PART 21 – Emergency Regulations Governing the Administration of Additional Federal Fisheries Relief Funding Provided to the State of Rhode Island Under the CARES Act

The purpose of these rules and regulations is to administer an additional $367,363 allocation of federal fisheries relief provided to Rhode Island pursuant to Section 12005 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. No. 116-136 expeditiously and equitably disbursing it in the form of direct payments to eligible fishery sector participants not made whole in the first administration of funds under the CARES Act 250-RICR-90-00-16. Funds will be administered among participants in two of the sectors used by NOAA Fisheries to establish Rhode Island’s allocation: commercial aquaculture and seafood processing/wholesaling, neither of which were compensated in full.

These rules and regulations are adopted pursuant to R.I. Gen. Laws Title 20, Chapter 42-17.1, and promulgated in accordance with R.I. Gen. Laws Chapter 42-35.

The terms and provisions of these Rules and Regulations shall be liberally construed to permit the Department to effectuate the purposes of state law, goals, and policies.

If any provision of these Rules and Regulations, or the application thereof to any person or circumstances, is held invalid by a court of competent jurisdiction, the validity of the remainder of the Rules and Regulations shall not be affected thereby.

"ASMFC" means the Atlantic States Marine Fisheries Commission.

"Department" means the Rhode Island Department of Environmental Management.

"NOAA Fisheries" means the U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service.

"SAFIS" means the Standard Atlantic Fisheries Information System.

A.On March 27, 2020, the President signed into law the Coronavirus Aid, Relief and Economic Security Act, or the CARES Act, as P.L. 120-136.

B.Sec. 12005 of the CARES Act authorizes the Secretary of Commerce to provide $300 million in appropriated funds to assist fishery participants affected by COVID-19, which may include direct payments. It defines fishery participants as Tribes, persons, fishing communities, aquaculture businesses, processors, or other fishing-related businesses who have incurred, as a direct or indirect result of the coronavirus pandemic, economic revenue losses greater than 35 percent as compared to their prior 5-year average revenue, or any negative impacts to subsistence, cultural or ceremonial fisheries.

C.On May 7, 2020, the Secretary of Commerce announced the allocation of the $300 million in fisheries assistance funding provided by Sec. 12005 of the CARES Act to the states, Tribes, and territories with coastal and marine fishery participants who have been negatively affected by COVID–19. The Secretary also announced the state allocations are to be administered through the interstate marine fishery commissions, i.e., the Atlantic States Marine Fisheries Commission (ASMFC) for Rhode Island.

D.Rhode Island was initially allocated $3,294,234. That amount was subsequently reduced to $3,267,923 to account for administrative fees assessed by NOAA Fisheries and the ASMFC for the allocation and distribution of funding.

E.On May 18, 2020, NOAA Fisheries issued a Request for Assistance letter to ASMFC, serving as guidance for the development of spend plans by individual states. An attachment to the letter set forth the methodology and data used by NOAA Fisheries to determine the individual state allocations – namely, available total annual revenue information from the commercial fishing, charter fishing, aquaculture, and processor sectors of coastal states, Tribes, and territories.

F.On May 22, 2020, NOAA Fisheries provided a breakdown of the apportionments, for three of the four sectors, used to determine the individual state allocations. For Rhode Island, the apportionments are: 68.0% commercial fishing and aquaculture; 28.5% seafood processing; and 3.5% for-hire fishing. Since May 7, 2020, NOAA Fisheries has maintained and periodically updated a webpage addressing the fisheries relief funding program, which together with the above-referenced Request for Assistance letter, constitutes the totality of guidance pertaining to the program. That webpage is found here: https://www.fisheries.noaa.gov/feature-story/commerce-secretary-announces-allocation-300-million-cares-act-funding.

G.Consistent with the provisions of the Sec. 12005 of the CARES Act and the associated guidance provided by NOAA Fisheries, the Department initiated a public process to develop the spend plan for Rhode Island. The public process included a series of webinars and workshops to brief stakeholders on the program and solicit input on the development of the Rhode Island spend plan. A total of seven workshops were held on June 15, June 29, July 8, July 9, July 13, July 22, and July 30, 2020.

H.As a component of the above-described public process, the Department sought and received feedback from stakeholders regarding the enactment of emergency regulations to implement the spend plan for Rhode Island, upon approval by NOAA Fisheries. All stakeholders supported the use of emergency regulations to expedite implementation of the fisheries relief program, in recognition that the issues addressed by regulation would be fundamentally the same as the provisions set forth in the spend plan.

I.On August 5, 2020, the Department submitted the draft Rhode Island spend plan (dated July 27, 2020) to NOAA Fisheries for initial review. The core component of the draft spend plan is to provide direct payments to eligible fishery participants in the four sectors used by NOAA Fisheries to establish Rhode Island’s allocation: commercial fishing, commercial aquaculture, seafood processing/wholesaling, and for-hire businesses.

J.On August 18, 2020, NOAA Fisheries provided comments to the Department, specifying modifications to the draft Rhode Island spend plan needed to gain approval.

K.On September 2,2020, the Department conducted an eighth public workshop to review the final changes to the Rhode Island spend plan made in response to the comments provided by NOAA Fisheries. At that workshop, a draft of these emergency regulations was also provided for review and comment.

L.On August 18, 2020, NOAA Fisheries granted final approval to the original CARES Act Rhode Island spend plan.

M. On March 2, 2022, NOAA Fisheries reallocated remaining funds under the CARES Act and Rhode Island was allocated an additional $367,363.

N. On April 5, 2022, NOAA Fisheries granted final approval to the amended CARES Act Rhode Island spend plan.

O.These emergency regulations operationalize the process of disbursing Rhode Island’s additional $367,363 allocation under Sec. 12005 of the CARES Act, consistent with the provisions of the Act, the guidance provided by NOAA Fisheries, and the approved Rhode Island spend plan.

A.The Department will not set aside funds to Rhode Island to cover the administrative costs of developing and implementing the Rhode Island spend plan.

A.$367,363 will be allocated among the two sectors whose needs were not met with the original $3,267,923 allocation, via the same proportions used by NOAA to establish the allocation of funds to Rhode Island. Proportions have been adjusted from the four original sectors (commercial fishing, commercial aquaculture, for-hire, and seafood processing/wholesale) to reflect the two sectors that were not fully compensated, as follows:

1.Commercial Aquaculture (15.9%): $58,518

2.Seafood Processing/Wholesale (84.1%): $308,845

21.9General:

A.All applicants must meet the flowing criteria: 

1.Must not be debarred from receiving federal funds.

2.Must not be on the federal government's "do not pay" list.

3. Must be a participant of the commercial aquaculture or seafood processing/wholesale sector.

4. Must have previously been awarded CARES Act relief funds from Rhode Island under 250-RICR-90-00-16, but not for the full approved claim amount.

5.Must not be made “more than whole” when receiving additional funds.

A.All eligible fishery participants will already have undergone evaluation and award per the process identified in 250-RICR-90-00-16.11.  

B.The Department will tally all claims within each sector and, for each sector, undertake the following process of determining payment amounts:

1.For applicants in the commercial aquaculture sector:

a.If the total amount of claims is less than $58,518, the Department will process payments for the full amount of each claim.

b.If the total amount of claims is more than $58,518, the Department will calculate the percentage of the total shortfall and apply that percentage to each claim.

2.For applicants in the seafood processing/wholesale sector:

a.If the total amount of claims is less than $308,845, the Department will process payments for the full amount of each claim.

b.If the total amount of claims is more than $308,845, the Department will calculate the percentage of the total shortfall and apply that percentage to each claim.

C.The Department will issue letters of eligibility to all qualifying applicants in both sectors.

1.Each letter will include the individual award amount based on the process described above. The letter will also request that if the award amount will make the participant more than whole, they must notify the RIDEM Division of Marine Fisheries within two weeks and provide an alternate, lower amount that they should be awarded.

2. Letters will be sent via mail and by electronic mail to ensure that all qualifying applicants receive notification in a timely manner.

D. There will be no appeals process as part of this program.

A.The Department will make any final adjustments to awards necessary to ensure that the $367,363 total allocation to Rhode Island is fully distributed to all eligible applicants. That is, any balances remaining in any sector will be reallocated, proportionally, to other sectors incurring shortfalls, and distributed, proportionally, to qualifying applicants in those sectors.

B.The letters of eligibility will serve as the final letters of award.

C.Following distribution of letters of eligibility and final award, the Department will forward the names, contact information, social security numbers and award amounts of all qualifying applicants to the Executive Director of the Atlantic States Marine Fisheries Commission (ASMFC), pursuant to a Cooperative Agreement between the Department and ASMFC that protects the confidentiality of information not subject to public disclosure. In turn, the ASMFC will issue payments to all qualifying applicants in accordance with the award amounts. The payments will be accompanied by 1099 forms, given the taxable nature of the payments.

The activities of this funding program will be completed, and the program will be terminated, once the complete list of all final award recipients has been provided to the Atlantic States Marine Fisheries Commission, the Commission has issued all payments in accordance with that list, the Rhode Island Department of Revenue, Division of Taxation has addressed and fully resolved any tax obligations applicable to any awardees, and at least three years have elapsed since the close of the primary grant award to the Atlantic States Fisheries Commission.