Policy on Disaster Assistance under Magnusen-Stevens Act 312(A) and 315 and Interjurisdictional Fisheries Act 308(B) and 308 (D)

Department of Commerce · National Oceanic & Atmospheric Administration · National Marine Fisheries Service

NATIONAL MARINE FISHERIES SERVICE POLICY 01-122

Effective on: May 8, 2007

To be reviewed on: October 1, 2023

Fisheries Management

Policy on Disaster Assistance under Magnuson-Stevens Act 312(A) and 315 and

Interjurisdictional Fisheries Act 308(B) and 308(D)

NOTICE: This publication is available at: https://www.fisheries.noaa.gov/national/laws-

and-policies/policy-directive-system

Author name: Kelly Denit Certified by: Jenni Wallace

Office: Sustainable Fisheries Office: Sustainable Fisheries

Type of Issuance: Update

SUMMARY OF REVISIONS:

Updated in December 2021 to change the responsibility for providing interim responses for

fishery disaster determination requests from the Secretary of Commerce to the NOAA Fisheries

Assistant Administrator. This update is administrative in nature and is part of the agency’s

broader effort to streamline the agency’s response to fishery disaster determination requests.

I. Introduction

Fisheries are an essential part of coastal economies. They provide jobs for fishermen, fish

processers, and related maritime support industries. Many coastal communities are

economically dependent on fisheries. Because fisheries depend on the productivity of the

environment, there are natural variations in the amount of fish caught each year, and in

the revenue generated by the fishery. However, fisheries are also subject to a number of

factors that can cause sudden and unexpected losses, leading to serious economic impact

for fishers and their communities. These factors include hurricanes and typhoons that can

destroy fishing grounds and fishing infrastructure, oil spills, harmful algal blooms, and

others, both natural and man-made, that cause a commercial fishery to incur harm or fail.

Fishery disaster assistance is administered by NOAA’s National Marine Fisheries Service

within the Department of Commerce. Two statutes, the Magnuson-Stevens Fishery

Conservation and Management Act and the Interjurisdictional Fisheries Act, provide the

authority and requirements for fishery disaster assistance. Under both statutes, a request

for a fishery disaster determination is generally made by the Governor of a State, or by a

fishing community, although the Secretary of Commerce may also initiate a review at his

or her own discretion. The Secretary determines whether the circumstances are consistent

with relevant statutes and warrant a fishery disaster determination. If the Secretary

determines that a fishery disaster has occurred, Congress may appropriate funds for

NMFS Policy 01-122, May 8, 2007

disaster assistance, which are administered by the Secretary.

The purpose of this document is to provide guidance for evaluating requests for

fisheries disaster relief under the provisions of Section 312(a) and 315 of the

Magnuson-Stevens Fishery Conservation and Management Act (MSA)

, as amended,

and Sections 308(b) and 308(d) of the Interjurisdictional Fisheries Act (IFA)

II. Background

The Secretary is authorized under both the MSA and IFA to provide fishery

disaster assistance. In general, fishery disaster requests are reviewed similarly

under both statutes, although there are some differences in what the two statutes

authorize. Under MSA Sections 312(a)

and 315

, the Secretary may provide

disaster assistance for assessing the economic and social effects of a commercial

fishery failure, for activities to restore the fishery or prevent a similar failure in the

future, and for assisting fishing communities. In order to receive assistance under

Section 315 of the MSA, a positive MSA 312(a) determination is needed. The more

detailed aspects of administering fisheries disaster relief under MSA 315 are not

addressed in this document. Under IFA Section 308(b)

, the Secretary may provide

disaster assistance to restore the fishery affected by the disaster. And, under IFA

Section 308(d)

, the Secretary may provide disaster assistance to persons and

16 U.S.C. § 1861.

16 U.S.C. § 4107.

MSA Section 312(a) states that the Secretary of Commerce, at his or her discretion, or upon request of a governor

or an official of a fishing community, “shall determine whether there is a commercial fishery failure due to a fishery

resource disaster.” Upon making such a determination, the Secretary is authorized to make funds available “for

assessing the economic and social effects of the commercial fishery failure, or any activity that the Secretary

determines is appropriate to restore the fishery or prevent a similar failure in the future and to assist a fishing

community affected by such failure.”

MSA Section 315 authorizes the Secretary to establish a regional economic transition program to provide disaster

relief assistance to fishermen, charter fishing operations, United States processors, and owners of related fishery

infrastructure affected by a “catastrophic regional fishery disaster,” as defined as “a natural disaster, including

hurricane or tsunami, or a regulatory closure (including regulatory closures resulting from judicial action) to protect

human health or the marine environment . . .”. Subject to the availability of appropriations, the regional economic

transition program must provide funds or other economic assistance for disbursement to affected entities in meeting

immediate regional shore side infrastructure needs, financial assistance and job training, fishing capacity reduction,

and other activities authorized under MSA 312(a) or IFA 308(d). The statute also allows waiver of non-Federal

matching requirements if the Secretary determines no reasonable means are available for applicants to meet the

matching requirement, and that the probable benefit of 100% Federal financing outweighs the public interest of

imposing a matching requirement.

IFA Section 308(b) authorizes the Secretary of Commerce to provide grants or cooperative agreements to states

determined to have been affected by a commercial fishery failure or serious disruption affecting future production

due to a fishery resource disaster arising from natural or undetermined causes. The Secretary may distribute these

funds after he or she has made a thorough evaluation of the scientific information submitted and has determined that

a commercial fishery failure due to a fishery resource disaster arising from natural or undetermined causes has

occurred. Funds may only be used to restore the resource affected by the disaster, and only by existing methods and

technology.

IFA Section 308(d) enables the Secretary to help persons engaged in commercial fisheries by initiating projects or

other measures to alleviate harm determined by the Secretary to have been incurred as a direct result of a fishery

resource disaster arising from a hurricane or other natural disaster. Eligibility for direct assistance to a person under

NMFS Policy 01-122, May 8, 2007

projects to alleviate harm incurred as a result of a fishery resource disaster. This

document outlines the process for making fishery disaster determinations under

both the MSA and IFA.

A. Overview

The entire fisheries disaster relief process – from request to disbursement of

appropriated funds – proceeds according to the following five general steps:

1. An eligible entity requests a fishery disaster determination from the

Secretary of Commerce.

2. The National Marine Fisheries Service conducts an evaluation to

determine whether a qualifying fishery disaster has occurred.

3. The Secretary makes a determination based upon the evaluation, and

notifies the requestor of the determination.

4. If the determination is positive, Congress may appropriate funds for

fishery disaster relief. The fishery may also qualify for other forms of Federal

assistance.

If Congress appropriates fishery disaster relief funds, NOAA works with the

affected parties to distribute the funds consistent with the statutory requirements

and conditions of the appropriation.

This document is focused on further explaining the process that the Secretary

follows under steps 2 and 3 above, specifically when evaluating a request and

making a determination for fishery disaster relief.

Three requirements, which are discussed in more detail in this document, must

be met in order for the Secretary to make a positive fishery disaster

determination:

1. There must be a fishery resource disaster as defined by the MSA or IFA;

this subsection shall be limited to any person that has less than $2,000,000 in net revenues annually from

commercial fishing, as determined by the Secretary.

NMFS Policy 01-122, May 8, 2007

2. The cause for the fishery resource disaster must be an allowable cause

under theMSA or IFA; and

There must be economic impact stemming from the fishery resource disaster that

supports a determination of a commercial fishery failure under MSA 312(a) and

IFA 308(b) or harm incurred under IFA 308(d).

B. Definitions

For purposes of this document:

Assistant Administrator means the NOAA Fisheries Assistant

Administrator.

Buyback means a payment to a permit holder that reflects the economic

value of a permit or vessel endorsement by paying the permit holder to

surrender his or her permit and/or cancel the fishery endorsement on the

vessel and/or scrap the vessel, thus providing long-term fishing capacity

reduction in a fishery.

Commercial Fishery means fishing in which the fish harvested, either in

whole or in part, are intended to enter commerce or enter commerce

through sale, barter, or trade, as defined in the MSA.

Commercial Fishery Failure means an occurrence when commerce in

or revenues from commerce in the fishery materially decreases or is

markedly weakened due to a fishery resource disaster, such that those

engaged in the fishery suffer severe economic hardship.

Fishery means 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 geographic, scientific, technical, recreational, and economic

characteristics; and any fishing for such stocks, as defined in the MSA.

Fishery Disaster means a general term that refers to a commercial fishery

failure, a catastrophic regional fishery disaster, significant harm incurred,

or a serious disruption affecting future production due to a fishery resource

disaster arising from natural or undetermined causes, consistent with MSA

and IFA.

Fishery Resource means, as defined in the MSA, any fishery, any stock of

fish, any species of fish, and any habitat of fish, and as defined in the IFA,

finfish, mollusks, crustaceans, and any other form of marine animal or

plant life, other than marine mammals and birds.

NMFS Policy 01-122, May 8, 2007

Fishery Resource Disaster means a sudden, unexpected, large decrease in

fish stock biomass or other change that results in significant loss of access

to the fishery resource, which could include loss of fishing vessels and

gear, for a substantial period of time.

Fishing Community means, as defined in the MSA, 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, crew and United States fish

processors that are based in such community. For purposes of section

312(a), this term specifically includes the area(s) and/or participants of the

fishery in which the effects of a commercial fishery failure are most highly

concentrated and most severely felt, including the actual commercial fish

harvesters and processors, both capital and labor.

Harm means an uninsured physical damage or economic loss to fishing

vessels, fishing gear, processing facilities, habitat, marketability or

infrastructure (i.e. port facilities for landing or unloading catch) suffered as

a direct result of a fishery resource disaster. Such harm will be measured in

economic terms.

Local Economy means the structure of life in a community based on the

production, distribution, and consumption of goods and services.

Man-Made Causes means a human event or activity (e.g., oil spill) that

could not

have been prevented or addressed by fishery management measures and

that are otherwise beyond the control of fishery managers to mitigate

through conservation and management measures, including regulatory

restrictions (including those imposed as a result of judicial action) imposed

to protect human health or the marine environment.

Natural Causes means a weather-, climate-, or biology-related event (e.g.,

hurricane, flood, drought, El Niño effects on water temperature, disease,

but does not include normal or cyclical variations in species distribution or

stock abundance, etc.).

Overfishing means a rate or level of fishing mortality that jeopardizes the

capacity of a fishery to produce the maximum sustainable yield on a

continuing basis.

Secretary means the Secretary of Commerce or his or her designee. The

NOAA Fisheries Assistant Administrator is delegated the responsibility for

leading the review.

NMFS Policy 01-122, May 8, 2007

Serious Disruption Affecting Future Production means an unexpected

sudden and precipitous decrease in the harvestable biomass or spawning

stock size of a fish stock that causes loss of access to the fishery for a

substantial period of time in a specific area.

Undetermined Causes means causes in which the current state of

knowledge does not allow the Secretary to identify the exact cause or

causes, and there is no current conclusive evidence supporting any one of

the possible causes of the

fishery disaster.

III. Initiating a Request for Fisheries Disaster Relief

A. Eligible Entities

Pursuant to the MSA and IFA, the Governor of an affected State, or an elected or

politically appointed representative of an affected fishing community (e.g., mayor,

official tribal representative, city manager, county executive, etc.) may submit a

request for fisheries disaster relief. The Secretary may also initiate a review at his or

her own discretion.

B. Interim Response

When an eligible entity requests fisheries disaster relief, the Assistant Administrator

will provide an interim response that acknowledges receipt of the request, provides a

regional contact, states that the Secretary will carefully consider the request and its

basis, and that the requesting party will be notified when a determination is made. If

the request does not provide sufficient information regarding the situation, the

Assistant Administrator may request additional information concerning the fishery

disaster.

IV. Evaluating a Request for a Fishery Disaster Determination

A. Fishery Resource Disaster Evaluation

Upon receipt of a request for a fishery disaster determination, the Secretary will

conduct a review of the best scientific information. Such review may include

an analysis of the following factors: fishery characteristics, stock assessment,

estimates of mortality, and overall effects in order to assess the existence of a

fishery resource disaster and the cause(s) of the disaster. The review should be

conducted in consultation with the affected State(s), and should consider such

information and supporting data as the State(s) provide.

Fishery resource disaster determinations are made on a case-by-case basis. For

NMFS Policy 01-122, May 8, 2007

example, damage to or loss of spawning habitat or refugia is a factor that the

National Marine Fisheries Service may consider in determining whether a

disaster occurred. A loss of 20 percent or more of spawning habitat or refugia

may be material to one fish stock but not to another. A reasonably predictable,

foreseeable, and recurrent fishery resource cycle of variations in species

distribution or stock abundance does not constitute a fishery resource disaster.

B. Allowable Causes

To provide disaster assistance under MSA 312(a) or IFA 308(b), the Secretary

must also determine the existence of a commercial fishery failure due to a fishery

resource disaster that arises from an allowable cause under MSA 312(a) or IFA

308(b) and (d).

Under MSA 312(a), the allowable causes for a fishery resource disaster are

natural causes; undetermined causes; or, man-made causes beyond the control

of fishery managers to mitigate through conservation and management

measures, including regulatory restrictions (including those imposed as a

result of judicial action) imposed to protect human health or the marine

environment. Regulatory or judicial actions do not constitute “man-made”

causes, except where imposed to protect human health or the marine

environment. Under IFA 308(b), the allowable causes for a fishery resource

disaster are natural or undetermined causes. Under IFA 308(d), the Secretary

must determine that harm was incurred as a direct result of a fishery resource

disaster arising from a hurricane or other natural disaster.

C. Consideration of Commercial Fishery Failure, Serious Disruption Affecting

Future Production, or Harm

In consultation with the affected State jurisdiction and/or fishing community,

the Assistant Administrator will conduct a review of the available socio-

cultural and economic information to determine the existence of a commercial

fishery failure, a serious disruption affecting future production, or harm

incurred. Such analysis may include information provided by fishery stock

assessments, landings data, and revenues. Indicators appropriate to an affected

fishery should be developed on a case-by-case basis, and may be the same as or

similar to those described in the scientific review.

Some characteristics of available information which may be considered in a

review may include:

• Fishery characteristics (size and value; number of participants;

environmental, economic and sociocultural behaviors; whether jobs are

NMFS Policy 01-122, May 8, 2007

full- or part-time; and landings data).

• Percent decline in landings, economic impact, revenues, or net revenues

by vessel category, port, etc. This should represent the proportion of the

affected fishery resource compared to the commercial fishery as a whole

(not just for the affected fisheryresource).

• Number of participants involved by vessel category, port, etc.

• Length of time the resource (or access to it) will be restricted.

• Documented decline in the resource.

1. Determination of a Commercial Fishery Failure

If the available economic information indicates that, because of a fishery resource

disaster, a significant number of those engaged in the commercial fishery have

suffered revenue declines that greatly affect or materially damage their businesses,

the commercial fishery will be deemed to have failed. Sub-units of a fishery or sub-

regions may be defined for the purpose of this evaluation. The following thresholds

are to be applied in making the determination, based on the loss of 12-month revenue

compared to average annual revenue in the most recent 5-year period:

• Revenue losses greater than 80% will result in a determination of a

commercial fishery failure.

• Revenue losses between 35%and 80% will be evaluated further (e.g., to

determine if economic impacts are severe).

• Revenue losses less than 35% will not be eligible for determination of a

commercial fishery failure, except where the Secretary determines there are

special and unique circumstances that may justify considering and using a

lower threshold in making the determination.

2. Determination of Serious Disruption Affecting Future Production

IFA 308 (B) also allows a determination of a serious disruption affecting future

production due to a fishery resource disaster arising from natural or undetermined

causes. If available scientific information indicates that there has been an unexpected

sudden and precipitous decrease in the harvestable biomass or spawning stock size of

a fish stock that causes a significant number of persons to lose access to the fishery

for a substantial period of time in a specific area, a serious disruption affecting future

production will be deemed to have occurred. The Secretary will consider, among

other things, most recent trawl surveys and other fishery resource surveys conducted

by the National Marine Fisheries Service and/or state officials, as well as most recent

stock assessments and other indicators of future production from the fishery.

NMFS Policy 01-122, May 8, 2007

The same percentage thresholds used to evaluate revenue losses for a commercial

fishery failure determination will be applied in making this determination, based on

estimated decrease in harvestable biomass or spawning stock size of the fish targeted

by the fishery (which is dependent on the fishery resource subject to a fishery

resource disaster) compared to the most recent 5-year period.

3. Determination of Harm

IFA 308(d) requires the determination of harm should be made if the fishermen have

uninsured losses suffered as a direct result of a fishery resource disaster. Proof of harm

incurred before any financial aid under 308(d) is distributed should be quantifiable and

objective. Such proof may include validated unreimbursed insurance claims, tax records,

or other validated evidence of economic harm. The same percentage thresholds used to

evaluate revenue losses for a commercial fishery failure determination will be applied in

making this determination.

D. Consideration of Overfishing

Overfishing is within the control of fishery managers to mitigate through conservation

and management measures and in general will not be an allowable cause for a fishery

resource disaster. How and whether overfishing is considered depends on the statute

under which the disaster assistance is requested. Under IFA 308(b) or 308(d), disaster

determinations are limited by statutory language to disasters resulting from hurricanes,

natural, or undetermined causes, and therefore overfishing cannot be the cause under the

IFA. Under MSA 312(a), the contribution of overfishing to a fishery resource disaster or

subsequent commercial fishery failure must be considered in the context of the governing

statutory requirements and other factors contributing to the disaster or fishery failure. The

remainder of this section discusses how overfishing will be considered under MSA

312(a). There is a presumption against a finding of a fishery resource disaster when

overfishing is occurring in a fishery. However, the fact that overfishing occurred or is

occurring does not preclude a determination that a fishery disaster occurred, if other

factors are more central to the disaster. Where overfishing is present, the presumption

against a finding of a fishery resource disaster can be overcome, at the Secretary’s

discretion, by meeting all of the criteria below, which reflect both statutory and policy

priorities and are designed to assure that the fishery achieves long term sustainability.

• There is a demonstrated strong willingness in the fishery to change

management to address the underlying causes of overfishing. The strongest

evidence would be final action by the Regional Fishery Management Council

(for Federal fisheries) or other appropriate management authority on a

significant new direction for fishery management such that fishing practices

contributing to overfishing are not allowed; and

• The requester submitted a specific plan for the use of disaster funds to address

the underlying causes of overfishing and improve future management. This

may include specific research proposals on improving the selectivity of

NMFS Policy 01-122, May 8, 2007

fishing practices, cooperative research efforts, and pilot management studies,

and

• The requester submitted a plan for ensuring that the disbursement of any

disaster funds made available to individuals/businesses will not exacerbate

overfishing now or in the future, or reward activities that contributed to

overfishing, but will be used to assist in maintaining a rationalized fishing

fleet during the transition period to more sustainable management.

V. Making a Determination

At the conclusion of the evaluation, the Secretary will determine whether the evidence

supports a determination of a commercial fishery failure due to a fishery resource disaster

caused by specific circumstances as required by the MSA or IFA. For actions under IFA

308(d), the extent, and the beginning and ending dates, of any fishery resource disaster

determined must be identified. The Secretary will notify the requestor of the determination.

The notification letter will specify if overfishing has occurred in the fishery and is a

contributing factor to the disaster.

VI. Forms of Financial Assistance

If the Secretary determines that a commercial fishery failure due to a fishery resource

disaster occurred, Congress may appropriate funds for assistance. There is no standing

fund from which to provide fishery disaster relief. Under both the MSA and IFA, if

Congress appropriates funds for a fishery disaster, the Secretary may provide disaster

assistance in the form of a grant, cooperative agreement, loan, or contract, following

Congressional guidance and the appropriate administrative processes.

Under MSA 312(a)(3) and IFA 308(b)(3), the Federal share of the cost of any activity

shall not exceed 75 percent. In addition, if the Secretary determines there is a fishery

resource disaster, then fishing- related businesses may qualify for certain Small Business

Administration (SBA) loans, which can, in certain cases, help address economic injury

and physical damage.

A disaster request should include a spending plan that, to the extent practicable, addresses

the causes of the disaster. Disaster funding should not contribute to the continuation of

overfishing or any of its causes. Developing and implementing strategies to improve

environmental and economic performance (including utilizing more selective harvesting

strategies and gear), improve fishery information, protect and restore habitat, as well as

capacity reduction and catch share programs are tools available to address problems of

overcapacity and economic inefficiency in fisheries, and could be a component of the

fishery disaster assistance.

Factors identified in Section IV.C to determine if there was a commercial fishery failure,

serious disruption affecting future production, or harm may bear on the assistance

NMFS Policy 01-122, May 8, 2007

provided if Congress appropriates funds. The Secretary may also examine the severity of

the effects by considering impacts on fishermen, processors, and other businesses of the

community affected by the failure, serious disruption, or harm. Further, the availability of

hazard insurance to address financial losses due to a disaster (e.g. hurricane, tsunami,

earthquake, etc.) and whether uninsured losses were previously mitigated with disaster

assistance may be consideration in determining economic losses for purposes of disaster

assistance under MSA and IFA.

Where a local economy is substantially dependent on fishing for a specific stock, a

commercial failure due to a fishery resource disaster may have more severe impacts than

in diversified economies, due to the lack of alternative fishing or nonfishing employment

opportunities. Appropriate assistance in this situation may include developing and

improving infrastructure or retraining, with the ultimate goal of making such areas less

dependent on a specific fishery or on fishing in general. Also, longer lasting failures may

justify job retraining programs or loans to provide assistance until recovery can take

place.

Under IFA 308(d), once the Secretary makes a determination of significant harm

incurred, the Secretary is authorized to provide disaster assistance if Congress

appropriates funds for the disaster, to the people engaged in commercial fisheries by

initiating projects or other measures to alleviate that harm. Projects or measures funded

with federal disaster assistance must be designed to offset the harm incurred and may not

be used in any manner that may increase the likelihood that such harm will reoccur in the

event of another hurricane or natural disaster. Activities funded by federal fishery disaster

assistance provided under MSA or IFA should take into account harm mitigated by other

means such as insurance or other governmental assistance.

In addition to the types of assistance identified in MSA 312(a), IFA 308(b), and IFA

308(d), buybacks of fishing permits or vessels under MSA authorities may be appropriate

options for an overcapitalized fishery experiencing a commercial fishery failure.

Buybacks under MSA 312(b) are voluntary in nature, and as there is no standing fund for

buybacks, funds must be appropriated for such a purpose. Prior to using buybacks as a

mechanism to provide assistance, the Secretary would assess whether latent (inactive)

permits are present in the fishery and how latent permits should be addressed as part of

any buyback program.

Signed_____________________________ 12/20/21

Janet L. Coit Date

Assistant Administrator for Fisheries