16 USC 1861 - Transition to sustainable fisheries

View all text of Subchapter IV [§ 1851 - § 1870]

§ 1861a. Transition to sustainable fisheries

(a) Fishery resource disaster relief

(1) DefinitionsIn this subsection:

(A) Allowable cause

(B) Anthropogenic causeThe 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 disasterThe term “fishery resource disaster” means a disaster that is determined by the Secretary in accordance with this subsection and—

(i) is an unexpected large 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 loss or negative subsistence impact 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 chapter.

(D) Indian Tribe

(E) Natural causeThe 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

(G) Undetermined cause

(2) General authority

(A) In general

(B) Availability of funds

(3) Initiation of a fishery resource disaster review

(A) Eligible requesters

(i) In generalIf the Secretary has not independently determined that a fishery resource disaster has occurred, a request for a fishery resource disaster determination may be submitted to the Secretary at any time, but not later than the applicable date determined under clause (ii), by—(I) the Governor of an affected State;(II) an official resolution of an Indian Tribe; or(III) any other comparable elected or politically appointed representative as determined by the Secretary.

(ii) Applicable dateThe applicable date under this clause shall be—(I) 1 year after the date of the conclusion of the fishing season;(II) in the case of a distinct cause that occurs during more than 1 consecutive fishing season, 2 years after the date of the conclusion of the fishing season for which the request for a fishery resource disaster determination is made; or(III) in the case of a complete fishery closure, 1 year after the date on which that closure is determined by the Secretary.

(B) Required informationA 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, as determined by the eligible requester, including geographic boundaries that are smaller than the area represented by the eligible requester;

(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 large 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) significant—(aa) 12-month revenue loss for the affected fishery; or(bb) negative subsistence impact for the affected fishery, or if a fishery resource disaster has occurred at any time in the previous 5-year period, the most recent 5 years when no fishery resource disaster occurred;(III) if applicable, information on lost resource tax revenues assessed by local communities, such as a raw fish tax and local sourcing requirements; and(IV) if applicable and available, information on affected fishery 12-month revenue loss for charter, headboat, or processors related to the information provided under subclause (I), subject to section 1881a(b) of this title.

(C) AssistanceThe Secretary may provide data and analysis assistance to an eligible requester described in paragraph (1), if—

(i) the assistance is so requested;

(ii) the Secretary is in possession of the required information described in subparagraph (B); and

(iii) the data is not available to the requester, in carrying out the complete request under subparagraph (B).

(D) Initiation of review

(4) Review process

(A) Interim responseNot 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 generalThe 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 Indian 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) other forms of disaster assistance made available to the fishery, including prior awards of disaster assistance for the same event;(gg) the length of time the resource, or access to the resource, has been restricted;(hh) status of recovery from previous fishery resource disasters;(ii) lost resource tax revenues assessed by local communities, such as a raw fish tax; and(jj) other appropriate indicators to an affected fishery, as determined by the National Marine Fisheries Service.

(ii) Time frameThe 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) is expected to be closed for the entire fishing season, not later than 120 days after the Secretary receives a complete request for a fishery resource disaster determination.

(D) Notification

(5) Criteria for determinations

(A) In generalThe 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 generalBased on the information provided or analyzed under paragraph (4)(B), 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 may result in a positive determination that a fishery resource disaster has occurred, based on the information provided or analyzed under paragraph (4)(B).(II) Losses between 35 percent and 80 percent shall be evaluated to determine whether economic impacts are severe enough to determine that a fishery resource disaster has occurred.(III) Losses less than 35 percent shall not be eligible for a determination that a fishery resource disaster has occurred.

(ii) Charter fishing

(iii) Negative subsistence impacts

(D) Exceptional circumstances

(6) Disbursal of appropriated funds

(A) Authorization

(B) Allocation of appropriated fishery resource disaster assistance

(i) Notification of funding availabilityWhen there are appropriated funds for 1 or more fishery resource disasters, the Secretary shall notify—(I) the public; and(II) representatives of affected fishing communities with a positive disaster determination that is unfunded;

of the availability of funds, 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

(C) ConsiderationsIn determining the allocation of appropriations for a fishery resource disaster, the Secretary shall consider commercial, charter, headboat, or seafood processing revenue losses and negative impacts to subsistence or Indian Tribe ceremonial fishing opportunity, for the affected fishery, and may consider the following factors:

(i) Direct economic impacts.

(ii) Uninsured losses.

(iii) Losses of recreational fishing opportunity.

(iv) Aquaculture operations revenue loss.

(v) Direct revenue losses to a fishing community.

(vi) Treaty obligations.

(vii) Other economic impacts.

(D) Spend plansTo receive an allocation from funds available under paragraph (9), a requester 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

(F) Disbursal of funds

(i) Availability

(ii) Method

(iii) Eligible uses(I) In generalFunds allocated for fishery resources disasters under this subsection shall restore the fishery affected by such a disaster, prevent a similar disaster in the future, or assist the affected fishing community, and 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) 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) or by negative impacts to subsistence or Indian Tribe ceremonial fishing opportunity.(ff) Hatcheries and stock enhancement to help rebuild the affected stock or offset fishing pressure on the affected stock.(II) Displaced fishery employees

(7) Limitations

(A) Federal share

(i) In general

(ii) WaiverThe 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) ExceptionThe Federal share shall be equal to 100 percent in the case of—(I) direct assistance as described in paragraph (6)(F)(iii)(I)(ee); or(II) assistance to subsistence or Tribal fisheries.

(B) Limitations on administrative expenses

(i) Federal

(ii) State governments or Indian Tribes

(i) In general

(ii) Assistance conditionsAs 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 in Federal, State, or international waters; 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

(ii) Noneffective

(iii) No sale

(8) Public information on data collection

(9) Authorization of appropriations

(b) Fishing capacity reduction program

(1) The Secretary, at the request of the appropriate Council for fisheries under the authority of such Council, the Governor of a State for fisheries under State authority, or a majority of permit holders in the fishery, may conduct a voluntary fishing capacity reduction program (referred to in this section as the “program”) in a fishery if the Secretary determines that the program—

(A) is necessary to prevent or end overfishing, rebuild stocks of fish, or achieve measurable and significant improvements in the conservation and management of the fishery;

(B) is consistent with the Federal or State fishery management plan or program in effect for such fishery, as appropriate, and that the fishery management plan—

(i) will prevent the replacement of fishing capacity removed by the program through a moratorium on new entrants, practicable restrictions on vessel upgrades, and other effort control measures, taking into account the full potential fishing capacity of the fleet; and

(ii) establishes a specified or target total allowable catch or other measures that trigger closure of the fishery or adjustments to reduce catch; and

(C) is cost-effective and, in the instance of a program involving an industry fee system, prospectively capable of repaying any debt obligation incurred under section 53735 of title 46.

(2) The objective of the program shall be to obtain the maximum sustained reduction in fishing capacity at the least cost and in a minimum period of time. To achieve that objective, the Secretary is authorized to pay—

(A) the owner of a fishing vessel, if the permit authorizing the participation of the vessel in the fishery is surrendered for permanent revocation and the vessel owner and permit holder relinquish any claim associated with the vessel or permit that could qualify such owner or holder for any present or future limited access system permit in the fishery for which the program is established or in any other fishery and such vessel is (i) scrapped, or (ii) through the Secretary of the department in which the Coast Guard is operating, subjected to title restrictions (including loss of the vessel’s fisheries endorsement) that permanently prohibit and effectively prevent its use in fishing in federal 1

1 So in original. Probably should be capitalized.

or state 1 waters, or fishing on the high seas or in the waters of a foreign nation; or

(B) the holder of a permit authorizing participation in the fishery, if such permit is surrendered for permanent revocation, and such holder relinquishes any claim associated with the permit and vessel used to harvest fishery resources under the permit that could qualify such holder for any present or future limited access system permit in the fishery for which the program was established.

(3) Participation in the program shall be voluntary, but the Secretary shall ensure compliance by all who do participate.

(4) The harvester proponents of each program and the Secretary shall consult, as appropriate and practicable, with Councils, Federal agencies, State and regional authorities, affected fishing communities, participants in the fishery, conservation organizations, and other interested parties throughout the development and implementation of any program under this section.

(5)Payment condition.—The Secretary may not make a payment under paragraph (2) with respect to a vessel that will not be scrapped unless the Secretary certifies that the vessel will not be used for fishing in the waters of a foreign nation or fishing on the high seas.

(6)Report.—

(A)In general.—Subject to the availability of funds, the Secretary shall, within 12 months after January 12, 2007, submit to the Congress a report—

(i) identifying and describing the 20 fisheries in United States waters with the most severe examples of excess harvesting capacity in the fisheries, based on value of each fishery and the amount of excess harvesting capacity as determined by the Secretary;

(ii) recommending measures for reducing such excess harvesting capacity, including the retirement of any latent fishing permits that could contribute to further excess harvesting capacity in those fisheries; and

(iii) potential sources of funding for such measures.

(B)Basis for recommendations.—The Secretary shall base the recommendations made with respect to a fishery on—

(i) the most cost effective means of achieving voluntary reduction in capacity for the fishery using the potential for industry financing; and

(ii) including measures to prevent the capacity that is being removed from the fishery from moving to other fisheries in the United States, in the waters of a foreign nation, or on the high seas.

(1) The program may be funded by any combination of amounts—

(A) available under clause (iv) of section 713c–3(b)(1)(A) of title 15;

(B) appropriated for the purposes of this section;

(C) provided by an industry fee system established under subsection (d) and in accordance with section 53735 of title 46; or

(D) provided from any State or other public sources or private or non-profit organizations.

(2) All funds for the program, including any fees established under subsection (d), shall be paid into the fishing capacity reduction fund established under section 53735 of title 46.

(d) Industry fee system

(1)

(A) If an industry fee system is necessary to fund the program, the Secretary may conduct a referendum on such system. Prior to the referendum, the Secretary shall—

(i) identify, to the extent practicable, and notify all permit or vessel owners who would be affected by the program; and

(ii) make available to such owners information about the industry fee system describing the schedule, procedures, and eligibility requirements for the referendum, the proposed program, and the amount and duration and any other terms and conditions of the proposed fee system.

(B) The industry fee system shall be considered approved if the referendum votes which are cast in favor of the proposed system constitute at least a majority of the permit holders in the fishery, or 50 percent of the permitted allocation of the fishery, who participated in the fishery.

(2) Notwithstanding section 1854(d) of this title and consistent with an approved industry fee system, the Secretary is authorized to establish such a system to fund the program and repay debt obligations incurred pursuant to section 53735 of title 46. The fees for a program established under this section shall—

(A) be determined by the Secretary and adjusted from time to time as the Secretary considers necessary to ensure the availability of sufficient funds to repay such debt obligations;

(B) not exceed 5 percent of the ex-vessel value of all fish harvested from the fishery for which the program is established;

(C) be deducted by the first ex-vessel fish purchaser from the proceeds otherwise payable to the seller and accounted for and forwarded by such fish purchasers to the Secretary in such manner as the Secretary may establish, unless the Secretary determines that such fees should be collected from the seller; and

(D) be in effect only until such time as the debt obligation has been fully paid.

(e) Implementation plan

(1) Framework regulations

(2) Program regulations

(3) Harvester proponents’ implementation planThe Secretary may not propose implementation regulations for a program to be paid for by an industry fee system until the harvester proponents of the program provide to the Secretary a proposed implementation plan that, among other matters—

(A) proposes the types and numbers of vessels or permits that are eligible to participate in the program and the manner in which the program shall proceed, taking into account—

(i) the requirements of this section;

(ii) the requirements of the framework regulations;

(iii) the characteristics of the fishery and affected fishing communities;

(iv) the requirements of the applicable fishery management plan and any amendment that such plan may require to support the proposed program;

(v) the general needs and desires of harvesters in the fishery;

(vi) the need to minimize program costs; and

(vii) other matters, including the manner in which such proponents propose to fund the program to ensure its cost effectiveness, as well as any relevant factors demonstrating the potential for, or necessary to obtain, the support and general cooperation of a substantial number of affected harvesters in the fishery (or portion of the fishery) for which the program is intended; and

(B) proposes procedures for program participation (such as submission of owner bids under an auction system or fair market-value assessment), including any terms and conditions for participation, that the harvester proponents deem to be reasonably necessary to meet the program’s proposed objectives.

(4) Participation contracts

(5) Reduction auctions

(6) Bid invitations

(Pub. L. 94–265, title III, § 312, as added Pub. L. 104–297, title I, § 116(a), Oct. 11, 1996, 110 Stat. 3600; amended Pub. L. 109–479, title I, § 112(a), Jan. 12, 2007, 120 Stat. 3598; Pub. L. 117–328, div. S, title II, § 202, Dec. 29, 2022, 136 Stat. 5261.)