Senate Commerce Committee Issues Report on Fishery Failures: Urgently Needed Disaster Declarations Act

WASHINGTON, Dec. 20 -- The Senate Commerce, Science and Transportation Committee issued a report (S.Rpt. 116-293) on the Motor Carrier Safety Grant Relief Act (S. 2346), which aims to improve the Fishery Resource Disaster Relief program of the National Marine Fisheries Service. The report was advanced by Sen. Roger Wicker, R-Mississippi, on Nov. 16.

Excerpts of the report follow (with changes to the law omitted, and available at https://www.congress.gov/congressional-report/116th-congress/senate-report/293/1?s=1&r=10)

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Purpose of the Bill

The purpose of S. 2346, the Fishery Failures: Urgently Needed Disaster Declarations Act, is to clarify and expedite the disaster declaration process, establish certain deadlines for the National Oceanic and Atmospheric Administration (NOAA), reduce delays, and clarify eligibility for assistance to ensure that charter, recreational, and Tribal fishers have access to disaster funds. Additionally, the bill would provide employment opportunities for fishery employees displaced by a fishery disaster by prioritizing their hiring to undertake restoration, conservation, and other fishery rebuilding activities funded by disaster relief funds.

Background and Needs

The productivity and profitability of marine fisheries varies significantly due to natural and anthropogenic causes, such as oceanic conditions, climate, pollution, and weather events. There are also unavoidable fluctuations in wild caught fisheries which can create financial challenges for fishermen.

For example, there are cyclical variations in some fish stocks, changes in fish stocks due to extreme conditions, stock declines due to overfishing, and changes in the ability of a fisherman to access a particular fishery. Cyclical variation in fish stocks can be very predictable. For example, certain fish stocks, such as anchovies and sardines, have large variations based on ocean currents./1/ Extreme weather conditions can also cause population changes. For example, anadromous fish/2/ can be very sensitive to drought. Harmful algal blooms (HABs), such as red tide, can cause large and sudden fish kills or make fish unsafe to eat./3/

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/1/NOAA Fisheries, "Climate Variability & Marine Fisheries," Sep.

18, 2019 (https://www.pfeg.noaa.gov/research/climatemarine/cmffish/cmffishery.html).

/2/Anadromous fish are born in fresh water, spend their lives in the sea, and return to fresh water to spawn.

/3/Woods Hole Oceanographic Institution, "Fish Kills," May 9, 2018 (https://www.whoi.edu/website/redtide/impacts/wildlife/fish-kills/).

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Fishermen can also experience a lack of access to fisheries, even if the stock is healthy. This most often occurs when natural disasters, such as hurricanes or tsunamis, destroy habitat, fishing infrastructure or boats. Fishery disasters occur when fishermen endure economic hardships resulting from fish population declines or other disruptions to the fishery.

FISHERY DISASTERS

Fishery disaster assistance is administered by NOAA's National Marine Fisheries Service (NMFS) within the Department of Commerce. A combination of two pieces of legislation, the Magnuson-Stevens Fishery Conservation and Management Act/4/ and the Interjurisdictional Fisheries Act (IJFA)/5/ provide the authority and requirements for fishery disaster assistance.

NOAA uses one policy document to provide guidance and clarity for these two overlapping statutes./6/ Under both statutes, a request for a fishery disaster determination is initiated by the Governor of a State, by a fishing community, such as an Indian Tribe, or directly by the Secretary of Commerce. The Secretary determines whether the circumstances are consistent with relevant statutes and whether it warrants a fishery disaster determination. The Secretary of Commerce has used a disaster declaration by the Federal Emergency Management Agency (FEMA) to expedite declaring a fishery disaster. For example, after Hurricanes Harvey, Maria, Irma, and Sandy, and the Deepwater Horizon Oil Spill, the Secretary declared fishery disasters within days of the request.

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/4/Public Law 109-479.

/5/Public Law 99-659.

/6/NOAA Fisheries, "National Marine Fisheries Service Policy 01122," May 8, 2007 (https://www.fisheries.noaa.gov/webdam/download/64692768) (accessed Mar. 27, 2020).

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Congress may appropriate resources for disaster assistance after the Secretary concludes that a fishery disaster has happened./7/ Such funds are overseen by the Secretary./8/ This funding is usually appropriated by Congress as needs arise, rather than in anticipation of future needs./9/ If no funds have been previously appropriated and remain available for fishery disaster assistance, there is often a time delay between the determination of a disaster and the passage of an appropriations bill containing funds for disaster relief.

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/7/NOAA Fisheries, "National Marine Fisheries Service Policy 01122," May 8, 2007 (https://www.fisheries.noaa.gov/webdam/download/64692768) (accessed Mar. 27, 2020).

/8/Ibid.

/9/Congressional Research Service, "Commercial Fishery Disaster Assistance," Jul. 29, 2010 (http://www.nationalaglawcenter.org/wpcontent/uploads/assets/crs/RL34209.pdf) (accessed Mar. 27, 2020).

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Funding can also be delayed by a lack of clear deadlines within the process, a lack of clarity about allowable uses, as well as the lengthy process of developing a spend plan and obtaining approval for the dispersal of funds from the Office of Management and Budget. Since 1994, fishery disaster declarations have been made a total of 87 times, totaling approximately $1.4 billion in Federal funding dollars. Within these 87 events, funds have been appropriated to the Gulf of Mexico, New England, South Atlantic, Mid-Atlantic, Caribbean, North Pacific, and Western Pacific regions. Fisheries with multiple commercial fishery failure determinations include: the West Coast salmon troll fishery; the Puget Sound sockeye salmon fishery; the Northeast multispecies fishery; Gulf of Mexico fisheries following hurricanes, floods, and HABs; New England shellfish fisheries; Alaska salmon fisheries; and the Bering Sea snow crab fishery./10/

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/10/NOAA Fisheries, "Fishery Disaster Determinations," Jan. 27, 2020 (https://www.fisheries.noaa.gov/national/funding-and-financialservices/fishery-disaster-determinations) (accessed Mar. 27, 2020).

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Historically, assistance has been provided to fishermen and fishing communities in the form of grants, job retraining, employment, and low interest loans. Disaster assistance has also included fishery data collection, resource restoration, research, and fishing capacity reduction programs to prevent or lessen the effects of future disruptions to fisheries.

Currently, funding under section 308(d) of the IJFA may be used to provide direct assistance to fishermen or to provide assistance indirectly through State agencies, local government, and nonprofit organizations for activities such as capacity reduction programs like fishing vessel buybacks, gear reduction, or fishing permit retirement. Funding may also be used for compensation, community grants, training, loans, debt refinancing, and employment on fishery-related projects./11/

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/11/Congressional Research Service, "Commercial Fishery Disaster Assistance," Jul. 29, 2010 (http://www.nationalaglawcenter.org/wpcontent/uploads/assets/crs/RL34209.pdf) (accessed Mar. 27, 2020).

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The current system of fishery disaster relief has raised concerns regarding the timing of relief to meet crucial needs, the relationship between disaster relief and long-term fisheries management, the definition of a fishery failure, and determination of the beneficiaries of relief./12/

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/12/Ibid.

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TIME DELAY BETWEEN DISASTER AND RELIEF

Delay in the distribution of financial relief is a major concern surrounding disaster assistance. Fishery disasters often occur suddenly and can have immediate socio-economic impacts to fishing communities. As such, many stakeholders believe there should be an avenue for receiving direct financial assistance soon after a disaster is declared. Alaska fishermen faced long delays for disaster relief from a failure in the run of pink salmon from 2016 due to a missed June 1, 2019, sign off deadline./13/ In 2011, the Mississippi River reached flood stage and caused $60 million in economic losses to the Mississippi oyster industry./14/ However, NOAA delayed an announcement that this event would receive fishery disaster declaration funding until 2014. The State of Washington declared multiple fishery disasters from 2014-2016 including coho salmon, Dungeness crab, and sockeye salmon./15/ Washington did not receive funding until 2019 for these disasters. The expanse of time between fishery disaster determinations and funding authorization creates the risk of jeopardizing maritime industries.

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/13/Laine Welch, "Alaska Fishermen Still Waiting For 2016 Disaster Relief Funds." National Fisherman, Jun. 11, 2019 (https://www.nationalfisherman.com/alaska/alaska-fishermen-stillwaiting-for-2016-disaster-relief-funds/) (accessed Mar. 27, 2020).

/14/Adrian Sainz, "Mississippi River Flood of 2011 Caused $2.8B in Economic Damage: Army Corps," Insurance Journal, Feb. 27, 2013 (https://www.insurancejournal.com/news/national/2013/02/27/282875.htm) (accessed Mar. 27, 2020).

/15/Christine Blank, "Washington's Senators Call for Salmon, Crab Fishing Seasons To Be Declared `Disasters'," Seafood Source, Dec. 6, 2016 (https://www.seafoodsource.com/news/supply-trade/washington-ssenators-call-for-salmon-crab-fishing-seasons-to-be-declared-disasters) (accessed Mar. 27, 2020).

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CONSEQUENCES OF FLOODING AND DROUGHT

The rate of freshwater outflow from rivers and streams can have enormous impacts to fisheries. Fisheries can be harmed by extremes in salinity when there is too much or too little fresh water. From 2010 to 2013, the Apalachicola Chattahoochee-Flint River Basin was frequently classified by the National Integrated Drought Information System as in an exceptional drought. The resulting high salinity levels were correlated to unprecedented declines in oyster landings,/16/ followed by a fishery disaster declaration in 2013./17/ Salmon, which spawn in freshwater rivers and streams, are particularly vulnerable to drought, and several drought-related fishery disasters have been declared on the West Coast./18/ More recently, historic high flooding in the Midwest caused every site on the Mississippi river to record a top-five crest and led to FEMA disaster declarations in multiple Midwestern States./19/ Floodwaters from the Mississippi River Basin flowed downstream, where the Army Corps of Engineers opened the gates of the Bonnet Carre spillway twice in the same year for the first time since the spillway was constructed in 1928./20/ The freshwater influx into the Mississippi Sound resulted in the deaths of up to 100 percent of oysters in several areas./21/

In addition to deadly changes in salinity, increased flooding can bring with it an influx of nutrients and bacteria, leading to HABs. HABs release biotoxins that can harm people, fish, shellfish, marine mammals and birds./22/ For example, excess nutrient runoff from the opening of the Bonnet Carre Spillway has caused a HAB event in Lake Pontchartrain, which drains into the Gulf of Mexico.

Overall, HABs account for the loss of $34 million a year in commercial fisheries. After HABs die and decompose, the decomposition process uses up the available oxygen in the water, leading to the formation of a hypoxic "dead zone."/23/ Dead zones have been known to occur across the United States, including in the Gulf of Mexico, Puget Sound, Great Lakes, Chesapeake Bay, and Long Island Sound.

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/16/Florida Sea Grant, "Apalachicola Bay Oyster Situation Report," Apr. 24, 2013 (http://www.flseagrant.org/wp-content/uploads/tp200--apalachicola_oyster_situation_report.pdf) (accessed Mar. 27, 2020).

/17/NOAA Fisheries, "Fishery Disaster Determinations," May 22, 2019 (https://www.fisheries.noaa.gov/national/funding-and-financialservices/fishery-disaster-determinations) (accessed Mar. 27, 2020).

/18/Ibid.

/19/FEMA, "Disaster Declarations by Year," 2019 (https://www.fema.gov/disasters/year/2019?field_dv2_declaration_type_value=All) (accessed Mar. 27, 2020).

/20/U.S. Army Corps of Engineers, "Bonnet Carre Spillway Overview" (https://www.mvn.usace.army.mil/Missions/Mississippi-RiverFlood-Control/Bonnet-Carre-Spillway-

Overview/Spillway-Operation-Information/) (accessed Mar. 27, 2020).

/21/University of Southern Mississippi, "2019 Bonnet Carre Spillway Monitoring Update," Jun. 21, 2019 (https://gcrl.usm.edu/bonny.carre.spillway/2019%20Bonnet%20Carre%20Spillway% 20Overview%20-%20June%2021%202019%20-%20Final%20Version%20v2.pdf) (accessed Mar. 27, 2020).

/22/NOAA Fisheries, "Joining Forces to Understand the Impacts of Harmful Algal Blooms on Aquaculture," press release, Sep. 29, 2017 (https://www.nefsc.noaa.gov/press_release/pr2017/features/harmful-algal-blooms-aquaculture/) (accessed Mar. 27, 2020).

/23/Centers for Disease Control and Prevention, "Harmful Algal Bloom (HAB)-Associated Illness," Dec. 14, 2017 (https://www.cdc.gov/habs/illness-symptoms-freshwater.html) (accessed Mar. 27, 2020).

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Climate variability and change impact the ocean in many ways, from extreme events to winds to temperatures and other ocean parameters that directly and indirectly impact fish stocks./24/ This variability also can have dramatic impacts on fisheries,/25/ as evidenced by the impact of the warm water "blob" that occurred off the West Coast between 2015 and 2016 and decimated salmon stocks./26/ Sustainable fisheries management necessitates an understanding of how climate, environment, fishing, and other factors impact fish stocks, and thus fisheries and the communities that rely on fishing./27/ Marine fisheries are vulnerable to changes in climate, which influence the occurrence of events such as flooding and HABs/28/ that have caused federally declared fishery disasters./29/

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/24/Ibid.

/25/Coastal and Ocean Climate Applications (COCA) Fisheries and Climate Program (https://cpo.noaa.gov/Meet-the-Divisions/Climate-andSocietal-Interactions/COCA/Climate-Fisheries).

/26/Elizabeth A. Daly, Richard D. Brodeur, and Toby D. Auth, "Anomalous Ocean Conditions in 2015: Impacts on Spring Chinook Salmon And Their Prey Field," Marine Ecology Progress Series 566 (2017): 169182.

/27/Coastal and Ocean Climate Applications (COCA) Fisheries and Climate Program (https://cpo.noaa.gov/Meet-the-Divisions/Climate-andSocietal-Interactions/COCA/Climate-Fisheries).

/28/The Food and Agriculture Organization of the United Nations, "Impacts of Climate Change on Fisheries and Aquaculture," 2018 (http://www.fao.org/3/i9705en/i9705en.pdf).

/29/NOAA Fisheries, "Fishery Disaster Determinations," Jan. 27, 2020 (https://www.fisheries.noaa.gov/national/funding-and-financialservices/fishery-disaster-determinations).

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Summary of Provisions

S. 2346, the Fishery Failures: Urgently Needed Disaster Declarations Act, would do the following:

Clarify redundancies in fishery resource disaster legislation.

Provide a more efficient process for requesters seeking disaster assistance when the fishery disaster is a result of a Federal response to a natural disaster.

Expedite disaster review process by requiring NOAA to notify requesters of positive fishery disaster declarations sooner.

Provide opportunities for employment for fishery employees displaced by a fishery disaster by prioritizing hiring to undertake restoration, conservation, and other fishery rebuilding activities funded by disaster relief funds.

Make information available to requesters to clarify fishery disaster request process.

Clarify the eligibility of charter, recreational, and Tribal fishermen to have access to disaster funds.

Legislative History

S. 2346 was introduced on July 30, 2019, by Senator Wicker and was referred to the Committee on Commerce, Science, and Transportation of the Senate. Senators Cantwell, Sullivan, Murkowski, and Cassidy later became cosponsors. On November 13, 2019, the Committee met in open Executive Session and, by voice vote, ordered S. 2346 reported favorably with an amendment (in the nature of a substitute).

On September 25, 2019, the Committee held a hearing entitled "Fishery Failures: Improving the Disaster Declaration and Relief Process," in which witnesses made suggestions for improvements to the fishery disaster relief process.

Estimated Costs

In accordance with paragraph 11(a) of rule XXVI of the Standing Rules of the Senate and section 403 of the Congressional Budget Act of 1974, the Committee provides the following cost estimate, prepared by the Congressional Budget Office:

Under current law, the National Oceanic and Atmospheric Administration (NOAA) may provide financial assistance to commercial fisheries that experience economic hardship because of natural or manmade disasters. S. 2346 would explicitly define terms that are used to determine if a fishery is eligible for assistance. The bill also would require NOAA to adhere to a faster application review process and to fulfill additional reporting requirements. Finally, S. 2346 would require the Government Accountability Office to report to the Congress on efforts by the Regional Fishery Management Councils, the Atlantic States Marine Fisheries Commission, and the National Marine Fisheries Service to prepare and adapt to climate change.

Using information from NOAA, CBO expects that implementing S. 2346 would not substantially change the way the program is administered under current law. However, to review applications more quickly, CBO estimates that NOAA would need three additional employees each year at an average cost of $160,000 per employee. In total, CBO expects that implementing the bill's requirements would cost $3 million over the 2020-2025 period; any spending would be subject to the availability of appropriated funds.

The CBO staff contact for this estimate is David Hughes.

The estimate was reviewed by H. Samuel Papenfuss, Deputy Director of Budget Analysis.

Regulatory Impact Statement

In accordance with paragraph 11(b) of rule XXVI of the Standing Rules of the Senate, the Committee provides the following evaluation of the regulatory impact of the legislation, as reported:

Number of persons covered

S. 2346, as reported, would not create any new programs or impose any new regulatory requirements, and therefore would not subject any individuals or businesses to new regulations.

Economic impact

S. 2346, as reported, is not expected to have a negative impact on the Nation's economy. It is likely to have a net positive benefit by expediting the recovery of fisheries communities from unexpected disasters.

Privacy

The reported bill would have no impact on the personal privacy of individuals. Additional paperwork requirements for industries would be covered under section 402(b) of the Magnuson Stevens Act, which protects proprietary information.

Paperwork

S. 2346, as reported, would require additional revenue data from communities that collect a fish tax and from fish processors if they are seeking fishery disaster funds. The additional paperwork burden on these groups would be offset by the benefit of Federal recovery funding in the event of a fishery disaster declaration.

Congressionally Directed Spending

In compliance with paragraph 4(b) of rule XLIV of the Standing Rules of the Senate, the Committee provides that no provisions contained in the bill, as reported, meet the definition of congressionally directed spending items under the rule.

Section-by-Section Analysis

Section 1. Short title

This section would provide that the bill may be cited as the "Fishery Failures: Urgently Needed Disaster Declarations Act".

Section 2. Fishery resource disaster relief

This section would define several terms used throughout the legislation. These terms include "allowable cause", "anthropogenic cause", "fishery resource disaster", "Indian Tribe", "Tribal", "natural cause", "12-month revenue loss", and "undetermined cause".

This section also would give the Secretary of Commerce authority to determine the existence, extent, and beginning and end dates of a fishery disaster. After a disaster is determined, the Secretary would make funds available to be used by State or regional groups for assessment of impacts of the disaster as well as other activities that help to support fishing activity, such as restoration and prevention of future disasters.

This section also would describe the fishery disaster review process. The initiation of a fishery disaster review would occur after the appropriate representative submits a request, within 1 year of the potential fishery disaster. This section would define the required fishery and disaster information for a request, which would include the affected stock, geographical boundaries, cause of disaster, and information that supports a disaster claim. This section would allow the Secretary to assist the requester in providing required data.

The review of a fishery disaster would begin with an interim response provided by the Secretary within 20 days of receipt acknowledging the request and requesting additional information if necessary. This section would assign a 120-day timeline for the Secretary to evaluate a request, unless the fishing season is not over, in which case the Secretary would complete evaluation after the close of the fishery season. This section would require the Secretary to use the best fishery science and sociocultural and economic information available to evaluate the disaster.

This section would define the criteria for the Secretary to determine a fishery resource disaster, including revenue loss thresholds, ineligible fisheries, and exceptional circumstances. Fisheries subject to overfishing would not be eligible for disaster assistance unless overfishing did not contribute to the disaster. In the case of obvious substantial economic impacts to a fishery which has also been subject to a disaster declaration under another statutory authority (e.g., a natural disaster or a fishery disaster resulting from a Federal action in response to a natural disaster), revenue loss analysis would not be required. This section would direct the Secretary to allocate funds for fishery resource disasters.

This section would list criteria the Secretary shall consider when determining allocation of appropriations and the methods by which funds may be appropriated. This section also would direct the requester to submit a spend plan within 120 days after receiving a notification affirming a fishery disaster. In the case where a fishery disaster is declared but funds have not been appropriated, the requester would still be required to submit a spend plan 120 days after notification of a positive disaster determination. Direct assistance would be allowed on the spend plan. The Secretary would provide allocation of funds within 90 days.

This section would list the eligible uses of fishery disaster relief funds, including habitat restoration and conservation, efforts to improve management of the affected fishery, repair or improvement of fishery-related public infrastructure, job training, public information campaigns, and other purposes to restore or prevent future disasters to the fishery. This section would prioritize hiring fishery employees displaced by the fishery disaster to undertake these tasks.

This section also would restrict the use of funds for administrative costs. No financial assistance would be used to fund fishery reduction programs under this section. This section would direct NOAA to make information on data collection procedures and best practices for submitting fishery disaster requests. This section would authorize appropriated funds for fishery disasters.

This section would include a savings clause to allow requesters already experiencing the fishery disaster process to complete the process prior to the implementation of a new process.

Section 3. Magnuson-Stevens Fishery Conservation and Management Act This section would repeal section 315, the Regional Coastal Disaster Assistance, Transition, and Recovery Program, of the Magnuson-Stevens Fishery Conservation and Management Act. This section would also modify the annual report required for the Klamath River coho salmon to include the most recent National Research Council recommendations regarding Klamath River Basin salmon stocks, and make the reporting requirement biennial.

Section 4. Interjurisdictional Fisheries Act of 1986 This section would repeal section 308 of the Interjurisdictional Fisheries Act of 1986. It would include a technical conforming edit to the Small Business Act.

Section 5. Budget requests; reports

This section would require the Secretary to submit a list of and amount requested for outstanding fishery disaster requests with the annual budget request. It would reduce the frequency of certain reports. It would require a report on climate change and the impact on fisheries from the Government Accountability Office.

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