[Federal Register: April 23, 2008 (Volume 73, Number 79)]
[Proposed Rules]
[Page 21893-21899]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23ap08-35]
=======================================================================
-----------------------------------------------------------------------
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 http://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 http://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