Overview
On March 27th, the President signed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) into law. It represents the third phase of legislation created by Congress to address the coronavirus crisis. It is the largest coronavirus-related bill to date, with an estimated cost of $2.2 trillion.
The law provides for increases in funding for Small Business Administration (SBA) loan, increased access to unemployment insurance, and $300 million set aside specifically for seafood businesses.
We expect there will be more relief legislation proposed in the coming months and we will continue to monitor the those bills for any provisions that may impact the commercial fishing industry.
More detailed information about specific programs and issues follow this overview and are broken out by category.
Contents:
- Financial Information
- Essential Employee Status
- Visa and Labor Issues
- Government Purchase of Seafood
- Federal Fisheries Disaster Action
- Fisheries Access
- Access to Testing
- Regulatory Concerns
- American Seafood Promotion
- State and Regional Information
Financial Information
The Paycheck Protection Program (PPP)
The CARES Act includes $349 billion to small businesses, tribal businesses and non-profits (less than 500 employees or less than 500 employees per location for chains or franchises) for a new payroll assistance program to provide forgivable liquidity loans to small businesses to cover payroll costs and keep employees on the payroll during the disaster. This is a separate program from the SBA economic injury disaster loan program.
The new program operates through Section 7a SBA-approved banks and lenders. Applicants may apply for up to 250% of their average monthly payroll costs. There are allowances for seasonal variations in calculating the average. They must commit to retain employees on their payroll during the crisis even if those employees are not working or working less than usual. If these terms are met, the loan is forgiven. There is no collateral requirement or personal guarantee. A business has to keep an average number of employees in the loan period on payroll that is the same as the average number that is normally kept in that period. There are waivers of the loan fee costs as well as the upfront paperwork along with a presumption of approval and delegation of authority to expedite application review. Borrowers can use loan proceeds for rent and utilities as well. Loan rates are capped at 4 percent with principal forgiven if the borrower meets the employment retention criteria. If there are reductions in employment while the loan is in effect then the amount of the principal forgiven is reduced accordingly. Any forgiven debt would not be treated as taxable income. An applicant cannot have a through this program and an SBA Economic Injury Disaster Loan for the same purpose. However, loan from the latter program can be transferred into a paycheck protection loan.
The first step an interested small business should do is contact one of the approved section 7a regional or local lenders to begin the registration and pre-application process. Follow the links below for a list of approved lenders:
https://www.sbalenders.com/bank-type/regional-sba-lenders/
https://www.sbalenders.com/bank-type/local-sba-lenders/
Click here for an overview and checklist from the U.S. Chamber of Commerce.
Small businesses and eligible nonprofit organizations, Veterans organizations, and Tribal businesses described in the Small Business Act, as well as individuals who are self-employed or are independent contractors, are eligible if they also meet program size standards.
- For a top-line overview of the program CLICK HERE
- If you’re a lender, more information can be found HERE
- If you’re a borrower, more information can be found HERE
- Final Borrower Application Form
- Lender Electronic Data Form
- Paycheck Protection Program – Interim Final Rule
- Interim Final Rule on Affiliation
- Applicable Affiliation Rules
- Frequently Asked Questions
- Find an eligible lender
For more information and updates, visit Treasury.gov/CARES and SBA.gov/PayCheckProtection.
Update on concerns with PPP:
The Paycheck Protection Program Loans for Small Businesses:
- The CARES Act created the Paycheck Protection Program (“PPP”), a $349 billion program that offers low-interest, federally-guaranteed bank loans to mitigate the impacts of COVID-19 on at-risk small businesses
- When the PPP was enacted, a small business could qualify for a loan amount based on 2.5 times its historical monthly payroll, but it remained unclear how businesses that rely on self-employed labor would be accommodated, given that independent contractors who do not receive W-2 forms from their employers are not accounted for in monthly payroll
- On April 2, 2020, the SBA and the Treasury Department published an Interim Final Rule (“IFR”) interpreting and implementing the PPP, which clarified that businesses could not use payments to independent contractors in their calculations of payroll for purposes of determining the eligible PPP loan amount
Impacts of the IFR on the Commercial Fishing Industry:
- Under IRS rules, a fisherman is considered self-employed if he meets all of the following conditions:
- He receives a share of the catch or a share of the proceeds from the sale of the catch.
- His share depends on the amount of the catch.
- He receives his share from a boat (or from each boat in the case of a fishing operation involving more than one boat) with an operating crew that is normally made up of fewer than 10 individuals. This requirement is considered to be met if the average number of crew members on trips the boat made during the last 4 calendar quarters was less than 10.
- He does not get any money from his work (other than his share of the catch or of the proceeds form the sale of the catch), unless the pay meets all of the following conditions.
- He does not get more than $100 per trip
- He is paid only if there is some minimum catch.
- He is paid solely for additional duties (such as for services performed as mate, engineer, or cook) for which additional cash payments are traditional in the fishing industry.
- According to a 2015 Final Rule published by the National Marine Fisheries Service, 97% of commercial fishing businesses do not have employees that receive W-2 forms
- Rather, these “non-employer” fishing businesses typically pay their crews a percentage of the revenue from each commercial fishing trip, as opposed to a standard wage or salary
- Thus, these self-employed crews are not considered employees, but would more aptly be categorized as independent contractors receiving 1099 forms from the IRS
- Commercial fishing corporations have long been considered an archetypical small business category, but due to the language of the IFR, the overwhelming majority of fishing vessel owners would be excluded from the PPP because they cannot include crew in payroll costs, thus preventing them from obtaining the loans they need to keep their businesses afloat
- Instead, each fishing crew member would need to apply for a PPP loan individually, a terribly inefficient process that would defeat the very purpose of this program
- A more efficient form of relief should be available via the vessel owner, as this would also enable vessel owners partial relief on their vessel mortgage interest and related expenses at a time when it is difficult to take a crew offshore due to impacts of the coronavirus on crew health and market demand
Proposal:
- Therefore, we would request an amendment to the IFR that would allow a commercial fishing vessel owner to include 1099 payments to crew in 2019 as “payroll” in applying for a PPP loan and determining maximum loan amount
- We would also request that a fishing vessel owner’s payments to crew from PPP loan proceeds likewise be treated as “payroll” under the PPP for purposes of determining the fishing vessel owner’s appropriate use of PPP loan proceeds, PPP loan forgiveness, and documentation to the lender for PPP loan forgiveness
Update 4/8/20:
The Senate is expected to vote as soon as 4/9 on legislation that would provide the small business Paycheck Protection Program an additional $250 billion in funding (bringing the total allocation to $600 billion)
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- See the administration’s funding request here
- This morning, Senate Democratic Leader Schumer (D-NY) and House Speaker Pelosi (D-CA) issued a joint statement saying that the “interim emergency” PPP package should: (1) ensure that half of the $250 billion is “channeled through community-based financial institutions” targeting the underserved; and (2) provide $100 billion in additional funding for the health sector, $150 billion for state and local governments, and a 15 percent increase in SNAP (food assistance) benefits
- Congressional Republicans and the administration are pushing for a PPP-only bill, stating that the additional priorities outlined by Democrats are not needed immediately
- See the administration’s funding request here
SBA Economic Injury Disaster (EID) Loans
Small businesses are now able to apply for EID loans directly from SBA. Terms are up 30 years at a 3.75 percent interest rate with a $2 million cap. The loan can cover payroll as well as other standard operating costs. Small non-profits may also apply and qualify for a lower interest rate – 2.75 percent. Applicants can seek an emergency grant to request an advance on the EID loan, of not more than $10,000, which the SBA must distribute within 3 days.
The link is to SBA’s web site to start the application process.
https://disasterloan.sba.gov/ela/
Tax Provisions
- Payroll Tax Credit – creates a refundable payroll tax credit for 50% of wages paid by employers to employees during the COVID-19 crisis. The credit is available to employers whose (1) operations were fully or partially suspended, due to a COVID-19-related shut-down order, or (2) gross receipts declined by more than 50 percent when compared to the same quarter in the prior year. The credit is based on qualified wages paid to the employee. For employers with greater than 100 full-time employees, qualified wages are wages paid to employees when they are not providing services due to the COVID-19-related circumstances described above. For eligible employers with 100 or fewer full-time employees, all employee wages qualify for the credit, whether the employer is open for business or subject to a shut-down order. The credit is provided for the first $10,000 of compensation, including health benefits, paid to an eligible employee. The credit is provided for wages paid or incurred from March 13, 2020 through December 31, 2020.
- Delay of payment of employer payroll taxes — The provision allows employers and self-employed individuals to defer payment of the employer share of the Social Security tax they otherwise are responsible for paying to the federal government with respect to their employees. Employers generally are responsible for paying a 6.2-percent Social Security tax on employee wages. The provision requires that the deferred employment tax be paid over the following two years, with half of the amount required to be paid by December 31, 2021 and the other half by December 31, 2022. The Social Security Trust Funds will be held harmless under this provision.
Unemployment Insurance
The CARES Act includes numerous provisions to improve unemployment benefits including providing an additional $600 per week for the next four months, providing an additional 13 weeks of federally funded benefits, and expanding eligibility to include workers in the gig economy and self-employed workers.
Assistance for American Workers and Families
In the weeks immediately after the passage of the CARES Act, Americans will see relief in the form of Economic Impact Payments. For more information, CLICK HERE.
Fisheries-Specific Assistance
The CARES Act has $300 million in NOAA fisheries disaster relief funding for commercial fishery, charterboat and some aquaculture participants who have suffered a greater than 35 percent revenue loss due to CV-19. This is separate funding from other fisheries disasters that have been previously declared for other reasons.
NOAA is still determining how to distribute and administer these funds. We have no further information beyond this statement from NOAA:
“Section 12005 of the CARES Act authorizes the Secretary of Commerce to provide $300 million in appropriated funds to assist fishery participants affected by the novel coronavirus (COVID–19). NOAA Fisheries understands the urgent need for these funds, and our overriding goal is to distribute the assistance as quickly as possible. To that end, we are working daily with the Department and our federal partners to finalize a process to expedite the distribution of Sec. 12005 funds, consistent with the direction provided by Congress.”
We will continue to update this section as developments unfold.
Congressional Update:
Huffman, Case, Cunningham, Graves Advocate for Fisheries Relief in Bipartisan Letter
Calls on Commerce Department to Expedite CARES Act Assistance
San Rafael, CA – Today, Representatives Jared Huffman (D-CA), Ed Case (D-HI), Joe Cunningham (D-SC), and Garret Graves (R-LA) led 35 of their colleagues in a bipartisan letter to the U.S. Department of Commerce urging immediate distribution of the assistance secured by Congress in the CARES Act to fishery participants, including Tribal, subsistence, commercial, and charter fishery participants. Representative Huffman currently serves as Chair of the Natural Resources Subcommittee on Water, Oceans, and Wildlife which has jurisdiction over fisheries.
“We write to urge you to quickly implement the Coronavirus Aid, Relief, and Economic Security Act, which provides $300 million for fishery participants facing unprecedented and severe impacts due to the novel coronavirus,” the members wrote in their letter. “Due to the ongoing public health crisis, fisheries dependent businesses and communities are facing extreme economic hardship from loss of markets […] Furthermore, many tribal and non-tribal communities impacted by the ongoing crisis have also faced fishery disasters in recent years with long delays in disaster relief, so they are especially threatened by additional economic hardship […] Rapid relief is critical now for the future of coastal communities, our constituents, and a thriving fishing industry. ”
As part of their letter, the Representatives requested that the Department of Commerce ensure a transparent and fair process for distributing the CARES Act relief and provide detailed guidance for requests, explicit timelines for review and distribution of funds, and clear standards for decision making and funding allocations.
Representative Huffman has been a career-long advocate for fishing communities and Tribes, and has continuously pushed for fishery disaster relief funding. Earlier this year, Huffman introduced the bipartisanFishery Failures: Urgently Needed Disaster Declarations Act (Fishery FUNDD Act) to improve the federal fishery disaster process and ensure more timely disaster relief for impacted communities.
In addition to Representatives Jared Huffman (D-CA), Ed Case (D-HI), Joe Cunningham (D-SC), and Garret Graves (R-LA), the letter was signed by Debbie Mucarsel-Powell (D-FL), Clay Higgins (R-LA), Alan Lowenthal (D-CA), David Rouzer (R-NC), Don Young (R-AK), Peter A. DeFazio (D-OR), Salud Carbajal (D-CA), Mike Thompson (D-CA), Steven M. Palazzo (R-MS), Aumua Amata Coleman Radewagen (R-AS), Denny Heck (D-WA), Jackie Speier (D-CA), Elaine G. Luria (D-VA), Ted Lieu (D-CA), David N. Cicilline (D-RI), Jimmy Panetta (D-CA), Kurt Schrader (D-OR), William R. Keating (D-MA), Suzanne Bonamici (D-OR), Charlie Crist (D-FL), Thomas R. Suozzi (D-NY), Rick Larsen (D-WA), Derek Kilmer (D-WA), Seth Moulton (D-MA), Chris Pappas (D-NH), Lee Zeldin (R-NY), Matt Gaetz (R-FL), Cedric L. Richmond (D-LA), Jenniffer González-Colón (R-PR), Joe Courtney (D-CT), Suzan K. DelBene (D-WA), Frank Pallone, Jr. (D-NJ), Tulsi Gabbard (D-HI), Steve Scalise (R-LA), and Jaime Herrera Beutler (R-WA).
The full letter can be found here or below.
MARBIDCO Pandemic Adjustment Loan Fund Program
The Maryland Agricultural and Resource-Based Industry Development Corporation (MARBIDCO) has established the Pandemic Adjustment Loan Fund Program to help Maryland’s food and fiber producers, harvesters and primary processors adjust to the business disruptions caused by the COVID-19 pandemic. The program offers low cost loans with flexible terms for working capital or equipment purchases. The maximum individual loan amount is $10,000, and no collateral security is required to be pledged to receive a loan.
Applicants for this program must currently be operating their qualifying business enterprises in a substantial manner (e.g., as farmers, loggers, seafood harvesters, or as primary food/fiber processors). Spin-off activities of the existing main business enterprise are eligible and encouraged, but purely start-up enterprises are not eligible. Eligible farmers, watermen and seafood processing businesses can apply for loans up to $3,000 in working capital and up to $10,000 for equipment purchases at a low interest rate with flexible terms. Loan repayments will be made interest-only for five months beginning in August, followed by amortizing payments for 12 to 36 months with a fixed rate of 3.75% starting next year. Borrowers who make all their payments will receive a 10% grant back (of the original amount borrowed) at the end of the loan term. A credit score of 620 or better is required.
Working capital includes (but is not limited to): planting materials such as oyster seed, hand tools, advertising and marketing expenses, and hired labor. Tangible equipment includes equipment with 7 years or more usual lifespan such as: motorized equipment, vehicles, commercial kitchen facilities, engine replacement, refrigeration units, as well as oyster shells.
Applications for the Pandemic Adjustment Loan Fund must be submitted by May 31st. The application form is available on the MARBIDCO website at www.marbidco.org. For questions, please call the office at (410) 267-6807. Due to current social distancing procedures, phone calls may not be readily answered (but all calls will be returned).
Essential Employee Status
The Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) has issued guidance on jobs it deems essential during the crisis: https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19
Food production is emphasized with seafood processing specifically mentioned in the Food and Agriculture Sector-Specific Plan.
Determination of essential employee status is determined at the state level, and while Federal guidance does not override state and local rules, our industry partners report that they are not aware of any states having issued stay at home guidance and restrictions which omit seafood harvesting and processing as essential.
Visa and Labor Issues
Many businesses rely on temporary, seasonal foreign labor for the harvesting and processing of seafood. Current travel restrictions and bureaucratic delays are limiting the number of essential workers available. When travel restrictions are reduced and retail businesses reopen, fishing operations need to be able to staff up as quickly as possible, including hiring essential workers with valid temporary, seasonal visas.
On April 2, DHS sent two tweets regarding H2B visas:
“DHS’s rule on the H-2B cap is on hold pending review due to present economic circumstances. No additional H2B visas will be released until further notice. Per the statute, H-2B allocations are set in consultation with DOL.”
“@DHSgov is looking at additional measures to protect American workers now and when normal economic activity is able to resume in the future. In the meantime, the Department of State has suspended routine visa services overseas.”
Government Purchase of Seafood
Many companies, organizations, and individuals in domestic seafood harvesting and processing have expressed the sentiment that the government could increase seafood purchases for institutional use (i.e. prisons, hospitals, school lunch programs, etc.) as well as for distribution as food assistance. The purchases would provide much needed capital, ensure stable prices, allow companies to move stored inventory, and ensure continued operations. This would also ensure a stable supply of fresh, healthy food for those who are facing food shortages.
We have no information on specific efforts in this regard at this time, but will continue to monitor this issue.
Federal Fisheries Disaster Action
Many companies, organizations, and individuals in domestic seafood harvesting and processing have asked that the Administration expedite the OMB approval process of stakeholder “spend plans” for fishery disasters already declared and funded by Congress. There are currently plans sitting at OMB awaiting final approval and funding disbursements. The COVID situation has placed a more urgent need in coastal communities for these previously appropriated funds.
We will convey these requests to appropriate parties and agencies, and report on any progress on this page.
Fisheries Access
In order that the industry may make a full and speedy recovery, to reduce costs, and to maintain supply, many companies, organizations, and individuals in domestic seafood harvesting and processing have urged reducing unnecessary regulatory burdens currently in place that are preventing access to and sustainable harvest from fishing grounds, including regulations enacted by the Obama Administration that discriminate against seafood harvesters by banning commercial fishing in U.S. marine monuments, while allowing recreational fishing.
Access to Testing
Due to the confined nature of working on a fishing vessel and in some processing facilities, many companies are concerned about the lack of available tests kits to ensure that crew members and employees are not exposed to asymptomatic carriers in close working and sleeping quarters.
We have no further information, but will convey these requests to appropriate parties and agencies, and report on any progress on this page.
Regulatory Concerns
Many captains, boat owners, companies, and organizations in domestic seafood harvesting expressed concern about continued requirements to carry observers in the close quarters of fishing vessels during this time of pandemic.
In response, NOAA temporarily waived the requirement for vessels with Northeast fishing permits to carry a fishery observer or at-sea monitor. The waiver was initially put into effect through April 4, and continued extensions of the waiver are being evaluated weekly.
For the rest of the country, NOAA Fisheries issued an emergency action to provide the authority, on a case-by-case basis, to waive observer coverage, some training, and other program requirements while meeting conservation needs and providing an ongoing supply of fish to markets.
Under this emergency action, NOAA Fisheries regional administrators, office directors, or science center directors have the ability to waive observer requirements in specific circumstances, after consulting with observer providers. Under this emergency action, NOAA Fisheries may waive observer coverage requirements if:
- Local, State, or national governments, or private companies or organizations that deploy observers pursuant to NMFS regulations, restrict travel or otherwise issue COVID-19-related social control guidance, or requirement(s) addressing COVID-19-related concerns, such that it is inconsistent with the requirement(s) or not recommended to place an observer(s); or
- No qualified observer(s) are available for placement due to health, safety, or training issues related to COVID-19.
On March 27th, NOAA Fisheries published an Emergency Rule regarding the circumstances by which observer coverage would be waived.
In the opinion of a number of our Saving Seafood coalition members, the emergency rule does not provide sufficient protections to ensure the health and safety of the captains and crew of commercial fishing vessels.
The conditions proposed for the waivers leave an opportunity for continued observer coverage. Many of our members feel at this time a permanent waiver should be granted for 90 days. State and Federal entities have made it perfectly clear that serious precautions should be taken to control the spread of this virus.
Given the inherent nature of the fishing industry, close quarters on fishing vessels and the potential spread of the virus to entire crews, and their families, many of our members believe the cost is too great.
Please use the Federal Register notice to submit comments and share your personal experience and concerns.
In addition, the emergency rule indicates that some of the observer training and requirements may be waived to make sure there is sufficient personnel available to act as observers.
We encourage industry members to provide your own thoughts on that topic, as you have all had your own experience with the observers.
Comment on the emergency rule here
American Seafood Promotion
On an encouraging note, many businesses are seeing an increase in retail sales of seafood through grocery stores and markets. U.S. fisheries are among the best in the world and this is a perfect opportunity to promote consumption of sustainably caught domestic seafood.
Many companies, organizations, and individuals in domestic seafood harvesting and processing have urged the creation of a “Buy American” campaign, with simple instructions, to help these businesses move their product and maintain revenue. We will work with the industry, and reach out to NOAA to explore the possibility of developing and funding such a campaign.
In the meantime, the Seafood Nutrition Partnership has formed a new Seafood4Health Action Coalition to support an “Eat Seafood, America!” effort. It is not focused specifically on American-caught seafood, but just seafood in general. They ask participants to do the following:
- Eat seafood and buy seafood. It’s as simple as that! Buy it online from purveyors, restaurants, mail-order, grocery stores.
- Go to eatseafoodamerica.com and download campaign images and messages.
- Post a snap or video of your meal, tag it with #EatSeafoodAmerica.
State and Regional Information
We will work with our partners around the country to add information for state and local disaster resources.
States
Florida
Information from Florida Sea Grant