Magnuson-Stevens Act Provisions; Limited Access Privilege Programs; Individual Fishing Quota Referenda Guidelines and Procedures for the New England Fishery Management Council and Gulf of Mexico Fishery Management Council, 21893-21899 [E8-8756]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 73, Number 79 (Wednesday, April 23, 2008)]
[Proposed Rules]
[Pages 21893-21899]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-8756]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 070920529-8571-02]
RIN 0648-AW05


Magnuson-Stevens Act Provisions; Limited Access Privilege 
Programs; Individual Fishing Quota Referenda Guidelines and Procedures 
for the New England Fishery Management Council and Gulf of Mexico 
Fishery Management Council

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed guidelines and procedures; request for comments.

-----------------------------------------------------------------------

SUMMARY: In accordance with the Magnuson-Stevens Fishery Conservation 
and Management Act, as amended (Magnuson-Stevens Act), NMFS proposes 
guidelines and procedures for the New England Fishery Management 
Council (NEFMC), the Gulf of Mexico Fishery Management Council (GMFMC) 
(collectively the Councils), and NMFS to follow in determining 
procedures and voting eligibility requirements for referenda on 
Individual Fishing Quota (IFQ) program proposals. The intended effect 
of these procedures and guidance is to ensure IFQ program referenda are 
fair and equitable.

DATES: Comments must be submitted in writing on or before June 23, 
2008.

ADDRESSES: Copies of the Regulatory Impact Review/Initial Regulatory 
Flexibility Analysis (RIR/IRFA) prepared for this action, may be 
obtained from the mailing address listed here or by calling Robert 
Gorrell, NMFS-SF, 1315 East-West Highway, Silver Spring, MD 20910. You 
may submit comments, identified by 0648-AW05, by any one of the 
following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal https://www.regulations.gov.
     Fax: 301-713-1193, Attn: Robert Gorrell.
     Mail: Alan Risenhoover, Director, Office of Sustainable 
Fisheries, NMFS, Attn: IFQ Referenda Guidelines, 1315 East-West 
Highway, SSMC3, Silver Spring, MD 20910.
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments. Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Robert Gorrell, at 301-713-2341 or via 
e-mail at robert.gorrell@noaa.gov.

SUPPLEMENTARY INFORMATION: Section 303A of the Magnuson-Stevens Act 
specifies general requirements for Limited Access Privilege (LAP) 
programs implemented in U.S. marine fisheries. A LAP is defined as a 
Federal limited access permit that provides a person the exclusive 
privilege to harvest a specific portion of a fishery's total allowable 
catch. This definition encompasses exclusive harvesting privileges 
allocated to participants under IFQ programs.
    Section 303A(c)(6)(D) of the Magnuson-Stevens Act outlines specific 
requirements for IFQ program proposals developed by the NEFMC and 
GMFMC. Specifically, the Magnuson-Stevens Act requires such program 
proposals be approved through referenda before they may be submitted 
for review and implementation by the Secretary of Commerce (Secretary). 
Additionally, the Magnuson-Stevens Act requires the Secretary publish 
guidelines and procedures to determine procedures and voting 
eligibility requirements for IFQ program referenda and to conduct such 
referenda in a fair and equitable manner.

[[Page 21894]]

    A referendum conducted on a NEFMC IFQ program proposal must be 
approved by more than \2/3\ of those voting in the referendum among 
eligible permit holders and other eligible voters. The Magnuson-Stevens 
Act requires the Secretary promulgate criteria to determine whether 
additional fishery participants are eligible to vote in NEFMC IFQ 
program referenda in order to ensure that crew members who derive a 
significant percentage of their total income from a proposed IFQ 
fishery are eligible to participate in an IFQ referendum conducted in 
association with the program proposal.
    A referendum conducted on a GMFMC IFQ program proposal must be 
approved by a majority of those voting in the referendum. For Gulf of 
Mexico fisheries managed with multispecies permits, the Magnuson-
Stevens Act limits eligible referenda voters to those permit holders 
who have substantially fished the species to be included in the 
proposed IFQ program.
    This action proposes procedures for initiating, conducting, and 
deciding IFQ program referenda, as well as guidelines for specifying 
referenda voting eligibility requirements. These procedures and 
guidelines are intended to ensure referenda conducted on IFQ program 
proposals are fair and equitable, while providing the NEFMC and GMFMC 
the flexibility to define IFQ program referenda voting eligibility 
requirements on a fishery-specific basis within the constraints of the 
Magnuson-Stevens Act and other applicable law.
    These proposed procedures and guidelines also would apply to 
referenda conducted in association with any IFQ program proposal 
advanced through a Secretarial fishery management plan (FMP) or FMP 
amendment under the authority of Section 304(c) of the Magnuson-Stevens 
Act for a New England or Gulf of Mexico fishery. Any Secretarial IFQ 
program proposal must be approved by a majority of the voting members, 
present and voting, of the appropriate Council before it can be 
included in a Secretarial FMP or FMP amendment.

Initiating Referenda

    For the Council to initiate an IFQ referendum, these proposed 
guidelines and procedures would require the NEFMC or GMFMC to submit a 
request to NMFS by letter. The referendum initiation letter must 
include recommended eligibility criteria for voting in the referendum, 
rationale for the recommendation, and any other information that may be 
needed consistent with applicable law and the referenda guidelines and 
procedures; for example, alternatives to the recommendation and 
supporting analyses of the alternatives. Any referendum initiation 
letter submitted by the NEFMC must also include recommended criteria 
for determining whether additional fishery participants, including crew 
members, are eligible to vote in the referendum. Specifically, NEFMC's 
initiation letters must include a recommendation for the percentage of 
a crew member's total income that, if earned in the proposed IFQ 
fishery, would be considered significant. Any referendum initiation 
letter submitted by the GMFMC for a fishery managed with multispecies 
permits must also include recommended criteria for defining those 
permit holders who have substantially fished the species to be included 
in the proposed IFQ program.
    Following a referendum that has failed to approve the IFQ proposal, 
any request from a Council for a new referendum in the same fishery 
must include an explanation of the substantive changes to the proposed 
IFQ program or the changes of circumstances in the fishery that would 
warrant initiation of an additional referendum.
    A Council may not submit a referendum initiation letter to NMFS 
until: (1) The Council has held public hearings on the IFQ program 
proposal that is the subject of the referendum initiation letter; (2) 
the Council has considered public comments on the proposal; and (3) the 
Council has selected preferred alternatives for the proposal.
    NMFS is considering alternative approaches to the timing of the IFQ 
referendum initiation letter relative to a Council's procedure for 
development of the IFQ program proposal and FMP or FMP Amendment. The 
proposed action provides for a somewhat compressed referendum schedule 
by allowing the initiation request to be submitted after the Council 
has solicited and considered public input on an IFQ program proposal 
and selected preferred alternatives for the proposal. An alternative 
approach would require that the Council's FMP or FMP amendment document 
be complete, all public comment be considered and analyzed, and but for 
the requirement to conduct the referendum, the document be ready for 
submission to NMFS, before the referendum initiation request may be 
submitted.

Voter Eligibility

    Voter eligibility requirements recommended by the Councils must 
provide for fair and equitable referenda. When developing recommended 
voter eligibility criteria, Councils must consider the following 
factors: (1) The full range of entities likely to be eligible for 
initial allocations under the proposed IFQ program; (2) current and 
historic harvest and participation in the proposed IFQ fishery; and (3) 
any other factors determined by the Council to be relevant.
    When determining whether certain crew members may be eligible to 
vote in NEFMC IFQ program referenda, the Council must consider, at 
least, the following factors: (1) A crew member's history of 
participation in the fishery aboard a referendum-eligible vessel; (2) 
the economic value of and employment practices in the proposed IFQ 
fishery and other economic and social factors that would help determine 
what percentage of a crew member's total income from the fishery should 
be considered significant; and (3) the availability of documentary 
proof of employment and income to validate eligibility. For the 
purposes of this action, ``referendum-eligible vessel'' means a vessel, 
the permit holder or owner of which has been determined to be eligible 
to vote in the referendum on the basis of such vessel's history or 
other characteristics meeting the prescribed voter eligibility 
criteria.
    To be eligible to vote in a NEFMC IFQ program referendum, crew 
members, at a minimum: (1) Must have worked aboard a referendum-
eligible vessel at sea while engaged in fishing; (2) must produce 
documentary proof of income and employment or service as a crew member 
during the eligibility periods proposed by the NEFMC (if requested); 
(3) must have derived a percentage of his/her income from the fishery 
under the proposed IFQ program that is equal to or greater than the 
percentage determined to be significant relative to the economic value 
and employment practices of the fishery during the qualifying periods 
proposed by the NEFMC; and (4) must meet any additional eligibility 
criteria promulgated by NMFS. These criteria would limit eligibility of 
crew members to those who have worked aboard referendum-eligible 
vessels. If a vessel's activity in a fishery is considered by the NEFMC 
to be too little or dated to warrant the permit holder's participation 
in the referendum, it is unreasonable to allow crew members to derive 
eligibility from their work on that vessel. Also, this requirement 
would prevent the possibility of referendum-ineligible permit holders 
from influencing the referendum through their subordinate associates.
    The Magnuson-Stevens Act requirement to provide for the

[[Page 21895]]

possibility of other fishery participants, including crew members, to 
participate in NEFMC IFQ program referenda creates the challenge of 
verifying whether these individuals meet voter eligibility criteria. 
NMFS has records on the history of Federal fishery permits and 
landings, but has little information on crew member participation in 
fisheries. NMFS does have contact information for those crew members 
that have vessel operator permits, but NMFS does not collect 
information on individuals who serve aboard a fishing vessel as crew or 
in any other capacity or on the income of crew members. Nor does NMFS 
have historical data of this nature.
    To address this problem, NMFS is proposing to include the 
availability of employment and income documentation as a factor the 
NEFMC must consider when developing recommended referendum voter 
eligibility criteria. Specifically, the NEFMC must consider whether 
documentation of service onboard a vessel as crew or in other 
capacities exists, and to what extent the availability of documentation 
should affect voter eligibility. The NEFMC may consider similar 
documentation limitations when evaluating the percentage of an 
individual 's total income generated by the proposed IFQ fishery.
    NMFS acknowledges the dearth of information and the irregularity of 
documentation in this component of the fishery. While the NEFMC may 
recommend and NMFS may require crew members to provide verifiable 
documentation as proof of meeting the voter eligibility criteria 
established for any given IFQ program referendum, this proposed action 
provides for the possibility of allowing fishery participants to 
certify on referendum ballots that they meet the voter eligibility 
criteria. Self-certification would consist of a signature attesting to 
one's meeting the stated criteria, and participants would be subject to 
prosecution for any false statements made on official forms.
    NMFS interprets the Magnuson-Stevens Act requirement to ensure that 
certain crew members engaged in NEFMC fisheries are eligible to vote in 
IFQ program referenda to mean that NEFMC IFQ program referenda must 
provide for participation by eligible crew members.
    A Council may consider criteria for weighting eligible referendum 
votes. Section 303A(c)(6)(D) does not explicitly mention vote 
weighting, but the sections's legislative history gives the example of 
weighting votes in Gulf of Mexico fisheries by the quantity of fish 
authorized to be harvested under the permits of those voting (e.g., 200 
pounds per day or 2,000 pounds per day). If a Council recommends such 
criteria in a letter requesting initiation of a referendum, it should 
fully describe in the letter its rationale and the expected effects of 
such weighting on the referendum. NMFS will give consideration to the 
reasons for the proposed criteria to determine whether they are 
consistent with the National Standards of the Magnuson-Stevens Act, 
other provisions of the Act, and other applicable legal standards.

Ensuring Referenda Are Fair and Equitable

    The Magnuson-Stevens Act requires the Secretary to conduct IFQ 
program referenda in a fair and equitable manner. Every component of 
these proposed procedures and guidelines supports NMFS's compliance 
with that requirement. Council recommendations for voter eligibility 
criteria would be developed through public processes, along with any 
alternatives and supporting analyses or other information required by 
applicable law and provided in the Councils' referendum initiation 
letters. If NMFS finds the referendum voter eligibility criteria 
recommended by a Council would not provide for a fair and equitable 
referendum, or that they would not be consistent with National 
Standards under the Magnuson-Stevens Act, other provisions of the Act, 
and other applicable legal standards, then NMFS would deny the 
Council's request to conduct an IFQ program referendum and would inform 
the Council of the agency's finding, including reasons for the finding. 
The Council could then modify the voter eligibility criteria and 
supporting analyses to address NMFS's finding, and submit another 
referendum initiation letter to NMFS.
    In assessing whether Council recommendations for referenda criteria 
are fair and equitable, NMFS, at a minimum, would be required to take 
into account: (1) Whether the criteria are rationally connected to or 
further the objectives of the proposed IFQ program; (2) whether the 
criteria are designed in such a way to prevent any person or other 
entity from obtaining an excessive share of voting privileges; (3) 
whether the criteria are reasonable relative to the availability of 
documentary evidence and the possibility of validating a participant's 
eligibility; and (4) whether the referendum can be administered and 
executed fairly and equitably within a reasonable amount of time and 
without subjecting industry members, the Council, or NMFS to 
administrative burdens, costs, or other requirements that would be 
considered onerous. No voting eligibility criteria may differentiate 
among U.S. citizens, nationals, resident aliens, or corporations on the 
basis of their state of residence. The Council should analyze the 
relative benefits and hardships imposed by the voter eligibility 
criteria, and compare their consequences with those of alternative 
voter eligibility criteria.
    Rulemaking to implement fishery-specific IFQ referenda must 
describe the internal measures NMFS shall use to ensure referenda 
ballots are properly distributed, evaluated, and counted, and the 
procedures used to conduct the referenda are fair and equitable. 
Referenda ballots would be considered by NMFS as fishery information 
submitted to NMFS and subject to the confidentiality provisions and 
limitations of section 402(b) of the Magnuson-Stevens Act and 
regulations in 50 CFR 600 subpart E.

Conducting Referenda

    NMFS would initiate rulemaking to implement an IFQ program 
referendum as soon as practicable after receiving a Council's 
referendum initiation letter and finding the referendum can be 
conducted in a fair and equitable manner. The proposed schedules, 
procedures, and voter eligibility requirements associated with fishery-
specific referenda would be published as proposed rules in the Federal 
Register for public comment. Final fishery-specific referenda 
procedures and guidelines would be implemented through final rules 
published in the Federal Register.
    The Magnuson-Stevens Act requires the Secretary to conduct 
referenda on NEFMC and GMFMC IFQ program proposals as ultimately 
developed. NMFS interprets this provision to mean that NMFS may not 
publish a final rule implementing fishery-specific referenda procedures 
and guidelines until the Council determines the IFQ proposal and 
supporting analyses are complete and ready for Secretarial review. NMFS 
would inform the Council and the public through the Federal Register if 
the agency decided not to conduct a referendum, as proposed, including 
reasons for the decision.
    NMFS would provide each eligible voter a referendum ballot and 
would make available associated explanatory information concerning the 
referendum schedule, procedures, and eligibility requirements. NMFS may 
require individuals who wish to vote as other fishery participants in 
NEMFC IFQ program referenda to provide certain

[[Page 21896]]

documentation and certifications in order to receive a referendum 
ballot. Referenda ballots must be signed by eligible voters and 
received by NMFS by the specified deadline. Ballots received after the 
specified deadline would not be considered valid or evaluated in 
deciding the outcome of the referendum.
    NMFS interprets the Magnuson-Stevens Act to provide for permit 
holders to submit a ballot for each permit held.

Deciding Referenda

    NMFS would evaluate and count referenda ballots and announce 
referenda results within 60 days of the date by which completed ballots 
must be received. For a NEFMC IFQ referendum to be approved, more than 
2/3 of those voting in a referendum of eligible permit holders and 
others must vote in favor of the measure. For a GMFMC IFQ referendum to 
be approved, a majority of those voting must vote in favor of the 
referendum.
    If NMFS determines an IFQ referendum to be approved, then the 
Council may submit the associated FMP or FMP amendment for Secretarial 
review, approval, and implementation. If NMFS determines an IFQ 
referendum to have failed, then the Council may not submit the FMP or 
FMP amendment for Secretarial review. However, the Council may modify 
its IFQ program proposal and request a new referendum on the modified 
proposal.
    Any changes made to an IFQ program proposal that was reviewed by 
eligible voters through a referendum may invalidate the referendum and 
require the modified IFQ program proposal to be reviewed and approved 
through a subsequent referendum before the Council could submit the 
proposal for Secretarial review and implementation.

Classification

    These proposed guidelines and procedures are published under the 
authority of, and consistent with, the Magnuson-Stevens Act.
    This proposed action has been determined to be not significant for 
purposes of Executive Order 12866.

    The Regulatory Flexibility Act requires that, for a proposed rule, 
an initial regulatory flexibility analysis (IRFA) be prepared unless it 
is determined that the rule will not have a significant economic impact 
on a substantial number of small entities. NMFS believes it may be 
appropriate to make a determination that the rule will not have a 
significant economic impact on a substantial number of small entities, 
but is interested in receiving comments on whether it would be 
appropriate to make such a certification to the Chief Counsel for 
Advocacy of the Small Business Administration. Therefore, an initial 
regulatory flexibility analysis (IRFA) was prepared for this action, 
and NMFS will consider any comments received when deciding whether to 
make this certification at the final rule stage. A description of the 
action, why it is being considered, and the legal basis for this action 
are contained at the beginning of this section in the preamble and in 
the SUMMARY section of the preamble. A summary of the analysis follows. 
Copies of this analysis are available from NMFS (see ADDRESSES).

    The proposed action would establish guidelines and procedures 
mandated by Section 303A(c)(6)(D) of the Magnuson-Stevens Act for 
referenda on all Individual Fishing Quota (IFQ) program proposals 
(with the exception of an IFQ program for the Gulf of Mexico 
commercial red snapper fishery) to be developed by the New England 
Fishery Management Council and the Gulf of Mexico Fishery Management 
Council. Those future IFQ program proposals must be approved by 
referenda before they may be submitted for review and approval by 
the Secretary of Commerce.
    The proposed action contains guidelines and procedures (1) to 
determine procedures and voting eligibility, and (2) to conduct such 
referenda in a fair and equitable manner. At the same time, it would 
provide the Councils the flexibility to define IFQ program referenda 
voting eligibility requirements on a fishery-specific basis within 
the constraints of the Magnuson-Stevens Act and other applicable 
law. The Small Business Administration (SBA) has defined small 
entities as all fish harvesting businesses that are independently 
owned and operated, not dominant in its field of operation, and with 
annual receipts of $4 million or less. In addition, processors with 
500 or fewer employees for related industries involved in canned and 
cured fish and seafood, or preparing fresh fish and seafood, are 
also considered small entities. Because it would apply to all 
entities affected by NE or GOM proposal for an IFQ fishery, 
regardless of size, the proposed rule imposes no disproportionate 
impacts between large and small entities.
    Using the best available information, the number and description 
of small entities that could be affected by the proposed action 
includes approximately 8,300 permit holders in Gulf of Mexico 
fisheries, including those who hold 1,800 commercial shrimp permits, 
1,500 commercial king mackerel permits, 1,450 commercial Spanish 
mackerel permits, 1,350 for-hire coastal migratory pelagic permits, 
9,00 commercial reef fish permits, and 1,310 for-hire reef fish 
permits. Approximately 14,200 captains or crew members were employed 
in New England states (ME, NH, MA, RI, and CT) in New England 
fisheries for the calendar year 2005. In addition, approximately 
9,900 Mid-Atlantic residents (NY, NH, DE, MD, VA, and NC) were 
captains or crew members in New England fisheries for the calendar 
year 2005. In total, assuming future levels of employment are 
similar to employment in 2005, as many as 24,000 captains or crew 
members could be affected by this proposed rule.
    Given that the Magnuson-Stevens Act requires that the agency 
provide this referenda guidance, NMFS was unable to identify any 
significant alternatives that could meet the statutory requirements, 
yet minimize burdens on small entities. NMFS specifically invites 
public comment on this aspect of the rule.
    This proposed action would merely provide guidance and set out 
procedures for subsequent rules and thus does not impose any direct 
economic impact. However, the intangible benefits of ensuring that 
IFQ referenda are conducted in a fair and equitable manner are 
believed considerable. On the other hand, because the proposed 
action stipulates that permit holders and other fishery participants 
must meet voter eligibility criteria recommended by the Council and 
promulgated by NMFS regulations, future referenda criteria may limit 
voter eligibility and would thereby adversely impact some small 
business entities (e.g., certain crew members may be ineligible to 
vote in a future NEFMC IFQ program referendum). While the program is 
expected to provide a net benefit, this is not quantifiable until 
fishery-specific IFQ referenda are proposed because the proposed 
action only conveys broad guidance. Detailed analysis of data and 
impacts on vessels, vessel revenues, port revenues, fish stock 
impacts, etc. are not possible in the absence of identifying 
specific fisheries and IFQ program proposal components. Estimated 
direct economic impacts would be evaluated in compliance with the 
Regulatory Flexibility Act and other applicable Federal law at the 
time fishery-specific program proposals are developed.

    IFQ program referenda conducted under section 303A(c)(6)(D)(iv) of 
the Magnuson-Stevens Act are exempt from the Paperwork Reduction Act.

List of Subjects in 50 CFR Part 600

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: April 17, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons stated in the preamble, 50 CFR part 600 is proposed 
to be amended as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

    1. Under part 600, add subpart O to read as follows:
Subpart O--Limited Access Privilege Programs
Sec.
600.1300 [Reserved]

[[Page 21897]]

600.1301 [Reserved]
600.1302 [Reserved]
600.1303 [Reserved]
600.1304 [Reserved]
600.1305 [Reserved]
600.1306 [Reserved]
600.1307 [Reserved]
600.1308 [Reserved]
600.1309 [Reserved]
600.1310 Referenda.

    Authority: 16 U.S.C. 1801 et seq.

Subpart O--Limited Access Privilege Programs


Sec.  600.1310  Referenda.

    (a) Purpose and scope. This section establishes procedures and 
guidelines for referenda to be conducted on Individual Fishing Quota 
(IFQ) program proposals initiated by the New England Fishery Management 
Council (NEFMC), Gulf of Mexico Fishery Management Council (GMFMC), and 
NMFS. This section provides guidance on developing voter eligibility 
criteria and establishes general procedures to ensure referenda are 
conducted in a fair and equitable manner.
    (b) Initiating IFQ Referenda. (1) The NEFMC and the GMFMC shall not 
submit, and the Secretary shall not approve, an FMP or FMP amendment 
that would establish an IFQ program until the IFQ program proposal, as 
ultimately developed, has been approved by a referendum of eligible 
voters. Paragraph (h) of this section provides criteria for determining 
the outcome of IFQ referenda.
    (2) To initiate a referendum on a proposed IFQ program:
    (i) The Council must have held public hearings on the FMP or FMP 
amendment in which the IFQ program is proposed;
    (ii) The Council must have considered public comments on the 
proposed IFQ program proposal;
    (iii) The Council must have selected preferred alternatives for the 
proposed IFQ program;
    (iv) The chair of the Council with jurisdiction over such proposed 
IFQ fishery must request a referendum on the proposed IFQ program in a 
letter to the appropriate NMFS Regional Administrator; and
    (v) The letter requesting initiation of a referendum must include, 
but is not limited to, recommended criteria for NMFS to use in 
determining who is eligible to vote in the referendum, and may also 
include recommended criteria for vote weighting. The letter must 
provide the rationale supporting the Council's recommendation, as well 
as such additional information and analyses as needed consistent with 
applicable law and these guidelines and procedures. If a Council 
recommends vote weighting criteria, the letter should fully describe 
the expected effects of such weighting on the referendum.
    (vi) In addition to the requirements specified at paragraphs 
(b)(2)(iv)-(v) of this section, NEFMC referenda initiation letters must 
also include recommended criteria for NMFS to use in determining the 
eligibility of other fishery participants to vote in the referendum, 
including a criterion setting the minimum percentage of a crew member's 
total income that must have been earned in the proposed IFQ fishery. 
Guidelines for developing such recommendations are provided in 
paragraph (c)(2) of this section.
    (vii) In addition to the requirements specified at paragraphs 
(b)(2)(iv)-(v) of this section, GMFMC letters initiating referenda of 
multispecies permit holders in the Gulf of Mexico must include 
recommended criteria to be used in identifying those permit holders who 
have substantially fished the species proposed to be included in the 
proposed IFQ program, along with alternatives to the recommendation, 
and supporting analyses. Guidelines for developing such recommendations 
are provided at paragraph (c)(3) of this section.
    (3) Following a referendum that has failed to approve the IFQ 
proposal, any request from a Council for a new referendum in the same 
fishery must include an explanation of the substantive changes to the 
proposed IFQ program or the changes of circumstances in the fishery 
that would warrant initiation of an additional referendum.
    (c) Referenda voter eligibility.--(1) Permit holders and other 
fishery participants.-- (i) To be eligible to vote in IFQ referenda, 
permit holders and other fishery participants must meet voter 
eligibility criteria recommended by the Council and promulgated by 
NMFS.
    (ii) Holders of multispecies permits in the Gulf of Mexico must be 
determined to have substantially fished the species proposed to be 
included in the IFQ program to be eligible to vote in a referendum on 
the proposed program.
    (iii) When developing recommended criteria for determining which 
permit holders may participate in an IFQ program. referendum, the 
Councils must consider, but are not limited to considering:
    (A) The full range of entities likely to be eligible to receive 
initial quota allocation under the proposed IFQ program;
    (B) Current and historical harvest and participation in the 
fishery; and
    (C) Other factors as may be determined by the Council to be 
relevant to the fishery and to the proposed IFQ program.
    (2) Crew member eligibility in NEFMC IFQ referenda.--(i) For the 
purposes of these procedures and guidelines, ``referendum-eligible 
vessel'' means a vessel, the permit holder or owner of which has been 
determined to be eligible to vote in the referendum on the basis of 
such vessel's history or other characteristics meeting the prescribed 
voter eligibility criteria.
    (ii) To be eligible to vote in an NEFMC IFQ referendum, crew 
members must meet the following eligibility requirements:
    (A) The crew member must have worked aboard a referendum-eligible 
vessel at sea while engaged in fishing.
    (B) If requested, the crew member must produce documentary proof of 
employment or service as a crew member and income during the 
eligibility periods established by the NEFMC. Documents may include, 
but are not limited to, signed crew contracts, records of payment, 
settlement sheets, income tax records, a signed statement from the 
permit holder, and other documents as evidence of the period and the 
vessel upon which the crew member worked.
    (C) During the qualifying periods established by the NEFMC, the 
crew member must have derived a percentage of his/her total income from 
the fishery under the proposed IFQ program that is equal to or greater 
than the percentage promulgated by NMFS and determined to be 
significant relative to the economic value and employment practices of 
the fishery.
    (D) Any additional eligibility criteria promulgated by the NMFS.
    (iii) When developing recommended criteria for determining whether 
other fishery participants, including crew members, may participate in 
a NEFMC IFQ referendum, the NEFMC must consider, but is not limited to 
considering:
    (A) The full range of entities likely to be eligible to receive 
initial quota under the proposed IFQ program;
    (B) A crew member's current and historical participation in the 
fishery aboard a referendum-eligible vessel;
    (C) The economic value of the proposed IFQ fishery, employment 
practices in the proposed IFQ fishery, and other economic and social 
factors that would bear on a determination of what percentage of a crew 
member's total income from the fishery should be considered significant 
for the purposes of this section;

[[Page 21898]]

    (D) The availability of documentary proof of employment and income 
to validate eligibility; and
    (E) Any other factors as may be determined by the Council to be 
relevant to the fishery and the proposed IFQ program.
    (3) GMFMC's substantially fished criterion. When developing 
recommended criteria for identifying those multispecies permit holders 
who have substantially fished the species to be included in the IFQ 
program proposal, the GMFMC must consider, but is not limited to 
considering:
    (i) Current and historical harvest and participation in the 
fishery;
    (ii) The economic value of and employment practices in the fishery; 
and
    (iii) Any other factors determined by the Council to be relevant to 
the fishery and the proposed IFQ program.
    (d) Council-recommended criteria under (c) may include, but are not 
limited to, levels of participation or reliance on the fishery as 
represented by landings, sales, expenditures, or other considerations. 
A Council may also consider criteria for weighting eligible referendum 
votes. In its letter requesting initiation of a referendum, a Council 
should fully describe its rationale for any weighting recommendation 
and the expected effects of such weighting on the referendum.
    (e) Actions by NMFS: Review of Council referendum criteria and 
Secretarial IFQ plans. (1) NMFS shall determine whether Council 
recommended referendum criteria will provide for a fair and equitable 
referendum and will be consistent with National Standards under the 
Magnuson-Stevens Act, other provisions of the Act, and other applicable 
legal standards. The Secretary's considerations shall include, but 
shall not be limited to:
    (i) Whether the criteria are rationally connected to or further the 
objectives of the proposed IFQ program;
    (ii) Whether the criteria are designed in such a way to prevent any 
person or single entity from obtaining an excessive share of voting 
privileges;
    (iii) Whether the criteria are reasonable relative to the 
availability of documentary evidence and the possibility of validating 
a participant's eligibility; and
    (iv) Whether the referendum can be administered and executed in a 
fair and equitable manner in a reasonable time and without subjecting 
industry members, the Council, or NMFS to administrative burdens, 
costs, or other requirements that would be considered onerous.
    (2) If NMFS determines that referendum criteria would not provide 
for a fair and equitable referendum, would not be consistent with 
National Standards under the Magnuson-Stevens Act, other provisions of 
the Act, and other applicable legal standards, or, in the case of a 
referendum request subsequent to a failed referendum in the same 
fishery, that the Council has not substantively amended the IFQ 
proposal or circumstances have not changed sufficiently to warrant 
initiation of a new referendum, NMFS shall inform the Council of the 
agency's decision to deny the referendum request and of the reasons for 
the decision.
    (3) If NMFS determines that referendum criteria would provide for a 
fair and equitable referendum and would be consistent with National 
Standards under the Magnuson-Stevens Act, other provisions of the Act, 
and other applicable legal standards, then NMFS shall conduct the 
referendum in accordance with procedures and guidelines provided in 
paragraph (f) of this section.
    (4) In accordance with paragraphs (2) and (3), NMFS may initiate a 
referendum and promulgate referendum criteria for any IFQ program 
proposal advanced through a Secretarial fishery management plan (FMP) 
or FMP amendment under the authority of Section 304(c) of the Magnuson-
Stevens Act for a New England or Gulf of Mexico fishery. Such criteria 
must provide for a fair and equitable referendum and NMFS shall conduct 
the referendum in accordance with procedures and guidelines provided in 
paragraph (f) of this section.
    (f) Conducting IFQ referenda. (1) NMFS shall promulgate specific 
referenda procedural requirements, voter eligibility requirements, and 
any vote weighting criteria through appropriate rulemaking. A proposed 
rule shall seek public comment on the specific schedule, procedures, 
and other requirements for the referendum process.
    (2) For NEFMC IFQ program referenda, the proposed rule shall 
establish procedures for documenting or certifying that other fishery 
participants, including crew members, meet the proposed voter 
eligibility criteria.
    (3) For GMFMC IFQ program referenda of multispecies permit holders, 
the proposed rule shall include criteria to be used in identifying 
those permit holders who have substantially fished the species that are 
the subject of the proposed IFQ program.
    (4) If NMFS decides to proceed with the referendum after reviewing 
public comments, NMFS shall publish implementing regulations through a 
final rule in the Federal Register as soon as practicable after the 
Council determines the IFQ program proposal and supporting analyses are 
complete and ready for Secretarial review. Otherwise, NMFS shall 
publish a notice in the Federal Register to inform the Council and the 
public of its decision not to conduct the referendum, as proposed, 
including reasons for the agency's decision.
    (5) Upon implementation of the referendum through a final rule, 
NMFS shall provide eligible voters referenda ballots and shall make 
available information about the schedule, procedures, and eligibility 
requirements for the referendum process and the proposed IFQ program.
    (6) NMFS shall notify the public in the region of the subject 
fishery of the referendum eligibility criteria.
    (7) Individuals who wish to vote as other fishery participants in a 
NEFMC IFQ referendum must contact NMFS and produce all required 
documentation and certifications to receive a ballot. NMFS shall 
provide sufficient time in the referendum process to allow for crew 
members to request, receive, and submit referendum ballots.
    (g) Referenda ballots. (1) Ballots shall be composed such that 
voters will indicate approval or disapproval of the preferred IFQ 
program proposal.
    (2) NMFS may require voters to self-certify on referenda ballots 
that they meet voter eligibility criteria. To be considered valid, 
ballots that require such certification must be signed by the eligible 
voter.
    (3) Referenda ballots shall be numbered serially or otherwise 
designed to guard against submission of duplicate ballots.
    (4) NMFS shall allow at least 30 days for eligible voters to 
receive and return their ballots and shall specify a deadline by which 
ballots must be received. Ballots received after the deadline shall not 
be considered valid.
    (h) Determining the outcome of an IFQ referendum. (1) NMFS shall 
tally and announce the results of the referendum within 90 days of the 
deadline by which completed ballots must be received. NMFS may declare 
a referendum invalid if the agency can demonstrate the referendum was 
not conducted in accordance with the guidelines and procedures 
established in the final rule implementing the referendum.
    (2) A NEFMC IFQ program referendum shall be considered approved 
only if more than 2/3 of those voting submit valid ballots in favor of 
the referendum question.

[[Page 21899]]

    (3) A GMFMC IFQ program referendum shall be considered approved 
only if a majority of those voting submit valid ballots in favor of the 
referendum question.
    (i) Council actions. (1) If NMFS notifies a Council that an IFQ 
program proposal has been approved through a referendum, then the 
Council may submit the associated FMP or FMP amendment for Secretarial 
review and implementation.
    (2) Any changes that would modify an IFQ program proposal that was 
reviewed by referenda voters may invalidate the results of the 
referendum and require the modified program proposal to be approved 
through a new referendum before it can be submitted to the Secretary 
for review and implementation.
    (3) If NMFS notifies a Council that an IFQ referendum has failed, 
then the Council may modify its IFQ program proposal and request a new 
referendum pursuant to paragraph (b) of this section.

 [FR Doc. E8-8756 Filed 4-22-08; 8:45 am]
BILLING CODE 3510-22-P