In this subsection:
The term "allowable cause" means a natural cause, discrete anthropogenic cause, or undetermined cause, including a cause that occurred not more than 5 years prior to the date of a request for a fishery resource disaster determination that affected such applicable fishery.
The term "anthropogenic cause" means an anthropogenic event, such as an oil spill or spillway opening-
The term "fishery resource disaster" means a disaster that is determined by the Secretary in accordance with this subsection and-
The term "Indian Tribe" has the meaning given such term in section 5130 of title 25, and the term "Tribal" means of or pertaining to such an Indian tribe.
The term "natural cause"-
The term "12-month revenue loss" means the percentage reduction, as applicable, in commercial, charter, headboat, or processor revenue for the affected fishery for the 12 months during which the fishery resource disaster occurred, when compared to average annual revenue in the most recent 5 years when no fishery resource disaster occurred or equivalent for stocks with cyclical life histories.
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.
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.
After the Secretary determines that a fishery resource disaster has occurred, the Secretary is authorized to make sums available, from funds appropriated for such purposes, to be used by the affected State, Indian Tribe, or interstate marine fisheries commission, or by the Secretary in cooperation with the affected State, Indian Tribe, or interstate marine fisheries commission.
The requirements under this paragraph and paragraphs (3), (4), and (5) shall take effect only with respect to fishery resource disaster determination requests submitted after December 29, 2022.
If 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-
The applicable date under this clause shall be-
A complete request for a fishery resource disaster determination under subparagraph (A) shall include-
The Secretary may provide data and analysis assistance to an eligible requester described in paragraph (1), if-
The Secretary shall have the discretion to initiate a fishery resource disaster review without a request.
Not later than 20 days after receipt of a request under paragraph (3), the Secretary shall provide an interim response to the individual that-
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 Indian Tribes, of-
The Secretary shall complete the review described in clause (i), if the fishing season, applicable to the fishery-
The Secretary shall make the determination of a fishery resource disaster based on the criteria for determinations listed in paragraph (5).
Not later than 14 days after the conclusion of the review under this paragraph, the Secretary shall notify the requester and the Governor of the affected State or Indian Tribe representative of the determination of the Secretary.
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-
Based 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:
In 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.
In considering negative subsistence impacts, the Secretary shall evaluate the severity of negative impacts to the fishing community instead of applying the revenue loss thresholds described in clause (i).
A fishery subject to overfishing in any of the 3 years preceding the date of a determination under this subsection is not eligible for a determination of whether a fishery resource disaster has occurred unless the Secretary determines that overfishing was not a contributing factor to the fishery resource disaster.
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, notwithstanding the requirements under subparagraph (B) and paragraph (3).
The Secretary shall allocate funds available under paragraph (9) for fishery resource disasters.
When there are appropriated funds for 1 or more fishery resource disasters, the Secretary shall notify-
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.
The Secretary may extend the deadline under clause (i) by 90 days to evaluate and make determinations on eligible requests.
In 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:
To 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:
If so requested, the Secretary shall provide a regional contact within the National Oceanic and Atmospheric Administration to facilitate review of spend plans and disbursal of funds.
Funds shall be made available to grantees not later than 90 days after the date the Secretary receives a complete spend plan.
The Secretary may provide an allocation of funds under this subsection in the form of a grant, direct payment, cooperative agreement, loan, or contract.
Funds 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:
Where appropriate, individuals carrying out the activities described in items (aa) through (dd) of subclause (I) shall be individuals who are, or were, employed in a commercial, charter, or Indian Tribe fishery for which the Secretary has determined that a fishery resource disaster has occurred.
Except 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.
The Secretary may waive the non-Federal share requirements of this subsection, if the Secretary determines that-
The Federal share shall be equal to 100 percent in the case of-
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.
Of the funds remaining after the use described in clause (i), not more than 5 percent may be used by States, Indian Tribes, or interstate marine fisheries commissions for administrative expenses.
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.
As a condition of providing assistance under this subsection with respect to a vessel under a fishing capacity reduction program, the Secretary shall-
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.
A fishery endorsement for a vessel described in clause (i) shall not be effective.
A vessel described in clause (i) shall not be sold to a foreign owner or reflagged.
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).
There are authorized to be appropriated to carry out this subsection $377,000,000 for the period of fiscal years 2023 through 2027.
The Secretary shall propose and adopt framework regulations applicable to the implementation of all programs under this section.
The Secretary shall implement each program under this section by promulgating regulations that, together with the framework regulations, establish each program and control its implementation.
The 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-
The Secretary shall contract with each person participating in a program, and each such contract shall, in addition to including such other matters as the Secretary deems necessary and appropriate to effectively implement each program (including penalties for contract non-performance) be consistent with the framework and implementing regulations and all other applicable law.
Each program not involving fair market assessment shall involve a reduction auction that scores the reduction price of each bid offer by the data relevant to each bidder under an appropriate fisheries productivity factor. If the Secretary accepts bids, the Secretary shall accept responsive bids in the rank order of their bid scores, starting with the bid whose reduction price is the lowest percentage of the productivity factor, and successively accepting each additional responsive bid in rank order until either there are no more responsive bids or acceptance of the next bid would cause the total value of bids accepted to exceed the amount of funds available for the program.
Each program shall proceed by the Secretary issuing invitations to bid setting out the terms and conditions for participation consistent with the framework and implementing regulations. Each bid that the Secretary receives in response to the invitation to bid shall constitute an irrevocable offer from the bidder.
1So in original. Probably should be capitalized.
16 U.S.C. § 1861a
EDITORIAL NOTES
REFERENCES IN TEXTThis chapter, referred to in subsec. (a)(1)(C)(ii)(II), was in the original "this Act", meaning Pub. L. 94-265, Apr. 13, 1976, 90 Stat. 331, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.
CODIFICATIONIn subsecs. (b)(1)(C), (c)(1)(C), (2), and (d)(2), "section 53735 of title 46" substituted for "section 1111 of title XI of the Merchant Marine Act, 1936" on authority of Pub. L. 109-304, §18(c), Oct. 6, 2006, 120 Stat. 1709, which Act enacted section 53735 of Title 46, Shipping.
PRIOR PROVISIONSA prior section 312 of Pub. L. 94-265, title III, Apr. 13, 1976, 90 Stat. 359, was set out as an Effective Date note under section 1857 of this title, prior to being amended generally by Pub. L. 104-297.
AMENDMENTS2022-Subsec. (a). Pub. L. 117-328 amended subsec. (a) generally. Prior to amendment, subsec. (a) related to fisheries disaster relief. 2007-Subsec. (a)(1)(B). Pub. L. 109-479, §112(a)(1), substituted "measures, including regulatory restrictions (including those imposed as a result of judicial action) imposed to protect human health or the marine environment;" for "measures;".Subsec. (a)(4). Pub. L. 109-479, §112(a)(2), substituted "2007 through 2013." for "1996, 1997, 1998, and 1999."Subsec. (b)(1). Pub. L. 109-479, §112(a)(3), in introductory provisions, substituted "the Governor of a State for fisheries under State authority, or a majority of permit holders in the fishery, may conduct a voluntary fishing" for "or the Governor of a State for fisheries under State authority, may conduct a fishing". Subsec. (b)(1)(B)(i). Pub. L. 109-479, §112(a)(4), inserted "practicable" after "entrants,".Subsec. (b)(1)(C). Pub. L. 109-479, §112(a)(5), substituted "cost-effective and, in the instance of a program involving an industry fee system, prospectively" for "cost-effective and". Subsec. (b)(2)(A). Pub. L. 109-479, §112(a)(6), added subpar. (A) and struck out former subpar. (A) which read as follows: "the owner of a fishing vessel, if such vessel is (i) scrapped, or (ii) through the Secretary of the department in which the Coast Guard is operating, subjected to title restrictions that permanently prohibit and effectively prevent its use in fishing, and if the permit authorizing the participation of the vessel in the fishery is surrendered for permanent revocation and the owner relinquishes any claim associated with the vessel and permit that could qualify such owner for any present or future limited access system permit in the fishery for which the program is established; or".Subsec. (b)(4). Pub. L. 109-479, §112(a)(7), substituted "The harvester proponents of each program and the Secretary shall consult, as appropriate and practicable, with Councils," for "The Secretary shall consult, as appropriate, with Councils,". Subsec. (b)(5), (6). Pub. L. 109-479, §112(a)(8), added pars. (5) and (6).Subsec. (d)(1)(A). Pub. L. 109-479, §112(a)(9), (10), in introductory provisions, substituted "Secretary" for "Secretary, at the request of the appropriate Council," before "may conduct" and "Secretary" for "Secretary, in consultation with the Council," before "shall-". Subsec. (d)(1)(B). Pub. L. 109-479, §112(a)(11), substituted "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." for "a two-thirds majority of the participants voting."Subsec. (d)(2)(C). Pub. L. 109-479, §112(a)(12), substituted "establish, unless the Secretary determines that such fees should be collected from the seller;" for "establish;".Subsec. (e). Pub. L. 109-479, §112(a)(13), added subsec. (e) and struck out former subsec. (e) which related to implementation plan.
STATUTORY NOTES AND RELATED SUBSIDIARIES
EFFECTIVE DATE Pub. L. 109-479, title I, §112(b), Jan. 12, 2007, 120 Stat. 3601, provided that: "Sections 116, 203, 204, 205, and 206 of the Sustainable Fisheries Act [Pub. L. 104-297 see Tables for classification] are deemed to have added sections 312, 402, 403, 404, and 405 [16 U.S.C. 1861a, 1881a to 1881d], respectively to the Act [Pub. L. 94-265] as of the date of enactment of the Sustainable Fisheries Act [Oct. 11, 1996]."
BUDGET REQUEST FOR DEPARTMENT OF COMMERCE Pub. L. 117-328, div. S, title II, §205(a), Dec. 29, 2022, 136 Stat. 5270, provided that: "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 for each outstanding unfunded fishery resource disasters."
STUDY OF FEDERAL INVESTMENT IN FISHERIES Pub. L. 104-297, title I, §116(b), Oct. 11, 1996, 110 Stat. 3603, as amended by Pub. L. 104-208, div. A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009-41, required the Secretary of Commerce to establish a task force comprised of interested parties to study and report to Congress within 2 years of Oct. 11, 1996, on the role of the Federal Government in subsidizing the expansion and contraction of fishing capacity in fishing fleets managed under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.) and otherwise influencing the aggregate capital investments in fisheries.
- Council
- The term "Council" means any Regional Fishery Management Council established under section 1852 of this title.
- Marine Fisheries Commission
- The term "Marine Fisheries Commission" means the Atlantic States Marine Fisheries Commission, the Gulf States Marine Fisheries Commission, or the Pacific States Marine Fisheries Commission.
- Secretary
- The term "Secretary" means the Secretary of Commerce or his designee.
- State
- The term "State" means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, and any other Commonwealth, territory, or possession of the United States.
- United States fish processors
- The term "United States fish processors" means facilities located within the United States for, and vessels of the United States used or equipped for, the processing of fish for commercial use or consumption.
- charter fishing
- The term "charter fishing" means fishing from a vessel carrying a passenger for hire (as defined in section 2101(30) of title 46) who is engaged in recreational fishing.
- conservation and management
- The term "conservation and management" refers 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; and (B) which are designed to assure that-(i) a supply of food and other products may be taken, and that recreational benefits may be obtained, on a continuing basis;(ii) irreversible or long-term adverse effects on fishery resources and the marine environment are avoided; and(iii) there will be a multiplicity of options available with respect to future uses of these resources.
- fish
- The term "fish" means finfish, mollusks, crustaceans, and all other forms of marine animal and plant life other than marine mammals and birds.
- fishery resource
- The term "fishery resource" means any fishery, any stock of fish, any species of fish, and any habitat of fish.
- fishery
- The term "fishery" means-(A) 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 geographical, scientific, technical, recreational, and economic characteristics; and(B) any fishing for such stocks.
- fishing community
- The term "fishing community" means a community which is substantially dependent on or substantially engaged in the harvest or processing of fishery resources to meet social and economic needs, and includes fishing vessel owners, operators, and crew and United States fish processors that are based in such community.
- fishing vessel
- The term "fishing vessel" means any vessel, boat, ship, or other craft which is used for, equipped to be used for, or of a type which is normally used for-(A) fishing; or(B) aiding or assisting one or more vessels at sea in the performance of any activity relating to fishing, including, but not limited to, preparation, supply, storage, refrigeration, transportation, or processing.
- fishing
- The term "fishing" means-(A) the catching, taking, or harvesting of fish;(B) the attempted catching, taking, or harvesting of fish;(C) any other activity which can reasonably be expected to result in the catching, taking, or harvesting of fish; or(D) any operations at sea in support of, or in preparation for, any activity described in subparagraphs (A) through (C).Such term does not include any scientific research activity which is conducted by a scientific research vessel.
- high seas
- The term "high seas" means all waters beyond the territorial sea of the United States and beyond any foreign nation's territorial sea, to the extent that such sea is recognized by the United States.
- limited access system
- The term "limited access system" means a system that limits participation in a fishery to those satisfying certain eligibility criteria or requirements contained in a fishery management plan or associated regulation.
- person
- The term "person" means any individual (whether or not a citizen or national of the United States), any corporation, partnership, association, or other entity (whether or not organized or existing under the laws of any State), and any Federal, State, local, or foreign government or any entity of any such government.
- recreational fishing
- The term "recreational fishing" means fishing for sport or pleasure.
- treaty
- The term "treaty" means any international fishery agreement which is a treaty within the meaning of section 2 of article II of the Constitution.
- waters of a foreign nation
- The term "waters of a foreign nation" means any part of the territorial sea or exclusive economic zone (or the equivalent) of a foreign nation, to the extent such territorial sea or exclusive economic zone is recognized by the United States.1 See Codification note below.
- overfishing
- The terms "overfishing" and "overfished" mean a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis.