16 U.S.C. § 1853a — Limited access privilege programs

Page 2073 TITLE 16—CONSERVATION § 1853a tics of a fishery (including participants’ involvement in multiple fisheries in the region), and participation by commercial, charter, and recreational fishing sec- tors in the fishery; ‘‘(H) mechanisms to ensure that vessel owners, ves- sel masters, crew members, and United States fish processors are treated fairly and equitably in initial allocations, to require persons holding individual fishing quotas to be on board the vessel using such quotas, and to facilitate new entry under individual fishing quota programs; ‘‘(I) potential social and economic costs and bene- fits to the nation, individual fishing quota recipients, and any recipients of Federal permits described in subparagraph (D) under individual fishing quota pro- grams, including from capital gains revenue, the allo- cation of such quotas or permits through Federal auctions, annual fees and transfer fees at various lev- els, or other measures; ‘‘(J) the value created for recipients of individual fishing quotas, including a comparison of such value to the value of the fish harvested under such quotas and to the value of permits created by other types of limited access systems, and the effects of creating such value on fishery management and conservation; and ‘‘(K) such other matters as the National Academy of Sciences deems appropriate. ‘‘(2) The report shall include a detailed analysis of in- dividual fishing quota programs already implemented in the United States, including the impacts: of any lim- its on transferability, on past and present participants, on fishing communities, on the rate and total amount of bycatch (including economic and regulatory dis- cards) in the fishery, on the safety of life and vessels in the fishery, on any excess harvesting or processing ca- pacity in the fishery, on any gear conflicts in the fish- ery, on product quality from the fishery, on the effec- tiveness of enforcement in the fishery, on the size and composition of fishing vessel fleets, on the economic value created by individual fishing quotas for initial re- cipients and non-recipients, on conservation of the fish- ery resource, on fishermen who rely on participation in several fisheries, on the success in meeting any fishery management plan goals, and the fairness and effective- ness of the methods used for allocating quotas and con- trolling transferability. The report shall also include any information about individual fishing quota pro- grams in other countries that may be useful. ‘‘(3) The report shall identify and analyze alternative conservation and management measures, including other limited access systems such as individual trans- ferable effort systems, that could accomplish the same objectives as individual fishing quota programs, as well as characteristics that are unique to individual fishing quota programs. ‘‘(4) The Secretary of Commerce shall, in consulta- tion with the National Academy of Sciences, the Coun- cils, the fishing industry, affected States, conservation organizations and other interested persons, establish two individual fishing quota review groups to assist in the preparation of the report, which shall represent: (A) Alaska, Hawaii, and the other Pacific coastal States; and (B) Atlantic coastal States and the Gulf of Mexico coastal States. The Secretary shall, to the extent prac- ticable, achieve a balanced representation of view- points among the individuals on each review group. The review groups shall be deemed to be advisory panels under section 302(g) of the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1852(g)], as amended by this Act. ‘‘(5) The Secretary of Commerce, in consultation with the National Academy of Sciences and the Councils, shall conduct public hearings in each Council region to obtain comments on individual fishing quotas for use by the National Academy of Sciences in preparing the report required by this subsection. The National Acad- emy of Sciences shall submit a draft report to the Sec- retary of Commerce by January 1, 1998. The Secretary of Commerce shall publish in the Federal Register a no- tice and opportunity for public comment on the draft of the report, or any revision thereof. A detailed summary of comments received and views presented at the hear- ings, including any dissenting views, shall be included by the National Academy of Sciences in the final re- port.’’ EXISTING QUOTA PLANS Pub. L. 104–297, title I, § 108(i), Oct. 11, 1996, 110 Stat. 3581, provided that: ‘‘Nothing in this Act [see Short Title of 1996 Amendment note under section 1801 of this title] or the amendments made by this Act shall be construed to require a reallocation of individual fishing quotas under any individual fishing quota program ap- proved by the Secretary before January 4, 1995.’’ § 1853a. Limited access privilege programs (a) In general After January 12, 2007, a Council may submit, and the Secretary may approve, for a fishery that is managed under a limited access system, a limited access privilege program to harvest fish if the program meets the requirements of this section. (b) No creation of right, title, or interest Limited access privilege, quota share, or other limited access system authorization established, implemented, or managed under this chapter— (1) shall be considered a permit for the pur- poses of sections 1857, 1858, and 1859 of this title; (2) may be revoked, limited, or modified at any time in accordance with this chapter, in- cluding revocation if the system is found to have jeopardized the sustainability of the stock or the safety of fishermen; (3) shall not confer any right of compensa- tion to the holder of such limited access privi- lege, quota share, or other such limited access system authorization if it is revoked, limited, or modified; (4) shall not create, or be construed to cre- ate, any right, title, or interest in or to any fish before the fish is harvested by the holder; and (5) shall be considered a grant of permission to the holder of the limited access privilege or quota share to engage in activities permitted by such limited access privilege or quota share. (c) Requirements for limited access privileges (1) In general Any limited access privilege program to har- vest fish submitted by a Council or approved by the Secretary under this section shall— (A) if established in a fishery that is over- fished or subject to a rebuilding plan, assist in its rebuilding; (B) if established in a fishery that is deter- mined by the Secretary or the Council to have over-capacity, contribute to reducing capacity; (C) promote— (i) fishing safety; (ii) fishery conservation and manage- ment; and (iii) social and economic benefits; (D) prohibit any person other than a United States citizen, a corporation, part- nership, or other entity established under Page 2074 TITLE 16—CONSERVATION § 1853a the laws of the United States or any State, or a permanent resident alien, that meets the eligibility and participation require- ments established in the program from ac- quiring a privilege to harvest fish, including any person that acquires a limited access privilege solely for the purpose of perfecting or realizing on a security interest in such privilege; (E) require that all fish harvested under a limited access privilege program be proc- essed on vessels of the United States or on United States soil (including any territory of the United States); (F) specify the goals of the program; (G) include provisions for the regular mon- itoring and review by the Council and the Secretary of the operations of the program, including determining progress in meeting the goals of the program and this chapter, and any necessary modification of the pro- gram to meet those goals, with a formal and detailed review 5 years after the implemen- tation of the program and thereafter to coin- cide with scheduled Council review of the relevant fishery management plan (but no less frequently than once every 7 years); (H) include an effective system for enforce- ment, monitoring, and management of the program, including the use of observers or electronic monitoring systems; (I) include an appeals process for adminis- trative review of the Secretary’s decisions regarding initial allocation of limited access privileges; (J) provide for the establishment by the Secretary, in consultation with appropriate Federal agencies, for an information collec- tion and review process to provide any addi- tional information needed to determine whether any illegal acts of anti-competition, anti-trust, price collusion, or price fixing have occurred among regional fishery asso- ciations or persons receiving limited access privileges under the program; and (K) provide for the revocation by the Sec- retary of limited access privileges held by any person found to have violated the anti- trust laws of the United States. (2) Waiver The Secretary may waive the requirement of paragraph (1)(E) if the Secretary determines that— (A) the fishery has historically processed the fish outside of the United States; and (B) the United States has a seafood safety equivalency agreement with the country where processing will occur. (3) Fishing communities (A) In general (i) Eligibility To be eligible to participate in a limited access privilege program to harvest fish, a fishing community shall— (I) be located within the management area of the relevant Council; (II) meet criteria developed by the rel- evant Council, approved by the Sec- retary, and published in the Federal Reg- ister; (III) consist of residents who conduct commercial or recreational fishing, proc- essing, or fishery-dependent support businesses within the Council’s manage- ment area; and (IV) develop and submit a community sustainability plan to the Council and the Secretary that demonstrates how the plan will address the social and eco- nomic development needs of coastal communities, including those that have not historically had the resources to par- ticipate in the fishery, for approval based on criteria developed by the Coun- cil that have been approved by the Sec- retary and published in the Federal Reg- ister. (ii) Failure to comply with plan The Secretary shall deny or revoke lim- ited access privileges granted under this section for any person who fails to comply with the requirements of the community sustainability plan. Any limited access privileges denied or revoked under this section may be reallocated to other eligi- ble members of the fishing community. (B) Participation criteria In developing participation criteria for eli- gible communities under this paragraph, a Council shall consider— (i) traditional fishing or processing prac- tices in, and dependence on, the fishery; (ii) the cultural and social framework relevant to the fishery; (iii) economic barriers to access to fish- ery; (iv) the existence and severity of pro- jected economic and social impacts associ- ated with implementation of limited ac- cess privilege programs on harvesters, cap- tains, crew, processors, and other busi- nesses substantially dependent upon the fishery in the region or subregion; (v) the expected effectiveness, oper- ational transparency, and equitability of the community sustainability plan; and (vi) the potential for improving eco- nomic conditions in remote coastal com- munities lacking resources to participate in harvesting or processing activities in the fishery. (4) Regional fishery associations (A) In general To be eligible to participate in a limited access privilege program to harvest fish, a regional fishery association shall— (i) be located within the management area of the relevant Council; (ii) meet criteria developed by the rel- evant Council, approved by the Secretary, and published in the Federal Register; (iii) be a voluntary association, among willing parties with established by-laws and operating procedures; (iv) consist of participants in the fishery who hold quota share that are designated for use in the specific region or subregion covered by the regional fishery associa- tion, including commercial or recreational Page 2075 TITLE 16—CONSERVATION § 1853a 1 So in original. Probably should be ‘‘its’’. fishing, processing, fishery-dependent sup- port businesses, or fishing communities; (v) not be eligible to receive an initial al- location of a limited access privilege but may acquire such privileges after the ini- tial allocation, and may hold the annual fishing privileges of any limited access privileges it holds or the annual fishing privileges that is 1 members contribute; and (vi) develop and submit a regional fish- ery association plan to the Council and the Secretary for approval based on criteria developed by the Council that have been approved by the Secretary and published in the Federal Register. (B) Failure to comply with plan The Secretary shall deny or revoke limited access privileges granted under this section to any person participating in a regional fishery association who fails to comply with the requirements of the regional fishery as- sociation plan. (C) Participation criteria In developing participation criteria for eli- gible regional fishery associations under this paragraph, a Council shall consider— (i) traditional fishing or processing prac- tices in, and dependence on, the fishery; (ii) the cultural and social framework relevant to the fishery; (iii) economic barriers to access to fish- ery; (iv) the existence and severity of pro- jected economic and social impacts associ- ated with implementation of limited ac- cess privilege programs on harvesters, cap- tains, crew, processors, and other busi- nesses substantially dependent upon the fishery in the region or subregion; (v) the administrative and fiduciary soundness of the association; and (vi) the expected effectiveness, oper- ational transparency, and equitability of the fishery association plan. (5) Allocation In developing a limited access privilege pro- gram to harvest fish a Council or the Sec- retary shall— (A) establish procedures to ensure fair and equitable initial allocations, including con- sideration of— (i) current and historical harvests; (ii) employment in the harvesting and processing sectors; (iii) investments in, and dependence upon, the fishery; and (iv) the current and historical participa- tion of fishing communities; (B) consider the basic cultural and social framework of the fishery, especially through— (i) the development of policies to pro- mote the sustained participation of small owner-operated fishing vessels and fishing communities that depend on the fisheries, including regional or port-specific landing or delivery requirements; and (ii) procedures to address concerns over excessive geographic or other consolida- tion in the harvesting or processing sec- tors of the fishery; (C) include measures to assist, when nec- essary and appropriate, entry-level and small vessel owner-operators, captains, crew, and fishing communities through set- asides of harvesting allocations, including providing privileges, which may include set- asides or allocations of harvesting privi- leges, or economic assistance in the pur- chase of limited access privileges; (D) ensure that limited access privilege holders do not acquire an excessive share of the total limited access privileges in the program by— (i) establishing a maximum share, ex- pressed as a percentage of the total lim- ited access privileges, that a limited ac- cess privilege holder is permitted to hold, acquire, or use; and (ii) establishing any other limitations or measures necessary to prevent an inequi- table concentration of limited access privi- leges; and (E) authorize limited access privileges to harvest fish to be held, acquired, used by, or issued under the system to persons who sub- stantially participate in the fishery, includ- ing in a specific sector of such fishery, as specified by the Council. (6) Program initiation (A) Limitation Except as provided in subparagraph (D), a Council may initiate a fishery management plan or amendment to establish a limited ac- cess privilege program to harvest fish on its own initiative or if the Secretary has cer- tified an appropriate petition. (B) Petition A group of fishermen constituting more than 50 percent of the permit holders, or holding more than 50 percent of the alloca- tion, in the fishery for which a limited ac- cess privilege program to harvest fish is sought, may submit a petition to the Sec- retary requesting that the relevant Council or Councils with authority over the fishery be authorized to initiate the development of the program. Any such petition shall clearly state the fishery to which the limited access privilege program would apply. For multi- species permits in the Gulf of Mexico, only those participants who have substantially fished the species proposed to be included in the limited access program shall be eligible to sign a petition for such a program and shall serve as the basis for determining the percentage described in the first sentence of this subparagraph. (C) Certification by Secretary Upon the receipt of any such petition, the Secretary shall review all of the signatures on the petition and, if the Secretary deter- mines that the signatures on the petition Page 2076 TITLE 16—CONSERVATION § 1853a represent more than 50 percent of the permit holders, or holders of more than 50 percent of the allocation in the fishery, as described by subparagraph (B), the Secretary shall cer- tify the petition to the appropriate Council or Councils. (D) New England and Gulf referendum (i) Except as provided in clause (iii) for the Gulf of Mexico commercial red snapper fish- ery, the New England and Gulf Councils may not submit, and the Secretary may not ap- prove or implement, a fishery management plan or amendment that creates an indi- vidual fishing quota program, including a Secretarial plan, unless such a system, as ul- timately developed, has been approved by more than 2⁄3 of those voting in a referendum among eligible permit holders, or other per- sons described in clause (v), with respect to the New England Council, and by a majority of those voting in the referendum among eli- gible permit holders with respect to the Gulf Council. For multispecies permits in the Gulf of Mexico, only those participants who have substantially fished the species pro- posed to be included in the individual fishing quota program shall be eligible to vote in such a referendum. If an individual fishing quota program fails to be approved by the requisite number of those voting, it may be revised and submitted for approval in a sub- sequent referendum. (ii) The Secretary shall conduct a ref- erendum under this subparagraph, including notifying all persons eligible to participate in the referendum and making available to them information concerning the schedule, procedures, and eligibility requirements for the referendum process and the proposed in- dividual fishing quota program. Within 1 year after January 12, 2007, the Secretary shall publish guidelines and procedures to determine procedures and voting eligibility requirements for referenda and to conduct such referenda in a fair and equitable man- ner. (iii) The provisions of section 1883(c) of this title shall apply in lieu of this subpara- graph for an individual fishing quota pro- gram for the Gulf of Mexico commercial red snapper fishery. (iv) Chapter 35 of title 44 (commonly known as the Paperwork Reduction Act) does not apply to the referenda conducted under this subparagraph. (v) The Secretary shall promulgate cri- teria for determining whether additional fishery participants are eligible to vote in the New England referendum described in clause (i) in order to ensure that crew mem- bers who derive a significant percentage of their total income from the fishery under the proposed program are eligible to vote in the referendum. (vi) In this subparagraph, the term ‘‘indi- vidual fishing quota’’ does not include a sec- tor allocation. (7) Transferability In establishing a limited access privilege program, a Council shall— (A) establish a policy and criteria for the transferability of limited access privileges (through sale or lease), that is consistent with the policies adopted by the Council for the fishery under paragraph (5); and (B) establish, in coordination with the Sec- retary, a process for monitoring of transfers (including sales and leases) of limited access privileges. (8) Preparation and implementation of secre- tarial plans This subsection also applies to a plan pre- pared and implemented by the Secretary under section 1854(c) or 1854(g) of this title. (9) Antitrust savings clause Nothing in this chapter shall be construed to modify, impair, or supersede the operation of any of the antitrust laws. For purposes of the preceding sentence, the term ‘‘antitrust laws’’ has the meaning given such term in subsection (a) of section 12 of title 15, except that such term includes section 45 of title 15 to the ex- tent that such section 45 applies to unfair methods of competition. (d) Auction and other programs In establishing a limited access privilege pro- gram, a Council shall consider, and may provide, if appropriate, an auction system or other pro- gram to collect royalties for the initial, or any subsequent, distribution of allocations in a lim- ited access privilege program if— (1) the system or program is administered in such a way that the resulting distribution of limited access privilege shares meets the pro- gram requirements of this section; and (2) revenues generated through such a roy- alty program are deposited in the Limited Ac- cess System Administration Fund established by section 1855(h)(5)(B) of this title and avail- able subject to annual appropriations. (e) Cost recovery In establishing a limited access privilege pro- gram, a Council shall— (1) develop a methodology and the means to identify and assess the management, data col- lection and analysis, and enforcement pro- grams that are directly related to and in sup- port of the program; and (2) provide, under section 1854(d)(2) of this title, for a program of fees paid by limited ac- cess privilege holders that will cover the costs of management, data collection and analysis, and enforcement activities. (f) Characteristics A limited access privilege established after January 12, 2007, is a permit issued for a period of not more than 10 years that— (1) will be renewed before the end of that pe- riod, unless it has been revoked, limited, or modified as provided in this subsection; (2) will be revoked, limited, or modified if the holder is found by the Secretary, after no- tice and an opportunity for a hearing under section 554 of title 5, to have failed to comply with any term of the plan identified in the plan as cause for revocation, limitation, or modification of a permit, which may include conservation requirements established under the plan; Page 2077 TITLE 16—CONSERVATION § 1854 (3) may be revoked, limited, or modified if the holder is found by the Secretary, after no- tice and an opportunity for a hearing under section 554 of title 5, to have committed an act prohibited by section 1857 of this title; and (4) may be acquired, or reacquired, by par- ticipants in the program under a mechanism established by the Council if it has been re- voked, limited, or modified under paragraph (2) or (3). (g) Limited access privilege assisted purchase program (1) In general A Council may submit, and the Secretary may approve and implement, a program which reserves up to 25 percent of any fees collected from a fishery under section 1854(d)(2) of this title to be used, pursuant to section 53706(a)(7) of title 46, to issue obligations that aid in fi- nancing— (A) the purchase of limited access privi- leges in that fishery by fishermen who fish from small vessels; and (B) the first-time purchase of limited ac- cess privileges in that fishery by entry level fishermen. (2) Eligibility criteria A Council making a submission under para- graph (1) shall recommend criteria, consistent with the provisions of this chapter, that a fish- erman must meet to qualify for guarantees under subparagraphs (A) and (B) of paragraph (1) and the portion of funds to be allocated for guarantees under each subparagraph. (h) Effect on certain existing shares and pro- grams Nothing in this chapter, or the amendments made by the Magnuson-Stevens Fishery Con- servation and Management Reauthorization Act of 2006, shall be construed to require a realloca- tion or a reevaluation of individual quota shares, processor quota shares, cooperative pro- grams, or other quota programs, including sec- tor allocation in effect before January 12, 2007. (i) Transition rules The requirements of this section shall not apply to any quota program, including any indi- vidual quota program, cooperative program, or sector allocation for which a Council has taken final action or which has been submitted by a Council to the Secretary, or approved by the Secretary, within 6 months after January 12, 2007, except that— (1) the requirements of section 1853(d) of this title in effect on the day before January 12, 2007, shall apply to any such program; (2) the program shall be subject to review under subsection (c)(1)(G) of this section not later than 5 years after the program imple- mentation; and (3) nothing in this subsection precludes a Council from incorporating criteria contained in this section into any such plans. (Pub. L. 94–265, title III, § 303A, as added Pub. L. 109–479, title I, § 106(a)(2), Jan. 12, 2007, 120 Stat. 3586; amended Pub. L. 110–161, div. B, title V, § 529, Dec. 26, 2007, 121 Stat. 1930.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (b), (c)(1)(G), (9), (g)(2), and (h), was in the original ‘‘this Act’’, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, known as the Magnuson-Stevens Fishery Conservation and Manage- ment Act, which is classified principally to this chap- ter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables. The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, referred to in subsec. (h), is Pub. L. 109–479, Jan. 12, 2007, 120 Stat. 3575. Section 302(f) of the Act (120 Stat. 3624) is not clas- sified to the Code. For complete classification of this Act to the Code, see Short Title of 2007 Amendment note set out under section 1801 of this title and Tables. AMENDMENTS 2007—Subsec. (c)(4)(A)(iii). Pub. L. 110–161, § 529(1), substituted ‘‘association, among willing parties’’ for ‘‘association’’. Subsec. (i). Pub. L. 110–161, § 529(2)–(4), struck out des- ignation and heading of par. (1), redesignated subpars. (A) to (C) of former par. (1) as pars. (1) to (3), respec- tively, realigned margins, and struck out heading and text of former par. (2). Text of former par. (2) read as follows: ‘‘The requirements of this section, other than subparagraphs (A) and (B) of subsection (c)(1) and sub- paragraphs (A), (B), and (C) of paragraph (1) of this sub- section, shall not apply to any proposal authorized under section 302(f) of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 that is submitted within the timeframe prescribed by that section.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2007 AMENDMENT Pub. L. 110–161, div. B, title V, § 529, Dec. 26, 2007, 121 Stat. 1930, provided that the amendment made by sec- tion 529 is effective Jan. 13, 2007. APPLICATION WITH AMERICAN FISHERIES ACT Pub. L. 109–479, title I, § 106(e), Jan. 12, 2007, 120 Stat. 3594, provided that: ‘‘Nothing in section 303A of the Magnuson-Stevens Fishery Conservation and Manage- ment Act (16 U.S.C. 1801 et seq.) [16 U.S.C. 1853a], as added by subsection (a), shall be construed to modify or supersede any provision of the American Fisheries Act [title II of div. C of Pub. L. 105–277, see Tables for clas- sification] ([former] 46 U.S.C. 12102 note [see 46 U.S.C. 12113(e), (f), (h), (i)]; 16 U.S.C. 1851 note; et alia).’’ § 1854. Action by Secretary (a) Review of plans (1) Upon transmittal by the Council to the Secretary of a fishery management plan or plan amendment, the Secretary shall— (A) immediately commence a review of the plan or amendment to determine whether it is consistent with the national standards, the other provisions of this chapter, and any other applicable law; and (B) immediately publish in the Federal Reg- ister a notice stating that the plan or amend- ment is available and that written informa- tion, views, or comments of interested persons on the plan or amendment may be submitted to the Secretary during the 60-day period be- ginning on the date the notice is published. (2) In undertaking the review required under paragraph (1), the Secretary shall— (A) take into account the information, views, and comments received from interested persons;