[Federal Register Volume 73, Number 241 (Monday, December 15, 2008)]
[Rules and Regulations]
[Pages 75968-75975]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29650]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 070920529-81555-02]
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, the Gulf of Mexico 
Fishery Management Council, and the National Marine Fisheries Service

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

ACTION: Final rule.

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

SUMMARY: NMFS issues a final rule implementing guidelines and 
procedures for the New England Fishery Management Council (NEFMC) and 
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 in accordance with the Magnuson-Stevens Fishery 
Conservation and Management Act, as amended (Magnuson-Stevens Act). The 
intended effect of these procedures and guidance is to help develop IFQ 
program referenda in the New England and Gulf of Mexico fisheries that 
are fair and equitable.

DATES: This rule is effective January 14, 2009.

[[Page 75969]]


ADDRESSES: Copies of the Regulatory Impact Review (RIR) 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 (also see FOR FURTHER INFORMATION CONTACT).
    This Federal Register document is also accessible via the Internet 
at: http://www.access.gpo.gov/su-docs/aces/aces140.html.

FOR FURTHER INFORMATION CONTACT: Robert Gorrell, at 301-713-2341 or via 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: NMFS published the proposed rule for this 
action in the Federal Register on April 23, 2008 (73 FR 21893) with a 
public comment period through June 23, 2008. NMFS received comments 
from 11 commenters. Responses to these comments are discussed under the 
Comments and Responses section of this preamble.
    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 to 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 to 
publish guidelines and procedures to (1) determine procedures and 
voting eligibility requirements for IFQ program referenda, and (2) to 
conduct such referenda in a fair and equitable manner.
    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 that 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.
    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 final rule establishes procedures for initiating, conducting, 
and determining the outcome of 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 flexibility to develop IFQ program referenda voting 
eligibility requirements on a fishery-specific basis, in accordance 
with the Magnuson-Stevens Act and other applicable law.
    These 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.
    For a discussion of these procedures and guidelines, i.e., 
initiating referenda, voter eligibility, ensuring referenda are fair 
and equitable, conducting referenda, and deciding referenda, please see 
the preamble to the proposed rule published on April 23, 2008 (73 FR 
21893).

Comments and Responses

    The public comment period on the proposed rule closed on June 23, 
2008. A total of 11 commenters submitted comments (via e-mail, fax, and 
regular mailing) to NMFS on behalf of five individual fishermen, the 
New England Fishery Management Council, and five non-governmental 
organizations with fisheries and environmental interests. These 
organizations were the Associated Fisheries of Maine, the Southern 
Shrimp Alliance, Inc., the Environmental Defense Fund, the Food & Water 
Watch, and the Ocean Conservancy. Their comments are summarized and 
responded to below.
    Comment 1: A number of respondents offered comments relative to 
specific IFQ programs (both existing and in development) rather than 
commenting on the proposed procedures and guidelines for conducting a 
referendum.
    Response: These comments are outside the scope of this action. NMFS 
acknowledges the comments but will not respond in this document. 
Opportunities for public comment on specific IFQ programs are available 
or will be during the normal Council plan amendment and rulemaking 
processes.
    Comment 2: The rule would establish rather broad guidelines within 
which the Councils would develop IFQ referendum voter eligibility 
criteria and referendum details. Several respondents supported the 
flexibility afforded by the broad guidelines, noting that they provided 
Councils with the ability to prepare criteria and program details 
suited specifically to the proposed IFQ fishery. One member of the 
public stated that the guidelines are overly broad and give NMFS 
unbridled discretion, which may result in an unfair and inequitable 
referendum, especially from the perspective of owners of small vessels. 
Another supported the broadness of the guidelines, indicating that the 
referenda need to be developed on a case-by-case basis and suggesting 
that more detailed or constrained guidelines would likely be too 
complicated to execute.
    Response: The fisheries managed by the New England and Gulf of 
Mexico Fishery Management Councils vary greatly in terms of number of 
participants, geographic range, fishing method, and value. The IFQ 
program proposals could introduce even more variability to the 
situations and issues to be addressed by the Councils as they develop 
referendum eligibility criteria. Rather than constrain the Councils 
with detailed referendum eligibility requirements, and in order to 
accommodate the potential variety of IFQ proposals and voter 
situations, NMFS has decided to set general eligibility standards and 
referendum procedures at this time. More specific criteria and 
procedures for each proposed IFQ program will be developed by the 
Councils and implemented by NMFS when the details of the IFQ program 
proposals are known. The Councils, when requesting that NMFS conduct an 
IFQ referendum, would have to analyze the recommended eligibility 
criteria and justify the criteria selected.
    Although the proposed rule contained general eligibility 
requirements for referendum participation, the guidelines do not give 
NMFS or the Councils ``unbridled discretion'' in this regard. NMFS and 
the Councils will develop referendum eligibility requirements for 
proposed IFQ programs consistent with

[[Page 75970]]

the Magnuson-Stevens Act, including the National Standards, and other 
applicable law.
    The procedures and guidelines are neutral relative to vessel size, 
past landings, and other criteria that may factor into voter 
eligibility. These procedures and guidelines do not favor large vessels 
over small vessels, or vice versa. IFQ programs can be designed by the 
Councils to reflect a wide variety of Council and public priorities. 
Accordingly, the Councils will have the discretion to establish a vote 
weighting system or to count votes on a per permit basis, to meet these 
priorities while providing meaningful participation for each fishery 
segment.
    Comment 3: Under the proposed rule, those participants in a Gulf of 
Mexico fishery who have substantially fished the species under 
consideration in an IFQ program would be eligible to vote in the 
referendum. One respondent stated that it is unfair to define 
``participants who have substantially fished'' as those permit holders 
with larger vessels, concluding this would disenfranchise the small 
vessel fishermen in the Gulf of Mexico. Another respondent stated this 
provision would discriminate against small boat operators. A third 
respondent stated that all those having fished the species being 
considered in the IFQ program should be eligible to vote in the 
referendum. Two respondents were in favor of the substantially fished 
provision because they advocate for the position that the fate of the 
IFQ program appropriately rests with participants who have a vested 
interest in the proposed IFQ fishery.
    Response: The Magnuson-Stevens Act limits eligible voters in a 
referendum for a Gulf of Mexico multispecies fishery to holders of 
multispecies permits who have ``substantially fished'' the species to 
be included in the proposed IFQ program. However, the Magnuson-Stevens 
Act does not define ``substantially fished.'' The definition of 
``substantially fished'' may vary for each IFQ program because the 
Council will take into consideration various eligibility criteria 
including past and present participation in the fishery, and the full 
range of entities likely to be eligible for initial IFQ allocations, as 
well as other factors to be determined by the Council. There will be 
opportunities to comment on referendum eligibility criteria for 
specific IFQ program proposals in the rulemaking procedures undertaken 
for those proposals.
    Comment 4: Two respondents stated that applying differential 
weighting to referendum votes would be unfair and would exclude or 
diminish the importance of smaller scale fishing community members. Two 
other respondents expressed their support of vote weighting. One noted 
that vote weighting could help to ensure permit holders in the Gulf of 
Mexico who ``substantially fished'' would largely influence the outcome 
of the referendum.
    Response: The rule provides for the possibility of vote weighting, 
but it does not require weighting; furthermore, the rule does not 
specify any criteria for weighting votes. For instance, the New England 
Council could develop a referendum proposal that does not weight votes 
at all; or it could apply a weighting formula that considers a variety 
of parameters, such as landings, vessel size, time in the fishery, 
amount of fishing activity, number of crew, etc. Depending on the goals 
of the Council and the proposed IFQ program, these parameters could 
balance the way certain sectors of the fishery participate in the 
referendum. For example, if an IFQ proposal is likely to affect the 
small boat inshore fleet, votes could be weighted to ensure smaller 
vessels are reasonably represented in the outcome of the referendum.
    NMFS will use these guidelines and procedures to assure fair and 
equitable referenda. In assessing whether Council recommendations for 
referenda criteria are fair and equitable, NMFS will take into account, 
among other things, whether the criteria are rationally related to the 
proposed IFQ program and whether the criteria prevent any person or 
other entity from obtaining an excessive share of the voting 
privileges. Also, NMFS will evaluate the criteria in light of the 
National Standards under the Magnuson-Stevens Act. These considerations 
should help the Council and NMFS balance the goals of the program with 
the eligibility criteria and any vote weighting criteria, ensuring that 
no segment of the fishery is unduly disadvantaged by the referendum 
process.
    Comment 5: One respondent stated that the application of a control 
date and establishment of a voter eligibility criterion of fishing 
activity relative to the control date would be unfair and inequitable. 
The respondent cited a new vessel owner's lack of access to the prior 
owner's landings history as the cause for this concern.
    Response: The procedures and guidelines for conducting a referendum 
state that Councils should consider past and present harvest and 
participation in the fishery when establishing voter eligibility 
criteria. They do not specify how the Council must determine and assess 
past participation. Councils may use multiple ways to determine 
eligibility. Setting a control date, in conjunction with landings or 
vessel activity requirements from a set of qualifying years, is a 
possible criterion, but others are also possible; for instance, current 
year activity may be another important consideration in determining 
voter eligibility.
    Because the procedures and guidelines do not specify the use of a 
control date, the respondent's concern would be better addressed to the 
Council during the development of specific IFQ program proposals and 
referendum criteria.
    Comment 6: Of the two alternatives considered for timing of the IFQ 
referendum initiation letter, respondents supported the somewhat 
compressed referendum schedule. One commenter stated that NMFS should 
conduct the referendum within 60 days of receiving the Council's 
initiation letter. Another requested that NMFS provide time frames for 
responding to referendum requests and for conducting the referendum.
    Response: NMFS has provided for the compressed schedule alternative 
in the final rule to expedite implementation of IFQ referenda. The 
measure allows the Council's referendum initiation request to be 
submitted after the Council has solicited and considered public comment 
and has selected preferred alternatives for the proposed IFQ program. 
This approach, unlike the alternative noted in the preamble of the 
proposed rule, does not require that the FMP or FMP amendment document 
be completed prior to requesting the referendum. Though the procedures 
and guidelines specify that the compressed schedule alternative may be 
used, a Council would have the option to complete its FMP document 
before submitting the referendum initiation request to NMFS.
    The Councils and NMFS will execute the referendum as expeditiously 
as possible. The amount of time NMFS will need to conduct a referendum 
after submission of the initiation request is very difficult to 
determine. The length of time will depend on many factors, including 
the complexity of the eligibility or weighting criteria, the quality of 
the data supporting the eligibility criteria, and the number of 
entities involved. Any eligibility process that relies on landings 
data, for example, will have to include time for notification of 
industry members and may also include an appeals process for potential 
participants. On the other hand, a simple eligibility criterion 
requiring only that one have an active permit could be more quickly 
executed.

[[Page 75971]]

When the Council submits a specific referendum initiation request, NMFS 
may announce an estimated timeline for the execution of the referendum. 
The IFQ referendum will be executed through rulemaking. The process of 
drafting, clearing, and publishing the proposed rule, along with a 
period for public comment and preparation and publication of the final 
rule is likely to take more than 60 days to complete.
    The proposed rule stated that the referendum rulemaking would 
establish a deadline for receiving ballots from eligible voters. Since 
a referendum in New England must accommodate the possibility of crew 
members participating, the window for submitting ballots may need to be 
generous. Crew members who are potentially eligible to vote will need 
time to contact NMFS, have their eligibility credentials validated, and 
then submit the completed ballot. After the ballots are received by 
NMFS, the procedures and guidelines allow up to 60 days for NMFS to 
determine and announce the result of the referendum.
    Comment 7: A referendum conducted for a New England fishery must 
provide for the possibility of voting by crew members who meet all 
eligibility criteria, including certain income requirements. Several 
respondents commented on the documentation that would be needed to 
prove a crew member's income and period of service on a referendum-
eligible vessel. One respondent specified that a crew member should be 
made to present pay records correlated with tax filings, as well as 
notarized statements from vessel owners documenting the crew member's 
service aboard the vessel. One respondent opposed the idea of crew 
members self-certifying their own compliance with the eligibility 
criteria (under threat of prosecution for making a false statement to 
the government), while another respondent supported the approach.
    Response: NMFS does not collect or maintain any data on the 
participation and income of crew members in any New England fishery. 
The practices of hiring crew members and documenting their labor are 
believed to vary widely across the region and between fisheries. Due to 
these factors, the procedures and guidelines specify that the 
availability of documentary proof of employment and income to validate 
eligibility be among the Council's considerations as it develops the 
voter eligibility criteria recommendations specific to the subject 
fishery.
    NMFS aims to guard against setting documentation standards that are 
unattainable for potentially eligible crew members. Also, NMFS hopes to 
execute referenda expeditiously. Accordingly, the procedures and 
guidelines allow for a referendum to occur in which crew members would 
self-certify that they meet eligibility criteria. The Council may adopt 
self-certification in its eligibility criteria recommendation or may 
specify other documentation requirements.
    Comment 8: One respondent suspected that the crew member 
eligibility process could be subject to abuse in attempts to affect the 
outcome of a referendum. The writer suggested that NMFS pay close 
scrutiny to crew member eligibility documentation presented by the 
family members of vessel owners.
    Response: All documentation presented to NMFS to support claims of 
voter eligibility will be reviewed. Suspect materials will be turned 
over to the NOAA Fisheries Office for Law Enforcement for investigation 
and possible enforcement action.
    Comment 9: Under the procedures and guidelines, one of NMFS's 
considerations for determining whether a referendum is likely to be 
fair and equitable is whether the criteria are designed to preclude any 
single entity from obtaining an excessive share of voting privileges. 
One respondent questioned NMFS's use of the term ``excessive share,'' 
stating that it is undefined, and suggesting that a definition be 
implemented through new rulemaking.
    Response: The requirement for NMFS to ensure that no single entity 
gains an excessive share of the voting privileges is analogous to a 
similar provision in the Magnuson-Stevens Act regarding limited access 
privilege programs (LAPPs). The maximum share limit has to be set 
relative to the fishery for which the IFQ program is being proposed; 
NMFS will not define the term ``excessive share'' in the procedures and 
guidelines, but will apply the term analogously with its usage in 
section 303A of the Magnuson-Stevens Act. The Council will have to 
determine a standard for excessive share specific to each proposed IFQ 
program. NMFS will consider the Council's standard for excessive share 
when applying the term to the referendum and when determining if the 
referendum is likely to be fair and equitable.
    Comment 10: One commenter proposed to preclude certain non-vessel 
entities that may hold permits from participating in a referendum. The 
respondent specifically mentioned non-profit organizations and permit 
banks as the sorts of entities that should be excluded. The argument 
for the exclusion is that such entities do not represent traditional, 
historic, and cultural participation, and economic investment in 
fisheries.
    Response: By design, consistent with the general provisions of 
section 303A of the Magnuson-Stevens Act, the procedures and guidelines 
for conducting an IFQ referendum are general so that they may be 
applied to all New England and Gulf of Mexico fisheries and support a 
wide range of Council priorities. The procedures and guidelines do not 
aim to exclude or place at a disadvantage any entity in the fishing 
community.
    The eligibility criteria for each IFQ referendum will be developed 
by the Councils through their public processes and will likely be based 
on the IFQ program proposal itself. The exclusion of any type of 
entity, including non-profit organizations and permit banks, from the 
referendum will have to be fully justified by the Councils in their 
referendum initiation requests.
    Comment 11: A commenter from New England suggested that vote 
weighting could be used to limit the relative influence of non-vessel 
entities, such as permit banks, that own large blocks of permits.
    Response: NMFS acknowledges this point. Vote weighting will be 
available to the Councils and may be applied in the referendum, so long 
as the recommended weighting criteria are rationally connected to the 
proposed IFQ program and meet NMFS's other considerations for 
determining that a referendum is likely to be fair and equitable. If 
the Councils choose to recommend vote weighting, the referendum 
initiation request must justify the weighting criteria and analyze 
alternatives to the recommended criteria.
    Comment 12: The rule would require that the referendum ballot seek 
approval or disapproval of the IFQ program proposal. The rule also 
allows that, after an IFQ proposal fails to be approved by referendum, 
the Council may make changes to the program proposal or explain a 
change of circumstances in the fishery that would warrant an additional 
referendum, and request that NMFS conduct a subsequent referendum. One 
commenter, a proponent of IFQs, suggested that the rule provide for the 
referendum ballot to include survey questions in order to direct 
changes to the IFQ program proposal, should the initial referendum 
fail.
    Response: NMFS does not support this recommendation. Section 
303A(c)(6)(D) of the Magnuson-Stevens Act requires that the referendum 
consider the IFQ program proposal ``as

[[Page 75972]]

ultimately developed.'' NMFS will not publish a final rule on referenda 
procedures for a specific fishery until the Council has solicited and 
considered public comment and selected preferred alternatives for a 
proposed IFQ program. The purpose of the referendum is to determine 
approval or disapproval of the proposed IFQ program, rather than as a 
mechanism to solicit feedback on the specific alternatives of the 
program.
    However, should NMFS and the Council(s) decide that additional 
information would be helpful for further development of IFQ program 
proposals, NMFS may include additional IFQ program materials in the 
envelope when the ballot is distributed to eligible voters. Survey 
questions or supplemental information would be separate from the 
ballot, and submission of a completed survey would have no effect on 
the validity of the ballot.

Changes from the Proposed Rule

    The following table identifies substantive changes from the 
proposed rule that were made for purposes of clarification.

------------------------------------------------------------------------
                  Section                               Effect
------------------------------------------------------------------------
Sec.   600.1310(a)                           Notes that Sec.   600.1310
Purpose and scope of referenda                contains guidance on vote
                                              weighting as well as voter
                                              eligibility.
------------------------------------------------------------------------
Sec.   600.1310(b)(2)(v)                     Requires a Council
Initiating IFQ referenda                      recommending vote
                                              weighting to include the
                                              rationale and expected
                                              effects for such weighting
                                              in its letter requesting
                                              initiation of a
                                              referendum.
------------------------------------------------------------------------
Sec.   600.1310(c)(1)(iii)(C)                Clarifies that the
Permit holders and other fishery              developer of eligibility
 participants                                 criteria permit holders
                                              and other fishery
                                              participants must consider
                                              factors determined by the
                                              Council ``with
                                              jurisdiction over the
                                              fishery for which an IFQ
                                              program is proposed'' to
                                              be relevant.
------------------------------------------------------------------------
Sec.   600.1310(c)(2)(ii)(A) and (B)         Adds ``during the
Crew member eligibility in NEFMC IFQ          qualifying period(s)'' to
 referenda                                    (A) and changes ``the
                                              eligibility period(s)'' to
                                              ``the qualifying
                                              period(s)'' in (B).
------------------------------------------------------------------------
Sec.   600.1310(c)(2)(iii)(E)                Clarifies that the
Crew member eligibility in NEFMC IFQ          developer of eligibility
 referenda                                    criteria for fishery
                                              participants, including
                                              crew members, must
                                              consider any factors
                                              determined by the Council
                                              ``with jurisdiction over
                                              the fishery for which an
                                              IFQ program is proposed''
                                              to be relevant.
------------------------------------------------------------------------
Sec.   600.1310(c)(3)(iii)                   Clarifies that the
GMFMC's substantially fished criterion        developer of eligibility
                                              criteria for multispecies
                                              permit holders who have
                                              substantially fished the
                                              species, must consider any
                                              factors determined by the
                                              Council ``with
                                              jurisdiction over the
                                              fishery for which an IFQ
                                              program is proposed'' to
                                              be relevant.
------------------------------------------------------------------------
Sec.   600.1310(d)                           Substitutes the words
Council-recommended criteria                  ``apply the same'' for
                                              ``consider'' in ``A
                                              Council may also consider
                                              criteria for weighting
                                              eligible referendum
                                              votes''.
------------------------------------------------------------------------
Sec.   600.1310(h)(2) and (h)(3)             Changes from ``of those
Determining the outcome of an IFQ             voting submit valid
 referendum                                   ballots in favor of'' to
                                              ``of the votes submitted
                                              on valid ballots are in
                                              favor of''.
------------------------------------------------------------------------
a new Sec.   600.1310(g)(4)                  Stipulates that the value
Referenda ballots                             of weighted votes must be
                                              indicated on the ballot
                                              and a weighted vote must
                                              be cast as a single unit
                                              (i.e., the value may not
                                              be split). The full value
                                              must be applied to the
                                              selection made on the
                                              ballot. The old Sec.
                                              600.1310(g)(4) was
                                              renumbered as Sec.
                                              600.1310(g)(5).
------------------------------------------------------------------------

Also, other minor changes have been made to improve the clarity and 
readability of the regulatory text.

Classification

The Magnuson-Stevens Act

    The Assistant Administrator for Fisheries, NMFS, determined that 
this final rule is consistent with the Magnuson-Stevens Act as amended.

E.O. 12866

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

Regulatory Flexibility Act

    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) at 
the proposed rule stage, as required by section 603 of the Regulatory 
Flexibility Act, to describe the economic impacts the proposed 
regulation may have on small entities. Small entities within the scope 
of the rule include individual fish-harvesting vessels. NMFS intended 
the analysis to aid in the consideration of regulatory alternatives 
that could minimize the economic impact on affected small entities. No 
comments were received from the public on the IRFA or specific economic 
impacts of the proposed rule.
    This rule merely provides broad guidance and sets out procedures 
for subsequent rules with the intended effect of ensuring that IFQ 
program referenda are fair and equitable. While the benefits of 
ensuring that IFQ program referenda are fair and equitable are believed 
considerable; analysis of data and impacts on vessels, vessel revenues, 
port revenues, fish stock impacts, etc. is 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

[[Page 75973]]

applicable Federal law at the time fishery-specific program proposals 
are developed. NMFS did perform an analysis of this rule and did not 
find any basis to conclude that small business entities would be 
adversely affected by this rule. Therefore, NMFS is certifying non-
significance to the Chief Counsel for Advocacy of the Small Business 
Administration.
    A more-detailed description of the action, why it is being 
considered, and the legal basis for this action are contained in the 
preamble of the proposed rule (73 FR 21893).

Paperwork Reduction Act

    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: December 9, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons stated in the preamble, NMFS amends 50 CFR part 600 as 
follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

0
1. Add subpart O consisting of Sec. Sec.  600.1300 through 600.1310 to 
read as follows:
Subpart O--Limited Access Privilege Programs
Sec.
600.1300--600.1309 [Reserved]
600.1310 New England and Gulf of Mexico Individual Fishing Quota 
Referenda.

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

Subpart O--Limited Access Privilege Programs

Sec. Sec.  600.1300--600.1309 [Reserved]


Sec.  600.1310  New England and Gulf of Mexico Individual Fishing Quota 
Referenda.

    (a) Purpose and scope. This section establishes procedures and 
guidelines for referenda to be conducted on Individual Fishing Quota 
(IFQ) program proposals developed by the New England Fishery Management 
Council (NEFMC) and the Gulf of Mexico Fishery Management Council 
(GMFMC). These procedures and guidelines also apply to IFQ program 
proposals developed by NMFS for fisheries under the jurisdiction of the 
NEFMC or GMFMC, except for certain provisions that only apply to a 
fishery management council. This section provides guidance on 
developing voter eligibility and vote weighting, 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 create 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 relevant Council must have held public hearings on the FMP 
or FMP amendment in which the IFQ program is proposed;
    (ii) The relevant Council must have considered public comments on 
the proposed IFQ program;
    (iii) The relevant 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;
    (v) The letter requesting initiation of a referendum must recommend 
voter eligibility criteria that are consistent with the applicable 
requirements of paragraph (c)(1) of this section 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 provisions of this section. If a Council recommends 
vote weighting criteria, the letter should fully describe the rationale 
for and the expected effects of such weighting on the referendum;
    (vi) NEFMC referenda initiation letters must: recommend criteria 
that are consistent with paragraph (c)(2)(iii) of this section for NMFS 
to use in determining the eligibility of other fishery participants to 
vote in the referendum; include the minimum percentage of a crew 
member's total income that must have been earned during the eligibility 
periods in the proposed IFQ fishery as discussed in paragraph 
(c)(2)(ii) of this section; and include criteria for ``referendum 
eligible vessels'' as described in paragraph (c)(2)(i) of this section; 
and
    (vii) 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 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.
    (ii) Holders of multispecies permits in the Gulf of Mexico must 
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 eligibility criteria for permit holders in an 
IFQ program referendum, the relevant Council or Secretary must 
consider, but is 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 with 
jurisdiction over the fishery for which an IFQ program is proposed 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 this section, ``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.
    (ii) To be eligible to vote in an NEFMC IFQ referendum, crew 
members must meet the following requirements:
    (A) The crew member must have worked aboard a referendum-eligible 
vessel at sea, during the qualifying period(s), while the vessel was 
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 qualifying 
periods. Documents that may

[[Page 75974]]

be required 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 documentary evidence of the 
period of employment and the vessel upon which the crew member worked;
    (C) During the qualifying period(s), 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 
determined to be significant relative to the economic value and 
employment practices of the fishery; and
    (D) Any additional eligibility criteria promulgated by the NMFS.
    (iii) When developing criteria for determining whether other 
fishery participants, including crew members, may participate in a 
NEFMC IFQ referendum, the Council or Secretary 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;
    (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 
criteria for identifying those multispecies permit holders who have 
substantially fished the species to be included in the IFQ program 
proposal, the Council or Secretary 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 with jurisdiction 
over the fishery for which an IFQ program is proposed to be relevant to 
the fishery and the proposed IFQ program.
    (d) Council-recommended criteria under paragraph (c) of this 
section 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 apply the 
same criteria for weighting eligible referendum votes.
    (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 and other 
provisions of the Magnuson-Stevens 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 and other provisions of the Magnuson-Stevens 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 and other provisions of the Magnuson-Stevens 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 (c)(2) and (3) of this section, 
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.
    (i) Proposed rule. A proposed rule shall seek public comment on the 
specific schedule, procedures, and other requirements for the 
referendum process.
    (A) 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.
    (B) For GMFMC IFQ program referenda for 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.
    (ii) Final rule. (A) 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.
    (B) 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.
    (2) NMFS shall notify the public in the region of the subject 
fishery of the referendum eligibility criteria.
    (3) Individuals who wish to vote as other fishery participants in a 
NEFMC IFQ referendum, based on criteria established by the NEFMC under 
(c)(2), must contact NMFS and produce all required documentation and 
certifications to receive a ballot. NMFS

[[Page 75975]]

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 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) If votes are weighted, the value of weighted votes shall be 
indicated on the ballot. The weighted vote must be cast as a single 
unit. Its value may not be split. The full value must be applied to the 
selection made on the ballot.
    (5) 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 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 the votes submitted on valid ballots are in 
favor of the referendum question.
    (3) A GMFMC IFQ program referendum shall be considered approved 
only if a majority of the votes submitted on valid ballots are 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. E8-29650 Filed 12-12-08; 8:45 am]
BILLING CODE 3510-22-S