[Federal Register Volume 76, Number 147 (Monday, August 1, 2011)]
[Proposed Rules]
[Pages 45742-45756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19415]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 0808041037-81092-02]
RIN 0648-AX05


Fisheries of the Northeastern United States; Atlantic Mackerel, 
Squid, and Butterfish Fisheries; Amendment 11

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

ACTION: Proposed rule, request for comments.

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SUMMARY: NMFS proposes regulations to implement measures in Amendment 
11 to the Atlantic Mackerel, Squid, and Butterfish (MSB) Fishery 
Management Plan (FMP). Amendment 11 was developed by the Mid-Atlantic 
Fishery Management Council (Council) to establish a tiered limited 
access program for the Atlantic mackerel (mackerel) fishery, and to 
make other changes to the management of the MSB fisheries. The 
Amendment 11 management measures include: A limited access program for 
mackerel; an open access incidental catch permit for mackerel; an 
update to essential fish habitat (EFH) designations for all life stages 
of mackerel, Loligo squid, Illex squid, and butterfish; and the 
establishment of a recreational allocation for mackerel. This rule also 
proposes minor, technical corrections to the existing regulations 
pertaining to the MSB fisheries.

DATES: Public comments must be received no later than 5 p.m., eastern 
standard time, on September 15, 2011.

ADDRESSES: Copies of supporting documents used by the Mid-Atlantic 
Fishery Management Council (Council), including the Environmental 
Assessment (EA) and Regulatory Impact Review (RIR)/Initial Regulatory 
Flexibility Analysis (IRFA), are available from: Dr. Christopher M. 
Moore, Executive Director, Mid-Atlantic Fishery Management Council, 
Room 2115, Federal Building, 300 South New Street, Dover, DE 19904-
6790. The EA/RIR/IRFA is accessible via the Internet at http://www.nero.noaa.gov.
    You may submit comments, identified by 0648-AX05, by any one of the 
following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal http://www.regulations.gov;

[[Page 45743]]

     Fax: (978) 281-9135, Attn: Aja Szumylo;
     Mail to NMFS, Northeast Regional Office, 55 Great Republic 
Dr., Gloucester, MA 01930. Mark the outside of the envelope ``Comments 
on MSB Amendment 11.''
    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 (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to NMFS, Northeast Regional Office and 
by e-mail to [email protected], or fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Aja Szumylo, Fishery Policy Analyst, 
978-281-9195, fax 978-281-9135.

SUPPLEMENTARY INFORMATION: 

Background

    The Council has considered a limited access program for the 
mackerel fishery on multiple occasions since 1992, with the most recent 
control date set as July 5, 2002 (67 FR 44792, later reaffirmed on June 
9, 2005, 70 FR 33728). The Council initially notified the public of its 
intent to consider the impacts of alternatives for limiting access to 
the mackerel fishery in a Notice of Intent to Prepare a Supplemental 
Environmental Impact Statement (SEIS) for Amendment 9 to the MSB FMP 
(Amendment 9) on March 4, 2005 (70 FR 10605). The Council subsequently 
conducted scoping meetings in March 2005 on the development of a 
limited access program through Amendment 9. However, due to unforeseen 
delays in the development of Amendment 9, the Council notified the 
public on December 19, 2005 (70 FR 75114), that the mackerel limited 
access program would instead be analyzed in Amendment 11. The Council 
notified the public on February 27, 2007 (75 FR 8693), that it would 
begin the development of Amendment 11 in an SEIS, and finally notified 
the public on August 11, 2008 (73 FR 46590), that it would be necessary 
to prepare a full environmental impact statement (EIS) for Amendment 
11. During further development of Amendment 11, the Council determined 
that the additional issues, namely updates to EFH designations and 
recreational allocations for the mackerel fishery, would also be 
considered.
    The Council conducted public hearings in February 2010 and was 
originally scheduled to take final action on Amendment 11 in April of 
2010, but decided to revise certain alternatives after reviewing public 
comment. The revisions were deemed to require a Supplement to the Draft 
Environmental Impact Statement (SDEIS) and an additional comment period 
through October 12, 2010.
    This action proposes management measures that were recommended by 
the Council in Amendment 11. If implemented, these management measures 
would:
     Implement a three-tiered limited access system, with 
vessels grouped based on the following landings thresholds, with all 
qualifiers required to have possessed a valid permit on March 21, 2007. 
A vessel must have landed at least 400,000 lb (181.44 mt) in any one 
year 1997-2005 to qualify for a Tier 1 permit; at least 100,000 lb 
(45.36 mt) in any one year March 1, 1994--December 31, 2005, to qualify 
for a Tier 2 permit; or at least 1,000 lb (0.45 mt) in any one year 
March 1, 1994--December 31, 2005, to qualify for a Tier 3 permit, with 
Tier 3 allocated up to 7 percent of the commercial quota, through the 
specifications process;
     Establish an open access permit for all other vessels;
     Establish trip limits for all tiers annually through the 
specifications process, with possession limits initially set as 
unlimited for Tier 1; 135,000 lb (61.23 mt) for Tier 2; 100,000 lb 
(45.36 mt) for Tier 3; and 20,000 lb (9.07 mt) for open access;
     Establish permit application, permit appeal, vessel 
baseline, and vessel upgrade, replacement, and confirmation of permit 
history provisions similar to established for other Northeast region 
limited access fisheries;
     Establish a 10-percent maximum volumetric fish hold 
upgrade for Tier 1 and Tier 2 vessels;
     Allow vessel owners to retain mackerel fishing history in 
a purchase and sale agreement and use the history to qualify a 
different vessel for a mackerel permit (permit splitting);
     Require Tier 3 vessels to submit VTRs on a weekly basis;
     Designate as EFH the area associated with 90 percent of 
survey catch for each life stage of non-overfished species and the area 
associated with 95 percent of survey catch for each life stage of 
overfished or status unknown species (i.e., butterfish, mackerel, 
Loligo squid, and Illex squid); and
     Establish an annual recreational mackerel allocation 
equaling 6.2 percent of the mackerel allowable biological catch.
    The Council took final action on October 13, 2010, and submitted 
Amendment 11 for NMFS review on May 12, 2011. A Notice of Availability 
(NOA) for Amendment 11, as submitted by the Council for review by the 
Secretary of Commerce, was published in the Federal Register on July 6, 
2011 (76 FR 39374). The comment period on Amendment 11 ends on 
September 6, 2011. In addition to the implementing measures proposed in 
this rule, Amendment 11 contains changes in the EFH designations for 
MSB species that are not reflected in the regulations.

Proposed Measures

    The proposed regulations are based on the measures in Amendment 11. 
NMFS has noted several instances where it has interpreted the language 
in Amendment 11 to account for any missing details in the Council's 
description of the proposed measures. In addition, some of the proposed 
regulations in Amendment 11 are associated with the Council's Omnibus 
Annual Catch Limit and Accountability Measures (ACL/AM) Amendment, for 
a proposed rule which published on June 17, 2011 (76 FR 35578). Several 
sections of regulatory text are affected by both actions. The proposed 
regulations for both actions will present adjustments to the existing 
regulatory text. In the likely event that the Omnibus ACL/AM Amendment 
is finalized prior to Amendment 11, the finalized regulations for 
Amendment 11 will be presented as modifications to the regulations that 
will be implemented in the Omnibus ACL/AM Amendment, and will thus 
differ in structure, but not content, from the regulations presented in 
this proposed rule. The adjustments will be similar to those in this 
proposed rule. NMFS seeks comments on all of the measures in Amendment 
11.

1. Limited Access Mackerel Permits and Trip Limits

    Amendment 11 would implement a three-tiered limited access permit 
system for the mackerel fishery. Vessels that do not qualify for a 
limited access mackerel permit would still be able to

[[Page 45744]]

receive the open access mackerel permit described below. The initial 
trip limits proposed for each permit category below would be adjustable 
through the specifications process.
    In order to be eligible for a limited access mackerel permit, 
applicants would have to meet both a permit history requirement and a 
landings requirement. The permit history requirement and landings 
requirement must be derived from the same vessel (i.e., it is not 
possible to combine the permit criteria from Vessel A with the landings 
criteria from Vessel B to create a mackerel eligibility).
    To qualify for a Tier 1 Limited Access Mackerel permit, a vessel 
must have been issued a Federal mackerel permit that was valid on March 
21, 2007, and must have landed at least 400,000 lb (181.44 mt) of 
mackerel in any one year between January 1, 1997, and December 31, 
2005, as verified by NMFS records or documented through dealer receipts 
submitted by the applicant. The Tier 1 Limited Access Mackerel permit 
would allow such vessels to possess and land unlimited amounts of 
mackerel.
    To qualify for a Tier 2 Limited Access Mackerel permit, a vessel 
must have been issued a Federal mackerel permit that was valid on March 
21, 2007, and must have landed at least 100,000 lb (45.36 mt) of 
mackerel in any one year between March 1, 1994, and December 31, 2005, 
as verified by NMFS records or documented through dealer receipts 
submitted by the applicant. The Tier 2 Limited Access Mackerel permit 
would allow such vessels to possess and land 135,000 lb (61.23 mt) of 
mackerel per trip.
    To qualify for a Tier 3 Limited Access Mackerel permit, a vessel 
must have been issued a Federal mackerel permit that was valid on March 
21, 2007, and must have landed at least 1,000 lb (0.45 mt) of mackerel 
in any one year between March 1, 1994, and December 31, 2005, as 
verified by NMFS records or documented through dealer receipts 
submitted by the applicant. The Tier 3 Limited Access Mackerel permit 
would allow such vessels to possess and land 100,000 lb (45.36 mt) of 
mackerel per trip.
    The current regulations state that during a closure of the directed 
mackerel fishery that occurs prior to June 1, vessels issued a mackerel 
permit may not fish for, possess, or land more than 20,000 lb (9.08 mt) 
of mackerel per trip, and that during any closure that occurs after 
June 1, vessels may not fish for, possess, or land more than 50,000 lb 
(22.7 mt) of mackerel per trip. This provision would be maintained for 
limited access mackerel permit holders.

2. Limited Access Vessel Permit Provisions

    Amendment 11 would establish measures to govern future transactions 
related to limited access vessels, such as purchases, sales, or 
reconstruction. These measures would apply to all limited access 
mackerel vessels. Except as noted, the provisions proposed in this 
amendment are consistent with those that govern most of the other 
Northeast region limited access fisheries; there are some differences 
in the limited access program for American lobster.
Initial Eligibility and Application
    Initial eligibility for a mackerel limited access permit would have 
to be established during the first year after the implementation of 
Amendment 11. A vessel owner would required to submit an application 
for a mackerel limited access permit within 12 months of the effective 
date of the final regulations. In order to expedite the transition to 
the limited access mackerel program, NMFS would require applicants 
wishing to fish for mackerel with a limited access permit after January 
1, 2012, to submit an application at least 30 days prior to the start 
of the 2012 fishing year (November 30, 2011). After January 1, 2012, 
current mackerel permit holders who have not yet submitted an 
application for a limited access mackerel permit, and individuals who 
have submitted incomplete or unsuccessful applications for a limited 
access mackerel permit, would automatically be re-designated as open 
access permit holders under the new mackerel permit system, and would 
be subject to the open access possession limit described in this 
proposed rule. All applicants would have until December 31, 2012, to 
submit an initial application.

Initial Confirmation of Permit History (CPH) Application

    A person who does not currently own a fishing vessel, but who has 
owned a qualifying vessel that has sunk, been destroyed, or transferred 
to another person, and the applicant has lawfully retained the valid 
mackerel permit and fishing history, would be required to apply for and 
receive a CPH. To be eligible to obtain a CPH, the applicant would have 
to show that the qualifying vessel meets the eligibility requirements 
for the limited access mackerel permit in question, and that all other 
permit restrictions described below are satisfied. If the vessel sank, 
was destroyed, or was transferred before March 21, 2007, the permit 
issuance criteria may be satisfied if the vessel was issued a valid 
Federal mackerel permit at any time between March 21, 2006, and March 
21, 2007.
    Issuance of a valid CPH would preserve the eligibility of the 
applicant to apply for a limited access permit for a replacement vessel 
based on the qualifying vessel's fishing and permit history at a 
subsequent time. A CPH would have to be applied for in order for the 
applicant to preserve the limited access eligibility of the qualifying 
vessel. Vessel owners who were issued a CPH could obtain a vessel 
permit for a replacement vessel, consistent with the vessel size 
upgrade restrictions, based upon the vessel length, tonnage, and 
horsepower of the vessel on which the CPH issuance is based.
    The Amendment 11 document is unclear regarding application deadline 
for vessels applying to receive a CPH during the application period. 
The document states that applications for CPH would have to be 
submitted no later than 30 days prior to the end of the first full 
permit year in which a vessel permit cannot be issued. This would mean 
that, if the limited access program is effective on January 1, 2012, 
applicants applying directly into CPH would only have until March 31, 
2012 (30 days before the end of the permit year) to apply for a CPH, 
while applicants applying for an active mackerel permit would have 
until December 31, 2012, to apply. NMFS clarifies that applicants 
wishing to place their limited access mackerel permit directly into CPH 
will be given the same initial application deadline as applicants 
applying for an active limited access mackerel permit, namely from 
January 1, 2012, to December 31, 2012.

Landings History

    NMFS will use dealer data in NMFS's database to determine 
eligibility. If NMFS data do not demonstrate that a vessel made 
landings of mackerel that satisfy the eligibility criteria for a 
limited access permit, applicants would have to submit dealer receipts 
that verify landings, or use other sources of information (e.g., joint 
venture receipts) to demonstrate that there is incorrect or missing 
information in the Federal dealer records via the appeals process 
described below.
    Amendment 11 does not specify a method for dividing qualifying 
landings between vessels that fished cooperatively for mackerel in pair 
trawl operations that wish to each use a subset of shared landings 
history to qualify individual vessels. NMFS proposes that owners of 
pair trawl vessels may divide the catch history

[[Page 45745]]

between the two vessels in the pair through third party verification 
and supplemental information, such as previously submitted VTRs, or 
dealer reporting. The two owners must apply for a limited access 
mackerel permit jointly and must submit proof that they have agreed to 
the division of landings. This approach was used to qualify pair trawl 
vessels in Amendment 1 to the Atlantic Herring FMP.

Permit Transfers

    An Atlantic mackerel limited access permit and fishing history 
would be presumed to transfer with a vessel at the time it is bought, 
sold, or otherwise transferred from one owner to another, unless it is 
retained through a written agreement signed by both parties in the 
vessel sale or transfer.

Multiple Vessels With One Owner

    The Council proposed a provision specific to multiple vessel 
ownership, qualification, and replacement. The provision states that, 
if an individual owns more than one vessel, but only one of those 
vessels has the permit and landings history required to be eligible for 
a limited access mackerel permit, the individual can replace the vessel 
that it determined to be eligible with one of his/her other vessels, 
provided that the replacement vessel complies with the upgrade 
restrictions detailed below. The proposed rule does not contain a 
regulation specific to the Council's proposed measure. Rather, the 
individual regulations pertaining to qualification, baselines, 
upgrades, and vessel replacements separately address the Council's 
proposed measure.
    This provision would not exempt owners of multiple vessels from the 
permit splitting provision, described below. For example, if a vessel 
owner has a limited access multispecies permit on the same vessel that 
created the mackerel eligibility, the entire suite of permits would 
need to be replaced onto the owner's other vessel in order to move the 
mackerel eligibility. In addition, if an individual owns two vessels, a 
50-ft (15.2 m) vessel with a mackerel eligibility, and a 65-ft (19.8 m) 
vessel, he would not be able to move the mackerel eligibility onto the 
larger vessel, because it is outside of the vessel upgrade 
restrictions.

Permit Splitting

    Amendment 11 adopts the permit splitting provision currently in 
effect for other limited access fisheries in the region. Therefore, a 
limited access mackerel permit may not be issued to a vessel if the 
vessel's permit history was used to qualify another vessel for any 
other limited access permit. This means all limited access permits, 
including limited access mackerel permits, must be transferred as a 
package when a vessel is replaced or sold.
    However, Amendment 11 explicitly states that the permit-splitting 
provision would not apply to the retention of an open access mackerel 
permit and fishing history that occurred prior to April 3, 2009, if any 
limited access permits were issued to the subject vessel. Thus, vessel 
owners who sold a vessel with limited access permits and retained the 
open access mackerel permit and landings history prior to April 3, 
2009, with the intention of qualifying a different vessel for a limited 
access mackerel permit, would be allowed to do so under Amendment 11. 
This differs from the current permit splitting provisions of other 
limited access fishery regulations, specifically the Atlantic herring 
limited access permit splitting provision implemented under Amendment 1 
to the Atlantic Herring FMP. It is consistent with permit splitting 
provisions implemented for the scallop limited access general category 
permit program.

Qualification Restriction

    Consistent with previous limited access programs, no more than one 
vessel would be able to qualify, at any one time, for a limited access 
permit or CPH based on that or another vessel's fishing and permit 
history, unless more than one owner has independently established 
fishing and permit history on the vessel during the qualification 
period and has either retained the fishing and permit history, as 
specified above, or owns the vessel at the time of initial application 
under Amendment 11. If more than one vessel owner claimed eligibility 
for a limited access permit or CPH, based on a vessel's single fishing 
and permit history, the NMFS Regional Administrator would determine who 
is entitled to qualify for the permit or CPH based on information 
submitted and in compliance with the applicable permit provisions.

Appeal of Permit Denial

    Amendment 11 specifies an appeals process for applicants who have 
been denied a limited access Atlantic mackerel permit. Applicants would 
have two opportunities to appeal the denial of a limited access 
mackerel permit. The review of initial application denial appeals would 
be conducted under the authority of the Regional Administrator at 
NMFS's Northeast Regional Office. The review of second denial appeals 
would be conducted by a hearing officer appointed by the Regional 
Administrator, or through a National Appeals program, which is under 
development by NMFS and may be utilized for mackerel appeals.
    An appeal of the denial of an initial permit application (first 
level of appeal) must be made in writing to the NMFS Northeast Regional 
Administrator. Under this amendment, appeals would be based on the 
grounds that the information used by the Regional Administrator in 
denying the permit was incorrect. The only items subject to appeal 
under this limited access program would be the accuracy of the amount 
of landings, and the correct assignment of landings to a vessel and/or 
permit holder. Amendment 11 would require appeals to be submitted to 
the Regional Administrator, postmarked no later than 30 days after the 
denial of an initial limited access mackerel permit application. The 
appeal must be in writing, must state the specific grounds for the 
appeal, the limited access mackerel permit category for which the 
applicant believes he should qualify, and information to support the 
appeal. The appeal shall set forth the basis for the applicant's belief 
that the Regional Administrator's decision was made in error. The 
appeal would not be reviewed without submission of information in 
support of the appeal. The Regional Administrator would appoint a 
designee to make the initial decision on the appeal.
    Should the appeal be denied, the applicant would be allowed to 
request a review of the Regional Administrator's appeal decision 
(second level of appeal). Such a request must be in writing postmarked 
no later than 30 days after the appeal decision, must state the 
specific grounds for the appeal, and must include information to 
support the appeal. A hearing would not be conducted without submission 
of information in support of the appeal. If the request for review of 
the appeal decision is not made within 30 days, the appeal decision is 
the final administrative action of the Department of Commerce. If the 
National Appeals process is not fully established, the Regional 
Administrator will appoint a hearing officer. The hearing officer would 
make findings and a recommendation to the Regional Administrator, which 
would be advisory only. The Regional Administrator's decision is the 
final administrative action of the Department of Commerce.
    The owner of a vessel denied a limited access mackerel permit could 
fish for mackerel, provided that the denial has been appealed, the 
appeal was pending, and the vessel had on

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board a letter from the Regional Administrator authorizing the vessel 
to fish under the limited access category for which the applicant has 
submitted the appeal. The Regional Administrator would issue such a 
letter for the pendency of any appeal. If the appeal is ultimately 
denied, the Regional Administrator would send a notice of final denial 
to the vessel owner; and the authorizing letter would become invalid 5 
days after the receipt of the notice of denial.

Establishing Vessel Baselines

    A vessel's baseline refers to those specifications (length overall, 
gross registered tonnage (GRT), net tonnage (NT), and horsepower (HP)) 
from which any future vessel size change is measured. The vessel 
baseline specifications for vessels issued a limited access mackerel 
permits would be the specifications of the vessel that was initially 
issued the limited access permit as of the date that the vessel 
qualifies for such a permit. If a vessel owner is initially issued a 
CPH instead of a mackerel permit, the attributes of the vessel that is 
the basis of the CPH would establish the size baseline against which 
future vessel limitations would be evaluated. If the vessel that 
established the CPH is less than 20 ft (6.09 m) in length, then the 
baseline specifications associated with other limited access permits in 
the CPH suite will be used to establish the mackerel baseline 
specifications. If the vessel that established the CPH is less than 20 
ft (6.09 m) in length, the limited access mackerel eligibility was 
established on another vessel, and there are no other limited access 
permits in the CPH suite, then the applicant must submit valid 
documentation of the baseline specifications of the vessel that 
established the eligibility. If a vessel owner applying for a CPH has a 
contract to purchase a vessel to replace the vessel for which CPH was 
issued prior to the submission of the mackerel limited access permit 
application (for the CPH), then the contracted vessel would form the 
baseline specifications for that vessel, provided an initial 
application for the contract vessel to replace the vessel for which the 
CPH was issued is received by December 31, 2012 (1 full year after the 
end of the proposed initial application period).

Vessel Upgrades

    A vessel could be upgraded in size, whether through retrofitting or 
replacement, and be eligible to retain or renew a limited access 
permit, only if the upgrade complies with the limitations in Amendment 
11. The vessel's HP could be increased only once, whether through 
refitting or vessel replacement. Such an increase could not exceed 20 
percent of the vessel's baseline specifications. The vessel's length, 
GRT, and NT could be increased only once, whether through refitting or 
vessel replacement. Any increase in any of these three specifications 
of vessel size could not exceed 10 percent of the vessel's baseline 
specifications. If any of these three specifications is increased, any 
increase in the other two must be performed at the same time. This type 
of upgrade could be done separately from an engine HP upgrade. 
Amendment 11 maintains the existing specification of maximum length, 
size and HP for vessels engaged in the Atlantic mackerel fishery (165 
ft (50.02 m), 75 GRT (680.3 mt), and 3,000 HP). Tier 1 and Tier 2 
vessels must also comply with the upgrade restrictions relevant to the 
vessel hold volume certification described below.

Vessel Hold Capacity Certification

    In addition to the standard baseline specifications, Tier 1 and 
Tier 2 vessels would be required to obtain a fish hold capacity 
measurement from a certified marine surveyor. The hold capacity 
measurement submitted at the time of application for a Tier 1 or Tier 2 
limited access mackerel permit would serve as an additional permit 
baseline for these permit categories. The hold volume for at Tier 1 or 
Tier 2 permit could only be increased once, whether through refitting 
or vessel replacement. Any increase could not exceed 10 percent of the 
vessel's baseline hold measurement. This type of upgrade could be done 
separately from the size and HP upgrades.
    Amendment 11 does not specify how a hold capacity baseline should 
be established for vessels whose permits go directly into CPH. In cases 
where the qualifying vessel has sunk or been destroyed, it will not be 
feasible for the applicant to obtain a hold capacity certification. 
NMFS proposes that the hold capacity baseline for such vessels will be 
the hold capacity of the first replacement vessel after the permits are 
removed from CPH.

Vessel Replacements

    The term ``vessel replacement,'' in general, refers to replacing an 
existing limited access vessel with another vessel. In addition to 
addressing increases in vessel size, hold capacity, and HP, Amendment 
11 would establish a restriction that requires that the same entity 
must own both the limited access vessel (permit and fishing history) 
that is being replaced, and the replacement vessel.

Voluntary Relinquishment of Eligibility

    Amendment 11 includes a provision to allow a vessel owner to 
voluntarily exit a limited access fishery. Such relinquishment would be 
permanent. In some circumstances, it could allow vessel owners to 
choose between different permits with different restrictions without 
being bound by the more restrictive requirement (e.g., lobster permits 
holders may choose to relinquish their other Northeast Region limited 
access permits to avoid being subject to the reporting requirements 
associated with those other permits). If a vessel's limited access 
permit history for the mackerel fishery is voluntarily relinquished to 
the Regional Administrator, no limited access permit for that fishery 
may be reissued or renewed based on that vessel's history.

Permit Renewals and CPH Issuance

    Amendment 11 specifies that a vessel owner must maintain the 
limited access permit status for an eligible vessel by renewing the 
permits on an annual basis or applying for the issuance of a CPH. A CPH 
is issued to a person who does not currently own a particular fishing 
vessel, but who has legally retained the fishing and permit history of 
the vessel for the purposes of transferring it to a replacement vessel 
at a future date. The CPH provides a benefit to a vessel owner by 
securing limited access eligibility through a registration system when 
the individual does not currently own a vessel.
    A vessel's limited access permit history would be cancelled due to 
the failure to renew, in which case, no limited access permit could 
ever be reissued or renewed based on the vessel's history or to any 
other vessel relying on that vessel's history. All limited access 
permits must be issued on an annual basis by the last day of the 
fishing year for which the permit is required, unless a CPH has been 
issued. A complete application for such permits must be received no 
later than 30 days before the last day of the permit year.

3. Tier 3 Allocation and Additional Reporting Requirements

    Amendment 11 proposes an allocation for participants in the limited 
access mackerel fishery that hold a Tier 3 permit. Tier 3 would be 
allocated a maximum catch of up to 7 percent of the commercial mackerel 
quota (the remainder of the commercial mackerel quota would be 
available to Tier 1 or Tier 2 vessels). The Tier 3 allocation would be 
set annually during the

[[Page 45747]]

specifications process. NMFS presumes that, during a closure of the 
Tier 3 mackerel fishery that occurs prior to June 1, vessels issued a 
mackerel permit may not fish for, possess, or land more than 20,000 lb 
(9.08 mt) of mackerel per trip, and that during a closure that occurs 
after June 1, vessels may not fish for, possess, or land more than 
50,000 lb (22.7 mt) of mackerel per trip. In order to monitor Tier 3 
landings, Amendment 11 would require vessels that hold a Tier 3 limited 
access mackerel permit to submit vessel trip reports (VTRs) on a weekly 
basis.

4. Open Access Permit and Possession Limit

    Any vessel could be issued an open access mackerel permit that 
would authorize the possession and landing of up to 20,000 lb (9.07 mt) 
of mackerel per trip. The open access possession limit would stay the 
same during a closure of the directed mackerel fishery.

5. Updates to EFH Definitions

    Section 600.815(a)(9) of the final rule to revise the regulations 
implementing the EFH provisions of the Magnuson-Stevens Act requires a 
complete review of EFH information at least once every 5 years. With 
the exception of the establishment of Loligo egg EFH in Amendment 9 to 
the MSB FMP in 2008, the EFH information for MSB fisheries has not been 
updated since the original analysis and designations were done for 
Amendment 8 to the MSB FMP (Amendment 8) in 1998. Amendment 11 would 
revise the EFH text descriptions for all MSB species based on updated 
data from the Northeast Fishery Science Center (NEFSC) trawl survey, 
the Marine Resources Monitoring Assessment and Prediction Program 
(MARMAP), state bottom trawl surveys, NOAA's Estuarine Living Marine 
Resources (ELMR) program, and scientific literature on habitat 
requirements. Amendment 11 would designate as EFH the area associated 
with 90 percent of the cumulative geometric mean catches for non-
overfished species, and the area associated with 95 percent of the 
cumulative geometric mean catches for unknown or overfished species. 
All MSB species currently fall in the latter category. Text 
descriptions and maps for the new proposed EFH designation can be found 
in Amendment 11.

6. Recreational Mackerel Allocation

    Amendment 11 proposes an allocation to the recreational fishery in 
order to incorporate recreational mackerel ACLs/AMs into the framework 
for the Council's Omnibus ACL/AM Amendment. The recreational allocation 
would be set equal to 6.2 percent of the domestic mackerel allowable 
biological catch (ABC). This allocation corresponds to the proportion 
of total U.S. mackerel landings that was accounted for by the 
recreational fishery from 1997-2007 times 1.5. The Council would be 
able to take action via specifications, a framework adjustment, or 
amendment to adjust any disconnect between the recreational allocation 
and future recreational harvests.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the MSB FMP, other provisions of the Magnuson-Stevens 
Act, and other applicable law, subject to further consideration after 
public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This proposed rule contains collection-of-information requirements 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). Several of these 
requirements have been submitted to OMB for approval under the MSB 
Amendment 10 Family of Forms (OMB Control No. 0648-0601). Under the 
proposed limited access program, vessel owners would be required to 
submit to NMFS application materials to demonstrate their eligibility 
for a limited access permit. The public burden for the application 
requirement pertaining to the limited access program is estimated to 
average 45 min per application, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection information.
    Only 410 vessels are expected to qualify and consequently renew 
their limited access mackerel permits via the renewal application each 
year. The renewal application is estimated to take 30 min on average to 
complete. Up to 30 applicants are expected to appeal the denial of 
their permit application. The appeals process is estimated to take an 
average of 2 hr to complete. Vessels that qualify for a Tier 1 or Tier 
2 mackerel permit would be required to submit documentation of hold 
volume size. The Council estimated that 74 vessels would qualify for 
either a Tier 1 or Tier 2 limited access mackerel permit. Tier 1 and 2 
vessel owners will experience a time burden due to this requirement in 
the form of travel time to/from a certified marine surveyor. It is not 
possible to estimate a time burden associated with obtaining a hold 
volume measurement, as vessels would have to travel varying distances 
to visit certified marine surveyors. Travel time to a marine surveyor 
is not an information collection burden, so is not considered a 
response.
    Completion of a replacement or upgrade application requires an 
estimated 3 hr per response. It is estimated that no more than 40 of 
410 vessels possessing these permits will request a vessel replacement 
or upgrade annually. Completion of a CPH application requires an 
estimated 30 min per response. It is estimated that no more than 30 of 
the 410 vessels possessing these limited access permits will request a 
CPH annually.
    The proposed rule also modifies the VTR requirement for Tier 3 
mackerel vessel. All mackerel vessels are currently required to submit 
VTRs on a monthly basis; this requirement is currently approved under 
the Northeast Region Logbook Family of Forms (OMB Control No. 0648-
0212). This proposed rule would require vessels issued a Tier 3 
mackerel permit to submit VTRs on a weekly basis. A change request for 
this requirement has been submitted to OMB for approval. The public 
burden for the revised VTR requirement is expected to average 5 min for 
each additional VTR submission.
    Public comment is sought regarding: Whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to the 
Regional Administrator (see ADDRESSES), and email to [email protected] or fax to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.
    The Council prepared an IRFA, as required by section 603 of the 
Regulatory Flexibility Act (RFA). The IRFA describes the economic 
impact this proposed rule, if adopted, would

[[Page 45748]]

have on small entities. 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. A summary 
of the analysis follows. A copy of this analysis is available from the 
Council or NMFS (see ADDRESSES) or via the Internet at http://www.nero.noaa.gov.

Description and Estimate of Number of Small Entities to Which the Rule 
Will Apply

    The proposed measures in Amendment 11 would primarily affect 
participants in the mackerel fishery. All of the potentially affected 
businesses are considered small entities under the standards described 
in NMFS guidelines, because they have gross receipts that do not exceed 
$4 million annually. There were 2,331 vessels issued open access 
mackerel permits in 2010. The Small Business Administration (SBA) size 
standard for commercial fishing (NAICS code 114111) is $4 million in 
sales. Available data indicate that no single fishing entity earned 
more than $4 million annually. Although there are likely to be entities 
that, based on rules of affiliation, would qualify as large business 
entities, due to lack of reliable ownership affiliation data NMFS 
cannot apply the business size standard at this time. Data are 
currently being compiled on vessel ownership that should permit a more 
refined assessment and determination of the number of large and small 
entities in the mackerel fishery for future actions. For this action, 
since available data are not adequate to identify affiliated vessels, 
each operating unit is considered a small entity for purposes of the 
RFA, and, therefore, there is no differential impact between small and 
large entities. Therefore, there are no disproportionate economic 
impacts on small entities. Section 6.5 in Amendment 11 describes the 
vessels, key ports, and revenue information for the mackerel fishery, 
therefore, that information is not repeated here.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements Minimizing Significant Economic Impacts on Small Entities

    There will be an estimated 820 applications for a limited access 
mackerel permit. With an average processing time of 45 min, the total 
time burden for this application is 615 hr. Only 410 vessels are 
expected to qualify and consequently renew their permit via the renewal 
application each year. The renewal application is estimated to take 30 
min on average to process, for a burden of 205 hr. Up to 30 applicants 
are expected to appeal the denial of their permit application (other 
FMPs estimated between 5-7 percent of applications would move on to the 
appeal stage). The appeals process is estimated to take 2 hr to 
complete, on average, with a total burden of 60 hr. The 3-yr average 
total public cost burden for permit applications, appeals, and renewals 
is $261, which includes postage and copy fees for submissions.
    Each hold volume measurement done by a certified marine surveyor is 
estimated to cost $4,000. An estimated 74 vessels would qualify for 
either a Tier 1 or Tier 2 limited access mackerel permit, and would be 
required to submit a hold volume measurement at the time of permit 
issuance. Roughly 40 vessels are expected to upgrade or replace vessels 
each year, and would be required to submit a hold volume measurement 
for the upgraded or replacement vessel. Therefore, annual average cost 
over a 3-yr period is estimated to be $258,667 ($98,667 for annualized 
initial hold volume certifications, plus $160,000 for replacement hold 
volume certifications), not including travel expenses.
    New limited access mackerel vessels would be subject to the same 
replacement, upgrade, and permit history restrictions as other limited 
access vessels. Completion of a replacement or upgrade application 
requires an estimated 3 hr per response. It is estimated that no more 
than 40 of the 410 vessels possessing these limited access permits will 
request a vessel replacement or upgrade annually. This resultant burden 
would be up to 120 hr. Completion of a CPH application requires an 
estimated 30 min per response. It is estimated that owners of no more 
than 30 of the 410 vessels possessing a limited access mackerel permit 
will request a CPH annually. The resultant burden would be up to 15 hr. 
The total public cost burden for replacement, upgrade, and CPH 
applications is $140 for postage and copy fees.
    An estimated 329 Tier 3 limited access mackerel vessels would be 
required to submit VTRs on a weekly basis. Completion of a VTR is 
estimated to take 5 min per submission. The resultant burden would be 
1,151.5 hr. The total public cost burden for VTR submission is 
$5,790.40 for postage.

Economic Impacts of the Proposed Action Compared to Significant Non-
Selected Alternatives

Tiered Limited Access Program
    The FEIS estimates the numbers of vessel that would qualify for 
limited access permits under the different alternatives. In addition to 
the no action alternative and preferred alternative, six additional 
alternatives for tiered limited access programs, and two alternatives 
that would qualify participants in the Atlantic herring fishery for 
limited access mackerel permits. Information from the dealer weighout 
database was used to estimate how many vessels would qualify under each 
of the proposed limited access alternatives. The economic impacts of 
these alternatives on both individual vessels and the overall capacity 
of mackerel fleet is described in sections 5.1.4 and 7.5 of the FEIS 
and are summarized below.
    The composition of the qualifying group that results under each of 
the tiered limited access programs described in this segment changes 
based on each alternative. In most instances, the quota allocation and 
trip limit alternatives described below are averages or percentages 
based on the composition of the qualifying group. Accordingly, the Tier 
allocation and trip limit alternative sets described below are 
different for each of the tiered limited access program alternatives.
    Under the preferred alternative, 29 vessels would qualify for a 
Tier 1 permit, 45 vessels would qualify for a Tier 2 permit, and 329 
vessels would qualify for a Tier 3 permit, resulting in a total of 403 
vessels that would qualify for the various limited access mackerel 
permits. The preferred alternative would cap Tier 3 with a maximum 
allocation of up to 7 percent of the commercial mackerel quota, with no 
other additional allocations for any other Tiers. The economic impacts 
of the Tier allocations will be discussed separately from the structure 
of the limited access program.
    The eligibility criteria for a Tier 1 permit in Alternative 1B 
would have required a vessel to possess a mackerel permit and have 
landed at least 1,000,000 lb (453.6 mt) in any one year between January 
1, 1997, and December 31, 2007. To qualify for a Tier 2 permit, a 
vessel would have been required to possess a permit and have landed at 
least 100,000 lb (45.36 mt) between January 1, 1988, and December 31, 
2007. To qualify for a Tier 3 permit, a vessel would have been required 
to possess a permit and have landed at least 25,000 lb (11.34 mt) 
between January 1, 1988,

[[Page 45749]]

and December 31, 2007. Under Alternative 1B, 26 vessels would qualify 
for a Tier 1 permit, 64 vessels would qualify for a Tier 2 permit, and 
56 vessels would qualify for a Tier 3 permit, resulting in a total of 
146 vessels that would qualify for the various limited access mackerel 
permits.
    The eligibility criteria for a Tier 1 permit in Alternative 1C 
would have required a vessel to possess a mackerel permit and have 
landed at least 1,000,000 lb (453.6 mt) in any one year between January 
1, 1997, and December 31, 2007. To qualify for a Tier 2 permit, a 
vessel would have been required to possess a permit and have landed at 
least 100,000 lb (45.36 mt) between January 1, 1997, and December 31, 
2007. To qualify for a Tier 3 permit, a vessel would have been required 
to possess a permit and have landed at least 1,000 lb (.45 mt) between 
January 1, 1997, and December 31, 2007. As with the preferred 
alternative, 1C would have capped Tier 3 with a maximum allocation of 
up to 7 percent of the commercial mackerel quota, with no other 
additional allocations for any other Tiers. Under Alternative 1C, 26 
vessels would qualify for a Tier 1 permit, 36 vessels would qualify for 
a Tier 2 permit, and 309 vessels would qualify for a Tier 3 permit, 
resulting in a total of 371 vessels that would qualify for the various 
limited access mackerel permits.
    The eligibility criteria for a Tier 1 permit in Alternative 1E 
would have required a vessel to possess a mackerel permit and have 
landed at least 400,000 lb (181.44 mt) of mackerel in any one year 
between January 1, 1997, and December 31, 2005. To qualify for a Tier 2 
permit, a vessel would have been required to possess a permit and have 
landed at least 100,000 lb (45.36 mt) of mackerel in any one year 
between January 1, 1997, and December 31, 2005. To qualify for a Tier 3 
permit, a vessel would have been required to possess a permit and have 
landed at least 25,000 lb (11.34 mt) of mackerel in any one year 
between January 1, 1997, and December 31, 2007. Under Alternative 1E, 
29 vessels would qualify for a Tier 1 permit, 25 vessels would qualify 
for a Tier 2 permit, and 50 vessels would qualify for a Tier 3 permit, 
resulting in a total of 104 vessels that would qualify for the various 
limited access mackerel permits.
    The eligibility criteria for a Tier 1 permit in Alternative 1F 
would have required a vessel to possess a mackerel permit and have 
landed at least 1,000,000 lb (453.6 mt) in any one year between January 
1, 1997, and December 31, 2007. To qualify for a Tier 2 permit, a 
vessel would have been required to possess a permit and have landed at 
least 100,000 lb (45.36 mt) between January 1, 1988, and December 31, 
2007. To qualify for a Tier 3 permit, a vessel would have been required 
to possess a permit and have landed at least 10,000 lb (4.5 mt) between 
January 1, 1988, and December 31, 2007. Under Alternative 1F, 26 
vessels would qualify for a Tier 1 permit, 64 vessels would qualify for 
a Tier 2 permit, and 121 vessels would qualify for a Tier 3 permit, 
resulting in a total of 211 vessels that would qualify for the various 
limited access mackerel permits.
    Alternative 1G would implement a single-tiered limited access 
program for which 26 vessels would qualify. The eligibility criteria 
for a limited access permit would have required a vessel to possess a 
mackerel permit and have landed at least 1,000,000 lb (453.6 mt) in any 
one year between January 1, 1997, and December 31, 2007.
    The eligibility criteria for a Tier 1 permit in Alternative 1J 
would have required a vessel to possess a mackerel permit and have 
landed at least 1,000,000 lb (453.6 mt) of mackerel in any one year 
between January 1, 1997, and December 31, 2007. To qualify for a Tier 2 
permit, a vessel would have been required to possess a permit and have 
landed at least 100,000 lb (45.36 mt) of mackerel in any one year 
between March 1, 1994, and December 31, 2007. To qualify for a Tier 3 
permit, a vessel would have been required to possess a permit and have 
landed at least 25,000 lb (11.34 mt) of mackerel in any one year 
between March 1, 1994, and December 31, 2007. Under Alternative 1J, 26 
vessels would qualify for a Tier 1 permit, 55 vessels would qualify for 
a Tier 2 permit, and 49 vessels would qualify for a Tier 3 permit, 
resulting in a total of 130 vessels that would qualify for the various 
limited access mackerel permits.
    The number of individual qualifiers resulting from these management 
alternatives primarily varies based on the start date and end date of 
the qualifying landings period, and the required landings threshold for 
each Tier. A comparison of Alternatives 1B and 1C illustrates the 
effects of different start dates on numbers of qualifiers. Alternative 
1C, which has a 1997 start date, results in 42 fewer qualifying vessels 
(29 fewer vessels in Tier 2, 13 fewer in Tier 3) than Alternative 1B, 
which has a 1988 start date. While the later start dates result in 
fewer qualifiers in Tiers 2 and 3, the economic impacts on these 
individual vessels should not be significant when compared to their 
recent level of participation in the fishery. Vessels are still placed 
in a Tier based on their participation in the fishery since 1997, and 
analysis in Amendment 11 shows that lower Tiers generally derive a 
small percentage of their revenue (less than 2 percent for all 
alternatives) from mackerel.
    Vessels that had sizable landings in 2006 or 2007 would be most 
impacted by the use of a 2005 qualifying landings period end date; this 
can be illustrated by comparing Alternative 1C (2007) and 1E (2005). 
With the 2007 end date in 1C, there would be 26 Tier 1 vessels and 35 
Tier 2 vessels. If the end date is switched to 2005, as in 1E, three 
Tier 1 vessels and six Tier 2 vessels fall into lower Tiers. These 
vessels fell into lower Tiers because their best years of participation 
were more recent. Depending on the trip limits selected for the lower 
Tiers, these vessels may be negatively impacted by the earlier end date 
because they would be constrained compared to their recent 
participation in the mackerel fishery.
    The FEIS presents an estimate of the maximum feasible annual 
capacity for the Tier 1 and Tier 2 vessels projected to qualify in each 
of proposed alternatives; this estimate indicates the maximum amount of 
mackerel the fleet could land under the various management alternatives 
in a single year. Only Tier 1 and Tier 2 were included in the analysis 
because, with the exception of Alternative 1G, the other tiers in the 
presented alternatives will be constrained by trip limits or tier 
allocations. The highest capacity estimates are associated with the no 
action alternative and Alternative 1G (202,111 mt). The capacity for 
the open access vessels is included in the estimate for Alternative 1G 
because of the relatively high open access trip limit alternatives 
associated with 1G (20,000-121,000 mt). Alternative 1E restricts 
capacity the most, and results in a 49-percent reduction in capacity 
compared to the no action alternative. The least restrictive 
alternatives (1B and 1F) result in a 35-percent capacity reduction. The 
preferred alternative (1D) is the second most restrictive, and results 
in a 47-percent capacity reduction compared to no action. Alternatives 
with lower capacity, such as the preferred alternative, could provide 
greater long-term economic benefits to the qualifying fleet if reduced 
capacity contributes to the continued health of the mackerel resource.
    Alternative 1H and 1I would grant Tier 3 permits to limited access 
Atlantic herring vessels that would not otherwise qualify for a limited 
access mackerel permit. Alternative 1H would award a Tier 3 permit to 
vessels with Category

[[Page 45750]]

A or B herring permits, and Alternative 1I would award Tier 3 permits 
to vessels with Category A, B, or C herring permits. Individual vessels 
are known to target both mackerel and Atlantic herring on the same 
trip. This provision would prevent forced regulatory discards of 
incidentally captured mackerel on trips primarily targeting Atlantic 
herring, and would be expected to result in positive economic benefits 
for the Atlantic herring fleet. The Council ultimately did not select 
this alternative because it concluded that the preferred open access 
mackerel possession limit (20,000 lb (9.07 mt) per trip) would be 
sufficient to prevent regulatory discards. This alternative was not 
expected to have a large economic impact on the overall mackerel 
fishery, as this small number of vessels would be granted access to 
Tier 3, which would be limited by low trip limits or a Tier allocation.
Quota Allocation for Limited Access Tiers
    The FEIS describes four alternatives for allocating the commercial 
mackerel quota between the limited access Tiers. These alternatives 
were proposed as another mechanism to ensure that each Tier in the 
limited access program maintained their historical level of 
participation in the mackerel fishery in the future. The action 
alternatives would create a shared allocation for Tier 1, Tier 3, and 
the open access vessels, but allocate Tier 2 the percentage of total 
landings that Tier 2 landed from 1997-2007 (2B), double the Tier 2 
percentage from 1997-2007 (2C), or triple the Tier 2 percentage from 
1997-2007 (2D). Alternatives 2C and 2D feature a provision that, if 
less than half of Tier 2's allocation has been harvested on April 1, 
would transfer half of the remaining allocation to the Tier 1/Tier 3/
open access allocation.
    Based on public comment after the Draft Environmental Impact 
Statement (DEIS) was published, the Council modified alternatives 1C 
and 1D (preferred) to provide accommodations for smaller, historical 
participants in the mackerel fishery. These alternatives would result 
in more Tier 3 qualifiers, and would initially award Tier 3 a fairly 
high trip limit in order to allow the qualifiers occasional sizeable 
landings of mackerel. However, these alternatives would also cap Tier 3 
at a maximum of 7 percent of the commercial quota, with no additional 
allocations for any other Tiers. Given the selection of Alternative 1D 
as preferred, the Council ultimately recommended the no action 
alternative regarding allocations for Tier 2.
    All three action alternatives base the Tier 2 quota on a minimum of 
100 percent of their collective landings from 1997-2007. When combined 
with the tiered limited access alternatives described above, the 
resulting Tier 2 allocations would range from 3.5 to 3.8 percent of the 
annual commercial mackerel quota for Alternative 2B; 7.0 to 7.7 percent 
of the quota for 2C; and 10.5 to 11.5 percent of the quota for 2D. 
Given the lower 2011 mackerel quotas, these allocations may constrain 
landings for all Tiers. The quota transfer provisions in 2C and 2D 
could benefit Tier 1 in that they would help avoid a situation where 
Tier 1 is closed, but Tier 2 is left open with a significant portion of 
its allocation unused.
    The no action alternative (preferred), which also includes a cap on 
Tier 3 under preferred Alternative 1D, should not have substantial 
economic impact on most fishery participants. While Tier 3 would 
include an estimated 329 vessels with a relatively high trip limit, the 
Tier would be capped at a maximum of 7 percent of the commercial 
fishery allocation, so it should not affect the directed fishery. The 
economic impact of the Tier 2 allocations depends on Tier activity. If 
fishing opportunities expand for Tier 2, the no action alternative 
could allow Tier 2 participants to increase their activity, which could 
negatively impact other Tiers also attempting to access quota. On the 
other hand, the no action alternative could have negative impacts on 
Tier 2 if Tier 1 is very active in a given year and accesses a 
significant amount of the quota before Tier 2 vessels are able to given 
Tier 1's higher capacity.
Limited Access Trip Limits
    Amendment 11 includes five trip limit alternatives in addition to 
the no action and preferred alternative. The trip limits analyzed in 
the FEIS are intended to restrict vessels to a range of landings that 
are characteristic of trips by vessels within a Tier. Under all 
alternatives, Tier 1 is not constrained by a trip limit, and all other 
trip limits would be established annually through specifications. The 
preferred alternative (3F) would initially set the trip limits at 
135,000 lb (61.24 mt) for Tier 2; 100,000 lb (45.36 mt) for Tier 3; and 
20,000 lb (9.07 mt) for open access. Alternatives 3B, 3C, and 3D would 
initially set the trip limits for Tier 2, Tier 3, and open access 
vessels such that 99 percent, 98 percent, and 95 percent of the trips 
in each would not have been affected, respectively. This would result 
in initial trip limits ranging from 39,000-553,000 lb (14.6-206.4 mt) 
for Tier 2; 4,000-100,000 lb (1.5-37.3 mt) for Tier 3; and 1,000-20,000 
lb (0.4-7.5 mt) for open access, depending on the selected limited 
access program. Alternative 3E initially exempts Tier 2 from a trip 
limit, and sets all other trip limits in the range described in 
Alternatives 3B-3D. Alternative 3G was designed to be selected with 
Alternative 1G (single-tiered alternative), and would initially set the 
open access trip limit in range calculated for Tier 2 with Alternatives 
3B-3D under Alternative 1B (61,000-121,000 lb; 22.8-45.2 mt).
    The alternatives analyzed in the FEIS where designed to establish a 
trip limits that would be higher than historical landings for a 
majority of the fleet. Accordingly, none of the proposed trip limits 
are expected to have a negative economic impact on most of the mackerel 
fleet. In addition, the Tiers with trip limits typically derive a small 
percentage of their revenue from mackerel (less than 2 percent), so the 
trip limits are not expected to limit the contribution of mackerel to 
these vessels' annual revenue. In the event that mackerel availability 
increases in the future, the trip limits will benefit all mackerel 
fishery participants in that they will keep vessels in one Tier from 
significantly expanding effort to the point that their activity is 
characteristic of a higher Tier; put another way, trip limits could 
reduce additional capitalization, which could have long-term economic 
benefits if lower fishery capacity helps sustain the mackerel resource.
Limited Access Permit Provisions
    Amendment 11 includes most of the provisions adopted in other 
limited access fisheries in the Northeast Region to govern the initial 
qualification process, future ownership changes, and vessel 
replacements. For the most part, there is no direct economic impact. 
The nature of a limited access program requires rules for governing the 
transfer of limited access fishing permits. The procedures have been 
relatively standard for previous limited access programs, which makes 
it easier for a vessel owner issued permits for several limited access 
fisheries to undertake vessel transactions. The standard provisions 
adopted in Amendment 11 are those governing change in ownership; 
replacement vessels; CPH; abandonment or voluntary relinquishment of 
permits; and appeal and denial of permits. This action would also allow 
a vessel owner to retain an open access mackerel fishing history prior 
to the implementation of Amendment 11 to be eligible for issuance of a 
mackerel permit based on the eligibility of the vessel that was

[[Page 45751]]

sold, even if the vessel was sold with other limited access permits.
    The economic impacts of the limited access permit provisions are 
analyzed in section 7.5.4 of the Amendment 11 document. The preferred 
alternative that requires hold volume measurements for Tier 1 and Tier 
2 vessels would cost qualifiers for these permits an estimated $4,000 
per vessel, not including travel expenses, and would prevent such 
vessels from increasing hold volume by more than 10 percent through 
refitting or replacement. This provision, and other provisions that 
restrict vessel upgrades, may constrain future business opportunities 
for vessels with immediate plans for vessel refitting or replacement. 
However, these restrictions may have long-term benefits to fishery 
participants by limiting capitalization in the mackerel fishery. The 
proposed regulations regarding qualification with retained vessel 
histories may have positive economic impacts for participants that sold 
their vessel but retained their mackerel fishing history. However, this 
provision could result in more vessels qualifying for mackerel permits, 
which may result in increased fishery capitalization. This could have a 
negative impact on the mackerel fleet if any additional capitalization 
impacts the sustained health of the mackerel resource. The preferred 
alternative requiring weekly VTR submissions from Tier 3 vessels is 
expected to cost qualifiers an additional $5,790.40 annually for 
postage.
EFH Updates
    EFH designations identify the geographic domain within which 
fishery management measures that would minimize the adverse impacts of 
fishing and non-fishing activities could be implemented. The no action 
alternative would maintain the current text and map designations for 
EFH for all MSB species and life stages. The preferred alternative 
would designate as EFH the area associated with 90 percent of the 
cumulative geometric mean catches for non-overfished species, and the 
area associated with 95 percent of the cumulative geometric mean 
catches for unknown or overfished species. The three non-preferred 
alternatives vary slightly from the preferred, and include: (1) 75 
percent area for non-overfished species, 90 percent for unknown or 
overfished species; (2) 95 percent area for non-overfished species, 100 
percent for unknown or overfished species; and (3) 100 percent for all 
species.
    With the exception of egg life stage for Loligo, all of the MSB 
species are pelagic and have life stages that inhabit the water column. 
Because the fishing gears that have the potential to adversely impact 
EFH are bottom-tending, the EFH for MSB species is not vulnerable to 
fishing impacts. None of the EFH alternatives analyzed in Amendment 11 
would result in regulations affecting fishing activity. Accordingly, 
none of analyzed alternatives are expected to have negative economic 
impact on the fishing industry. Overall, the preferred alternative 
would allow for more effective consultations on oversight of EFH when 
compared to current EFH definitions, which could have positive impacts 
on the MSB resource.
Recreational Mackerel Allocation
    The commercial fishery currently closes when it reaches 90 percent 
of the total mackerel quota (commercial plus recreational). It is 
assumed that recreational fishery will harvest 15,000 mt of the 
commercial quota each year, regardless of the total commercial quota, 
but there is no hard allocation for the recreational fishery. The no 
action alternative would maintain the assumption that the recreational 
mackerel fishery could harvest 15,000 mt of the commercial quota. If 
the mackerel fishery is closed at 90 percent of the commercial quota, 
and the recreational fishery was actually able to harvest the assumed 
15,000 mt, the mackerel quota would be exceeded. For example, the 
commercial mackerel quota for the 2011 fishing year is 46,779 mt. If 
the commercial mackerel fishery is closed when 90 percent of this quota 
is attained (42,101 mt), and the recreational mackerel fishery has 
harvested the assumed 15,000 mt, then the mackerel quota would be 
exceeded by 22 percent (42,101 mt + 15,000 mt = 57,101 mt). Mackerel 
quota overages can compromise the sustainability of the resource, 
resulting in negative long-term economic impacts on the fishery.
    The preferred alternative would designate an allocation for the 
recreational mackerel fishery that corresponds to the proportion of 
total U.S. landings that were accounted for by the recreational fishery 
from 1997-2007 times 1.5 (6.2 percent of total U.S. mackerel landings). 
Other alternatives include an allocation equal to the proportion of 
U.S. landings accounted for by the recreational mackerel fishery during 
this period (4.1 percent), and two times the proportion from this 
period (8.2 percent).
    The proposed allocation is unlikely to constrain the current 
operations of the recreational mackerel fishery. Recreational landings 
from 2000-2009 ranged from 530-1,633 mt, with average recreational 
landings of 774 mt from 2007-2009. Under the preferred alternative, the 
recreational sector would have received an allocation of 2,900 mt in 
2011 (6.2 percent of 46,779 mt). Given recent reduced mackerel quotas, 
the proposed recreational mackerel allocation could constrain the 
commercial mackerel fishery compared to the no action alternative. 
However, the constraint on the commercial fishery is more related to 
the overall quota than to any of the potential recreational allocations 
considered in Amendment 11.
At-Sea Processing
    Finally, Amendment 11 considered the establishment of a cap for at-
sea processing via transfers for the mackerel fishery. The action 
alternatives included caps on at-sea processing initially set equal to 
7 percent, 14 percent, 21 percent, 50 percent, or 75 percent of the 
mackerel initial optimum yield (IOY), with the cap set annually through 
specifications. Though there has not been at-sea processing for 
mackerel by mother ship-type processors since the foreign fishery ended 
in the early 1990s, the Council developed this set of alternatives in 
response to public comment about the potential impacts if large-scale 
at-sea processing of mackerel were to commence in the future. In 
particular, commenters noted that, if there were significant amounts of 
at-sea mackerel processing, the disruption of the supply of mackerel to 
land-based processors could have negative economic impacts on fishing 
communities.
    There is little information available about the possible impacts of 
at-sea processing in the mackerel fishery. Under the proposed no action 
alternative, if at-sea processing were to become significant for 
mackerel, an unlimited portion of the mackerel market share could be 
transferred to at-sea processors. Land-based mackerel processors, and 
the shoreside communities in which they reside, would be impacted to 
the extent that mackerel processing shifts to the at-sea operations. 
Limiting at-sea processing (action alternatives) could have economic 
benefits by ensuring a portion of the mackerel supply would still be 
available to land-based mackerel processors.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.


[[Page 45752]]


    Dated: July 27, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

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

    2. In Sec.  648.4, paragraph (a)(5)(iii) is revised, and paragraph 
(c)(2)(vii) is added to read as follows:


Sec.  648.4  Vessel permits.

    (a) * * *
    (5) * * *
    (iii) Limited access Atlantic mackerel permits. (A) Vessel size 
restriction. A vessel of the United States is eligible for and may be 
issued an Atlantic mackerel permit to fish for, possess, or land 
Atlantic mackerel in or from the EEZ, except for any vessel that is 
greater than or equal to 165 ft (50.3 m) in length overall (LOA), or 
greater than 750 gross registered tons (680.4 mt), or the vessel's 
total main propulsion machinery is greater than 3,000 horsepower. 
Vessels that exceed the size or horsepower restrictions may seek to 
obtain an at-sea processing permit specified in Sec.  648.6(a)(2)(i).
    (B) Limited access mackerel permits. A vessel of the United States 
that fishes for, possesses, or lands more than 20,000 lb (7.46 mt) of 
mackerel per trip, except vessels that fish exclusively in state waters 
for mackerel, must have been issued and carry on board one of the 
limited access mackerel permits described in paragraphs 
(a)(5)(iii)(B)(1) through (3) of this section, including both vessels 
engaged in pair trawl operations.
    (1) Tier 1 Limited Access Mackerel Permit. A vessel may fish for, 
possess, and land unlimited amounts of mackerel, provided the vessel 
qualifies for and has been issued this permit, subject to all other 
regulations of this part.
    (2) Tier 2 Limited Access Mackerel Permit. A vessel may fish for, 
possess, and land up to 135,000 lb (50 mt) of mackerel per trip, 
provided the vessel qualifies for and has been issued this permit, 
subject to all other regulations of this part.
    (3) Tier 3 Limited Access Mackerel Permit. A vessel may fish for, 
possess, and land up to 100,000 lb (37.3 mt) of mackerel per trip, 
provided the vessel qualifies for and has been issued this permit, 
subject to all other regulations of this part.
    (C) Eligibility criteria for mackerel permits. A vessel is eligible 
for and may be issued a Tier 1, Tier 2, or Tier 3 Limited Access 
Mackerel Permit if it meets the permit history criteria in paragraph 
(a)(5)(iii)(C)(1) of this section and the relevant landings 
requirements specified in paragraphs (a)(5)(iii)(C)(2) through (4) of 
this section. The permit criteria and landings requirement must either 
be derived from the same vessel, or joined on a vessel through 
replacement prior to March 21, 2007.
    (1) Permit history criteria for Limited Access Mackerel Permits. 
(i) The vessel must have been issued a Federal mackerel permit that was 
valid as of March 21, 2007. The term ``as of'' means that the vessel 
must have had a valid mackerel permit on March 21, 2007.
    (ii) The vessel is replacing a vessel that was issued a Federal 
mackerel permit that was valid as of March 21, 2007. To qualify as a 
replacement vessel, the replacement vessel and the vessel being 
replaced must both be owned by the same vessel owner; or if the vessel 
being replaced was sunk or destroyed, the vessel owner must have owned 
the vessel being replaced at the time it sunk or was destroyed; or, if 
the vessel being replaced was sold to another person, the vessel owner 
must provide a copy of a written agreement between the buyer of the 
vessel being replaced and the owner/seller of the vessel, documenting 
that the vessel owner/seller retained the mackerel permit and all 
mackerel landings history.
    (2) Landings criteria for Limited Access Mackerel Permits. (i) Tier 
1. The vessel must have landed at least 400,000 lb (149.3 mt) of 
mackerel in any one calendar year between January 1, 1997, and December 
31, 2005, as verified by dealer reports submitted to NMFS or documented 
through valid dealer receipts, if dealer reports were not required by 
NMFS. The owners of vessels that fished in pair trawl operations may 
provide landings information as specified in paragraph 
(a)(5)(iii)(C)(2)(iv) of this section. Landings made by a vessel that 
is being replaced may be used to qualify a replacement vessel 
consistent with the requirements specified in paragraph 
(a)(5)(iii)(C)(1)(ii) of this section.
    (ii) Tier 2. The vessel must have landed at least 100,000 lb (37.3 
mt) of mackerel in any one calendar year between March 1, 1994, and 
December 31, 2005, as verified by dealer reports submitted to NMFS or 
documented through valid dealer receipts, if dealer reports were not 
required by NMFS. The owners of vessels that fished in pair trawl 
operations may provide landings information as specified in paragraph 
(a)(5)(iii)(C)(2)(iv) of this section. Landings made by a vessel that 
is being replaced may be used to qualify a replacement vessel 
consistent with the requirements specified in paragraph 
(a)(5)(iii)(C)(1)(ii) of this section.
    (iii) Tier 3. The vessel must have landed at least 1,000 lb (0.4 
mt) of mackerel in any one calendar year between March 1, 1994, and 
December 31, 2005, as verified by dealer reports submitted to NMFS or 
documented through valid dealer receipts, if dealer reports were not 
required by NMFS. The owners of vessels that fished in pair trawl 
operations may provide landings information as specified in paragraph 
(a)(5)(iii)(C)(2)(iv) of this section. Landings made by a vessel that 
is being replaced may be used to qualify a replacement vessel 
consistent with the requirements specified in paragraph 
(a)(5)(iii)(C)(1)(ii) of this section.
    (iv) Landings criteria for vessels using landings from pair trawl 
operations. To qualify for a limited access permit using landings from 
pair trawl operations, the owners of the vessels engaged in that 
operation must agree on how to divide such landings between the two 
vessels and apply for the permit jointly, as supported by the required 
NMFS dealer reports or signed dealer receipts.
    (3) CPH. A person who does not currently own a fishing vessel, but 
owned a vessel that satisfies the permit eligibility requirement in 
paragraph (a)(5)(iii)(B)(1) and (2) of this section that has sunk, been 
destroyed, or transferred to another person without its fishing and 
permit history, and that has not been replaced, may apply for and 
receive a CPH. A CPH allows for a replacement vessel to obtain the 
relevant limited access mackerel permit if the fishing and permit 
history of such vessel has been retained lawfully by the applicant as 
specified in paragraph (a)(5)(iii)(C)(1)(ii) of this section. If the 
vessel sank, was destroyed, or was transferred before March 21, 2007, 
the permit issuance criteria may be satisfied if the vessel was issued 
a valid Federal mackerel permit at any time between March 21, 2006, and 
March 21, 2007.
    (D) Application/renewal restrictions. See paragraph (a)(1)(i)(B) of 
this section. Applications for a limited access mackerel permit 
described in paragraph (a)(5)(iii) of this section must be postmarked 
no later than December 31, 2012. Applications for limited access 
mackerel permits that are not postmarked before December 31, 2012, will 
not be processed because of this regulatory restriction, and returned 
to

[[Page 45753]]

the sender with a letter explaining the denial. Such denials may not be 
appealed and shall be the final decision of the Department of Commerce.
    (E) Qualification restrictions. (1) See paragraph (a)(1)(i)(C) of 
this section. The following restrictions in paragraphs 
(a)(5)(iii)(E)(2) and (3) of this section are applicable to limited 
access mackerel permits.
    (2) Mackerel landings history generated by separate owners of a 
single vessel at different times during the qualification period for 
limited access mackerel permits may be used to qualify more than one 
vessel, provided that each owner applying for a limited access mackerel 
permit demonstrates that he/she created distinct fishing histories, 
that such histories have been retained, and if the vessel was sold, 
that each applicant's eligibility and fishing history is distinct. In 
such a case, each applicant would still need to have been issued a 
valid mackerel permit as of March 21, 2007, in order to create a full 
eligibility, as detailed in paragraph (a)(5)(iii)(C) of this section.
    (3) A vessel owner applying for a limited access mackerel permit 
who sold or transferred a vessel with non-mackerel limited access 
permits, as specified in paragraph (a)(1)(i)(D) of this section, and 
retained only the mackerel permit and landings history of such vessel 
as specified in paragraph (a)(1)(i)(D) of this section, before April 3, 
2009, may use the mackerel history to qualify a different vessel for 
the initial limited access mackerel permit, regardless of whether the 
history from the sold or transferred vessel was used to qualify for any 
other limited access permit. Such eligibility may be used if the vessel 
for which the initial limited access mackerel permit has been submitted 
meets the upgrade restrictions described at paragraph (a)(5)(iii)(H) of 
this section. Applicants must be able to provide baseline documentation 
for both vessels in order to be eligible to use this provision.
    (F) Change of ownership. See paragraph (a)(1)(i)(D) of this 
section.
    (G) Replacement vessels. See paragraph (a)(1)(i)(E) of this 
section.
    (H) Vessel baseline specification. (1) In addition to the baseline 
specifications specified in paragraph (a)(1)(i)(H) of this section, the 
volumetric fish hold capacity of a vessel at the time it was initially 
issued a Tier 1 or Tier 2 limited access mackerel permit will be 
considered a baseline specification. The fish hold capacity measurement 
must be obtained from an individual credentialed as a Certified Marine 
Surveyor with a fishing specialty by the National Association of Marine 
Surveyors (NAMS) or from an individual credentialed as an Accredited 
Marine Surveyor with a fishing specialty by the Society of Accredited 
Marine Surveyors (SAMS). Vessels that are sealed by the Maine State 
Sealer of Weights and Measures will also be deemed to meet this 
requirement. Vessels that qualify for a Tier 1 or Tier 2 mackerel 
permit must submit a fish hold capacity measurement to NMFS with the 
annual permit renewal application for the 2013 fishing year, as 
specified in paragraph (c)(2)(viii) of this section, or with the first 
vessel replacement application after a vessel qualifies for a Tier 1 or 
Tier 2 mackerel permit, whichever is sooner.
    (2) If a mackerel CPH is initially issued, the vessel that provided 
the CPH eligibility establishes the size baseline against which future 
vessel size limitations shall be evaluated, unless the applicant has a 
vessel under contract prior to the submission of the mackerel limited 
access application. The replacement application to move permits onto 
the contracted vessel must be received by December 31, 2013. If the 
vessel that established the CPH is less than 20 ft (6.09 m) in length, 
then the baseline specifications associated with other limited access 
permits in the CPH suite will be used to establish the mackerel 
baseline specifications. If the vessel that established the CPH is less 
than 20 ft (6.09 m) in length, the limited access mackerel eligibility 
was established on another vessel, and there are no other limited 
access permits in the CPH suite, then the applicant must submit valid 
documentation of the baseline specifications of the vessel that 
established the eligibility. The hold capacity baseline for such 
vessels will be the hold capacity of the first replacement vessel after 
the permits are removed from CPH.
    (I) Upgraded vessel. See paragraph (a)(1)(i)(F) of this section. In 
addition, for Tier 1 and Tier 2 limited access mackerel permits, the 
replacement vessel's volumetric fish hold capacity may not exceed by 
more than 10 percent the volumetric fish hold capacity of the vessel's 
baseline specifications. The modified fish hold, or the fish hold of 
the replacement vessel, must be resurveyed by a surveyor (accredited as 
in paragraph (a)(5)(iii)(H) of this section) unless the replacement 
vessel already had an appropriate certification, and the documentation 
would have to be submitted to NMFS.
    (J) Consolidation restriction. See paragraph (a)(1)(i)(G) of this 
section.
    (K) Confirmation of permit history. See paragraph (a)(1)(i)(J) of 
this section.
    (L) Abandonment or voluntary relinquishment of permits. See 
paragraph (a)(1)(i)(K) of this section.
    (M) Appeal of denial of permit. (1) Eligibility. Any applicant 
eligible to apply for a limited access mackerel permit who is denied 
such permit may appeal the denial to the Regional Administrator within 
30 days of the notice of denial. The only ground for appeal is that the 
Regional Administrator erred in concluding that the vessel did not meet 
the criteria in this section. The appeal must set forth the basis for 
the applicant's belief that the decision of the Regional Administrator 
was made in error.
    (2) Appeal review. Applicants have two opportunities to appeal the 
denial of a limited access mackerel permit. The review of initial 
appeals will be conducted under the authority of the Regional 
Administrator at NMFS's Northeast Regional Office. The Regional 
Administrator shall appoint a hearing officer for review of second 
denial appeals.
    (i) An appeal of the denial of an initial permit application (first 
level of appeal) must be made in writing to NMFS Northeast Regional 
Administrator. Appeals must be based on the grounds that the 
information used by the Regional Administrator in denying the permit 
was incorrect. The only items subject to appeal are the accuracy of the 
amount of landings, and the correct assignment of landings to a vessel 
and/or permit holder. Appeals must be submitted to the Regional 
Administrator, postmarked no later than 30 days after the denial of an 
initial limited access mackerel permit application. The appeal shall 
set forth the basis for the applicant's belief that the Regional 
Administrator's decision was made in error. The appeal must be in 
writing, must state the specific grounds for the appeal, the limited 
access mackerel permit category for which the applicant believes he 
should qualify, and must include information to support the appeal. The 
appellant may also request an LOA, as described in paragraph 
(a)(5)(iii)(M)(3) of this section. The appeal will not be reviewed 
without submission of information in support of the appeal. The 
Regional Administrator would appoint a designee to make the initial 
decision on the appeal.
    (ii) Should the appeal be denied, the applicant may request a 
hearing to review the Regional Administrator's appeal decision (second 
level of appeal). Such a request must be in writing, postmarked no 
later than 30 days after the appeal decision, must state the specific 
grounds for the hearing request,

[[Page 45754]]

and must include information to support the hearing request. If the 
request for a hearing to review of the appeal decision is not made 
within 30 days, the appeal decision is the final administrative action 
of the Department of Commerce. The appeal will not be reviewed in a 
hearing without submission of information in support of the hearing 
request. The Regional Administrator will appoint a hearing officer; the 
hearing process may take place within the National Appeals program. The 
hearing officer shall make findings and a recommendation to the 
Regional Administrator, which shall be advisory only. The Regional 
Administrator's decision is the final administrative action of the 
Department of Commerce.
    (3) A vessel denied a limited access mackerel permit may fish for 
mackerel, provided that the denial has been appealed, the appeal is 
pending, and the vessel has on board a letter from the Regional 
Administrator authorizing the vessel to fish under the limited access 
category for which the applicant has submitted an appeal. A request for 
a letter of authorization (LOA) must be made at the time of appeal. The 
Regional Administrator will issue such a letter for the pending period 
of any appeal. The LOA must be carried on board the vessel. If the 
appeal is finally denied, the Regional Administrator shall send a 
notice of final denial to the vessel owner; the authorizing letter 
becomes invalid 5 days after the receipt of the notice of denial, but 
no later than 10 days from the date of the letter of denial.
    (iv) Atlantic mackerel incidental catch permits. Any vessel of the 
United States may obtain a permit to fish for or retain up to 20,000 lb 
(7.46 mt) of Atlantic mackerel as an incidental catch in another 
directed fishery, provided that the vessel does not exceed the size 
restrictions specified in paragraph (a)(5)(iii)(A) of this section. The 
incidental catch allowance may be revised by the Regional Administrator 
based upon a recommendation by the Council following the procedure set 
forth in Sec.  648.21.
    (v) Party and charter boat permits. The owner of any party or 
charter boat must obtain a permit to fish for, possess, or retain in or 
from the EEZ mackerel, squid, or butterfish while carrying passengers 
for hire.
* * * * *
    (c) * * *
    (2) * * *
    (vii) The owner of a vessel that has been issued a Tier 1 or Tier 2 
limited access mackerel must submit a volumetric fish hold 
certification measurement, as described in paragraph (a)(5)(iii)(H) of 
this section, with the permit renewal application for the 2013 fishing 
year.
* * * * *
    3. In Sec.  648.7, paragraph (f)(2)(i) is revised to read as 
follows:


Sec.  648.7  Recordkeeping and reporting requirements.

* * * * *
    (f) * * *
    (2) * * *
    (i) For any vessel not issued a NE multispecies permit or a Tier 3 
Limited Access mackerel permit, fishing vessel log reports, required by 
paragraph (b)(1)(i) of this section, must be postmarked or received by 
NMFS within 15 days after the end of the reporting month. If no fishing 
trip is made during a particular month for such a vessel, a report 
stating so must be submitted, as instructed by the Regional 
Administrator. For any vessel issued a NE multispecies permit or a Tier 
3 Limited Access mackerel permit, fishing vessel log reports must be 
postmarked or received by midnight of the first Tuesday following the 
end of the reporting week. If no fishing trip is made during a 
reporting week for such a vessel, a report stating so must be submitted 
and received by NMFS by midnight of the first Tuesday following the end 
of the reporting week, as instructed by the Regional Administrator. For 
the purposes of this paragraph (f)(2)(i), the date when fish are 
offloaded will establish the reporting week or month that the VTR must 
be submitted to NMFS, as appropriate. Any fishing activity during a 
particular reporting week (i.e., starting a trip, landing, or 
offloading catch) will constitute fishing during that reporting week 
and will eliminate the need to submit a negative fishing report to NMFS 
for that reporting week. For example, if a vessel issued a NE 
multispecies permit or Tier 3 Limited Access Mackerel Vessel begins a 
fishing trip on Wednesday, but returns to port and offloads its catch 
on the following Thursday (i.e., after a trip lasting 8 days), the VTR 
for the fishing trip would need to be submitted by midnight Tuesday of 
the third week, but a negative report (i.e., a ``did not fish'' report) 
would not be required for either week.
* * * * *
    4. In Sec.  648.14, paragraph (g)(1)(iii) is removed; paragraphs 
(g)(2)(ii)(C), (g)(2)(ii)(D) and (g)(2)(ii)(E) are revised, and 
paragraphs (g)(2)(ii)(F), (g)(2)(iii)(D) and (g)(2)(iv) are added to 
read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (g) * * *
    (2) * * *
    (ii) * * *
    (C) Possess more than the incidental catch allowance of mackerel, 
unless issued a Limited Access mackerel permit.
    (D) Take, retain, possess, or land mackerel, squid, or butterfish 
in excess of a possession allowance specified in Sec.  648.25.
    (E) Possess 5,000 lb (2.27 mt) or more of butterfish, unless the 
vessel meets the minimum mesh requirements specified in Sec.  
648.23(a).
    (F) Take, retain, possess, or land mackerel, squid, or butterfish 
after a total closure specified under Sec.  648.22.
* * * * *
    (iii) * * *
    (D) If fishing with midwater trawl or purse seine gear, fail to 
comply with the requirements of Sec.  648.80(d) and (e).
* * * * *
    (iv) Observer requirements for Loligo fishery. Fail to comply with 
any of the provisions specified in Sec.  648.26.
* * * * *
    6. In Sec.  648.21, paragraphs (a)(3), (b)(2)(iii) introductory 
text, (c)(3), (c)(6), and (c)(9) are revised to read as follows:


Sec.  648.21  Procedures for determining initial annual amounts.

    (a) * * *
    (3) IOY, including RQ, DAH, Tier 3 allocation (up to 7 percent of 
the DAH), DAP, recreational allocation, joint venture processing (JVP), 
if any, and TALFF, if any, for mackerel, which, subject to annual 
review, may be specified for a period of up to 3 years. The Monitoring 
Committee may also recommend that certain ratios of TALFF, if any, for 
mackerel to purchases of domestic harvested fish and/or domestic 
processed fish be established in relation to the initial annual 
amounts.
* * * * *
    (b) * * *
    (2) * * *
    (iii) IOY is composed of RQ, DAH, Tier 3 allocation (up to 7 
percent of DAH), recreational allocation, and TALFF. Recreational 
allocation shall be equal to 6.2 percent of the mackerel ABC. RQ shall 
be based on request for research quota as described in paragraph (g) of 
this section. DAH, Tier 3 allocation (up to 7 of the DAH), recreational 
allocation, DAP, and JVP shall be set after deduction for RQ, if 
applicable, and must be projected by reviewing data from sources 
specified in paragraph (b) of this section and other

[[Page 45755]]

relevant data, including past domestic landings, projected amounts of 
mackerel, necessary for domestic processing and for joint ventures 
during the fishing year, and other data pertinent for such projection. 
The JVP component of DAH is the portion of DAH that domestic processors 
either cannot or will not use. In addition, IOY shall be based on the 
criteria set forth in the Magnuson-Stevens Act, specifically section 
201(e), and on the following economic factors:
* * * * *
    (c) * * *
    (3) The amount of Loligo, Illex, and butterfish that may be 
retained and landed by vessels issued the incidental catch permit 
specified in Sec.  648.4(1)(5)(ii), and the amount of mackerel that may 
be retained, possessed and landed by any of the limited access mackerel 
permits described at Sec.  648.4(1)(5)(iii) and the incidental mackerel 
permit at Sec.  648.4(1)(5)(iv).
* * * * *
    (6) Commercial seasonal quotas/closures for Loligo and Illex, and 
allocation for the Limited Access Mackerel Tier 3.
* * * * *
    (9) Recreational allocation for mackerel.
* * * * *
    7. In Sec.  648.22, paragraph (a)(1) is revised to read as follows:


Sec.  648.22  Closure of the fishery.

    (a) * * *
    (1) Mackerel closures. (i) NMFS shall close the commercial mackerel 
fishery in the EEZ when the Regional Administrator projects that 90 
percent of the mackerel DAH is harvested, if such a closure is 
necessary to prevent the DAH from being exceeded. The closure of the 
directed fishery shall be in effect for the remainder of that fishing 
period, with incidental catches allowed as specified in Sec.  
648.25(a)(2)(i). When the Regional Administrator projects that the DAH 
for mackerel shall be landed, NMFS shall close the mackerel fishery in 
the EEZ and the incidental catches specified for mackerel at Sec.  
648.25(a)(2)(i) will be prohibited.
    (ii) NMFS shall close the Tier 3 commercial mackerel fishery in the 
EEZ when the Regional Administrator projects that 90 percent of the 
Tier 3 mackerel allocation is harvested, if such a closure is necessary 
to prevent the DAH from being exceeded. The closure of the Tier 3 
commercial mackerel fishery shall be in effect for the remainder of 
that fishing period, with incidental catches allowed as specified in 
Sec.  648.25(a)(2)(ii).
* * * * *
    8. In Sec.  648.24, paragraph (a)(1) is revised to read as follows:


Sec.  648.24  Framework adjustments to management measures.

    (a) * * *
    (1) Adjustment process. The Council shall develop and analyze 
appropriate management actions over the span of at least two Council 
meetings. The Council must provide the public with advance notice of 
the availability of the recommendation(s), appropriate justification(s) 
and economic and biological analyses, and the opportunity to comment on 
the proposed adjustment(s) at the first meeting and prior to and at the 
second Council meeting. The Council's recommendations on adjustments or 
additions to management measures must come from one or more of the 
following categories: Minimum fish size, maximum fish size, gear 
restrictions, gear requirements or prohibitions, permitting 
restrictions, recreational allocation, recreational possession limit, 
recreational seasons, closed areas, commercial seasons, commercial trip 
limits, commercial quota system including commercial quota allocation 
procedure and possible quota set asides to mitigate bycatch, 
recreational harvest limit, annual specification quota setting process, 
FMP Monitoring Committee composition and process, description and 
identification of EFH (and fishing gear management measures that impact 
EFH), description and identification of habitat areas of particular 
concern, overfishing definition and related thresholds and targets, 
regional gear restrictions, regional season restrictions (including 
option to split seasons), restrictions on vessel size (LOA and GRT) or 
shaft horsepower, changes to the Northeast Region SBRM (including the 
CV-based performance standard, the means by which discard data are 
collected/obtained, fishery stratification, reports, and/or industry-
funded observers or observer set-aside programs), any other management 
measures currently included in the FMP, set aside quota for scientific 
research, regional management, and process for inseason adjustment to 
the annual specification.
* * * * *
    9. In Sec.  648.25, paragraph (a) is revised to read as follows:


Sec.  648.25  Possession restrictions.

    (a) Atlantic mackerel. (1) A vessel must be issued a valid limited 
access mackerel permit to fish for, possess, or land more than 20,000 
lb (9.08 mt) of Atlantic mackerel from or in the EEZ per trip, provided 
that the fishery has not been closed because 90 percent of the DAH has 
been harvested, as specified in Sec.  648.22(a)(1)(i).
    (i) A vessel issued a Tier 1 Limited Access Mackerel Permit is 
authorized to fish for, possess, or land Atlantic mackerel with no 
possession restriction in the EEZ per trip, and may only land Atlantic 
mackerel once on any calendar day, which is defined as the 24-hr period 
beginning at 0001 hours and ending at 2,400 hours, provided that the 
fishery has not been closed because 90 percent of the DAH has been 
harvested, as specified in Sec.  648.22(a)(1)(i).
    (ii) A vessel issued a Tier 2 Limited Access Mackerel Permit is 
authorized to fish for, possess, or land up to 135,000 lb (61.23 mt) of 
Atlantic mackerel in the EEZ per trip, and may only land Atlantic 
mackerel once on any calendar day, which is defined as the 24-hr period 
beginning at 0001 hours and ending at 2400 hours, provided that the 
fishery has not been closed because 90 percent of the DAH has been 
harvested, as specified in Sec.  648.22(a)(1)(i).
    (iii) A vessel issued a Tier 3 Limited Access Mackerel Permit is 
authorized to fish for, possess, or land up to 100,000 lb (45.36 mt) of 
Atlantic mackerel in the EEZ per trip, and may only land Atlantic 
mackerel once on any calendar day, which is defined as the 24-hr period 
beginning at 0001 hours and ending at 2400 hours, provided that the 
fishery has not been closed because 90 percent of the Tier 3 allocation 
has been harvested, or 90 percent of the DAH has been harvested, as 
specified in Sec.  648.22(a)(1)(i) and (ii).
    (iv) A vessel issued an open access mackerel permit may fish for, 
possess, or land up to 20,000 lb (9.08 mt) of Atlantic mackerel in the 
EEZ per trip, and may only land Atlantic mackerel once on any calendar 
day, which is defined as the 24-hr period beginning at 0001 hours and 
ending at 2400 hours.
    (v) Both vessels involved in a pair trawl operation must be issued 
a valid mackerel permits to fish for, possess, or land Atlantic 
mackerel in the EEZ. Both vessels must be issued the mackerel permit 
appropriate for the amount of mackerel jointly possessed by both of the 
vessels participating in the pair trawl operation.
    (2) Mackerel closure possession restrictions. (i) Commercial 
mackerel fishery. During a closure of the commercial Atlantic mackerel 
fishery, including closure of the Tier 3 fishery, vessels issued a 
Limited Access Mackerel Permit may not fish for, possess, or land more 
than 20,000 lb

[[Page 45756]]

(9.08 mt) of Atlantic mackerel per trip at any time, and may only land 
Atlantic mackerel once on any calendar day, which is defined as the 24-
hr period beginning at 0001 hours and ending at 2,400 hours.
    (ii) [Reserved]
* * * * *
[FR Doc. 2011-19415 Filed 7-29-11; 8:45 am]
BILLING CODE 3510-22-P