that would increase the ability of the Regional Fishery Management Councils, the Atlantic States Marine Fisheries Commission, or the National Marine Fisheries Service to prepare and adapt fishery management for the impacts of climate change;

(4)

recommendations for how the Regional Fishery Management Councils, the Atlantic States Marine Fisheries Commission, and the National Marine Fisheries Service can better adapt fishery management and prepare associated fishing industries and dependent communities for the impacts of climate change; and

(5)

recommendations for how to enhance the capacity of the National Marine Fisheries Service to monitor climate-related changes to fisheries and marine ecosystems, to understand the mechanisms of change, to evaluate risks and priorities, to provide forecasts and projections of future conditions, to communicate scientific advice, and to better manage fisheries under changing conditions due to climate change.