[Federal Register Volume 76, Number 215 (Monday, November 7, 2011)]
[Rules and Regulations]
[Pages 68642-68657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28772]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 0808041037-1649-02]
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: Final rule.

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SUMMARY: NMFS is implementing approved measures in Amendment 11 to the 
Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan, 
developed by the Mid-Atlantic Fishery Management Council. The approved 
measures include: A tiered limited access program for the Atlantic 
mackerel fishery; an open access incidental catch permit for mackerel; 
an update to essential fish habitat designations for all life stages of 
mackerel, longfin squid, Illex squid, and butterfish; and the 
establishment of a recreational allocation for mackerel.

DATES: Effective December 7, 2011, except for the amendment to Sec.  
648.4, which is effective March 1, 2012.

ADDRESSES: Copies of supporting documents used by the Mid-Atlantic 
Fishery Management Council (Council), including the Final Environmental 
Impact Statement (FEIS) and Regulatory Impact Review (RIR)/Initial 
Regulatory Flexibility Analysis (IRFA), are available from: Dr. 
Christopher M. Moore, Executive Director, Mid-Atlantic Fishery 
Management Council, Suite 201, 800 N. State Street, Dover, DE 19901. 
The FEIS/RIR/IRFA is accessible via the Internet at http://www.nero.noaa.gov. NMFS prepared a Final Regulatory Flexibility 
Analysis (FRFA), which is contained in the Classification section of 
the preamble of this final rule. Copies of the FRFA, Record of Decision 
(ROD), and the Small Entity Compliance Guide are available from the 
Regional Administrator, Northeast Regional Office, NMFS, 55 Great 
Republic Drive, Gloucester, MA 01930, and are also available via the 
internet at http://www.nero.noaa.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule may be submitted to NMFS, Northeast Regional Office and by email 
to

[[Page 68643]]

[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

    This final rule implements the measures in Amendment 11, which was 
approved on behalf of the Secretary of Commerce (Secretary) on 
September 30, 2011. A proposed rule was published in the Federal 
Register on August 1, 2011 (76 FR 45742), with comments accepted 
through September 15, 2011. The details of the development of Amendment 
11 were contained in the preamble of the proposed rule and are not 
repeated here.

Approved Measures

    Changes in the descriptions of the management measures from the 
proposed rule's descriptions are noted below. Changes in the regulatory 
text from the proposed rule are noted under ``Changes from Proposed 
Rule to Final Rule'' in the preamble of this final rule.
    As noted in the proposed rule, some of the regulations implemented 
through Amendment 11 are associated with the Council's Omnibus Annual 
Catch Limit and Accountability Measures (Omnibus) Amendment, which was 
approved by the Secretary on August 12, 2011, and published as a final 
rule on September 29, 2011 (76 FR 60606). Several sections of 
regulatory text are affected by both actions. Since the Omnibus 
Amendment and its regulatory text are now finalized, the regulatory 
text presented in this final rule references the updated regulations. 
Therefore, it differs slightly in structure, but not content, from the 
regulations presented in the proposed rule.

1. Limited Access Mackerel Permits and Trip Limits

    Amendment 11 implements a three-tiered limited access permit system 
for the mackerel fishery. Vessels that do not qualify for a limited 
access mackerel permit are eligible to receive the open access mackerel 
permit described below. Initial trip limits established for each permit 
category can be adjusted through the specifications process.
    In order to be eligible for a limited access mackerel permit, 
applicants must meet both a permit history requirement and a landings 
requirement. The preamble of the proposed rule noted that 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). This statement is inconsistent with the 
regulatory text in the proposed rule. NMFS clarifies that permit and 
landings requirement must be derived from the same vessel unless they 
are combined through vessel replacement prior to March 21, 2007.
Permit Requirement
    To meet the permit requirement, a vessel must have been issued a 
Federal mackerel permit that was valid on March 21, 2007, or must be 
replacing a vessel that was issued a Federal mackerel permit that was 
valid on March 21, 2007. If the vessel sunk, was destroyed, or 
transferred prior to March 21, 2007, and a mackerel permit was not 
issued to a replacement vessel as of 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.
Landings Requirement
    NMFS will use dealer data in its 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 must 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.
    Vessels that fished cooperatively for mackerel in pair trawl 
operations may divide the catch history between the two vessels in the 
pair through third-party verification and supplemental information, 
such as previously submitted vessel trip reports (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 Fishery Management Plan 
(FMP).
    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 
allows vessels to possess and land unlimited amounts of mackerel while 
the mackerel fishery is open to directed fishing.
    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 
allows vessels to possess and land 135,000 lb (61.23 mt) of mackerel 
per trip while the mackerel fishery is open to directed fishing.
    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 
allows vessels to possess and land 100,000 lb (45.36 mt) of mackerel 
per trip while the mackerel fishery is open for directed fishing, or 
while the Tier 3 allocation is still available.
    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. While the preamble to 
the proposed rule stated that this provision would be maintained as is, 
the regulatory text stated that the closure possession limit would be 
20,000 lb (9.08 mt), regardless of when a closure occurs during the 
fishing year. NMFS clarifies in this final rule that the closure 
possession limit presented in the regulatory text is consistent with 
the intent of Amendment 11; thus, the closure possession limit for 
mackerel will be 20,000 lb (9.08 mt).

 2. Limited Access Vessel Permit Provisions

    Amendment 11 establishes measures to govern future transactions 
related to limited access vessels, such as purchases, sales, or 
reconstruction. These measures apply to all limited access mackerel 
vessels. Except as noted, the provisions 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.

[[Page 68644]]

Initial Eligibility and Application
    Initial eligibility for a mackerel limited access permit must be 
established during the first year after the implementation of Amendment 
11. A vessel owner is 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, applicants wishing to fish for mackerel with a 
limited access permit after March 1, 2012, must submit an application 
by January 31, 2012. After March 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, will 
automatically be re-designated as open access permit holders under the 
new mackerel permit system, and will be subject to the open access 
possession limit described in this final rule. These applicants will 
receive a letter explaining the reason for the permit's return. All 
applicants have until February 28, 2013, 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, may apply for and receive a CPH. 
The CPH provides a benefit to a vessel owner by securing limited access 
eligibility through a registration system when an individual does not 
currently own a vessel; the individual can later transfer the permit 
onto a replacement vessel. To be eligible to obtain a CPH, the 
applicant must show that the qualifying vessel meets the eligibility 
requirements for the limited access mackerel permit in question. 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. Vessel owners who are issued a CPH can obtain a vessel 
permit for a replacement vessel in the future, 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. 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 March 1, 2012, to February 28, 2013.
Permit Transfers
    A mackerel limited access permit and fishing history is 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 final rule does not contain a single 
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 does 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 must 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, the mackerel eligibility cannot be moved 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 does 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, are allowed to do so under Amendment 11.
Qualification Restriction
    Consistent with previous limited access programs, no more than one 
vessel can 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 claims eligibility for a limited access 
permit or CPH, based on a vessel's single fishing and permit history, 
the NMFS Regional Administrator will 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 have 
two opportunities to appeal the denial of a limited access mackerel 
permit. The review of initial application denial appeals will be 
conducted under the authority of the Regional Administrator at NMFS's 
Northeast Regional Office. The review of second denial appeals will 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 must be based on the 
grounds that the information used by the Regional Administrator in 
denying the permit was incorrect. Amendment 11 requires appeals to be 
submitted to the Regional Administrator, postmarked no later than 30 
days after the denial of an initial

[[Page 68645]]

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 will not be 
reviewed without submission of information in support of the appeal. 
The Regional Administrator will appoint a designee to make the initial 
decision on the appeal.
    Should the appeal be denied, the applicant is 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 
will 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 at the time of the party's appeal, the 
Regional Administrator will appoint a hearing officer. The hearing 
officer will make findings and a recommendation to the Regional 
Administrator, which are 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 can 
fish for mackerel while the decision on appeal is pending, provided 
that the denial has been appealed, an appeal decision has not been made 
by the Regional Administrator, 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 the 
appeal. The Regional Administrator will issue such a letter for the 
pendency of any appeal. If the appeal is ultimately denied under NMFS' 
administrative review, the Regional Administrator will send a notice of 
final denial to the vessel owner, and the authorizing letter becomes 
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 
permit will 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 will 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 overall, 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 overall, 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 vessel under contract to be 
purchased will 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 initial application period).
Vessel Upgrades
    A vessel may 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 can be increased only once, whether through 
refitting or vessel replacement. Such an increase cannot exceed 20 
percent of the vessel's baseline specifications. The vessel's length, 
GRT, and NT can increase only once, whether through refitting or vessel 
replacement. Any increase in any of these three specifications of 
vessel size cannot 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 can 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 vessel owners are 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 will serve as an additional permit 
baseline for these permit categories. The hold volume for a Tier 1 or 
Tier 2 permit can only be increased once, whether through refitting or 
vessel replacement. Any increase cannot exceed 10 percent of the 
vessel's baseline hold measurement. This type of upgrade can be done 
separately from the size and HP upgrades. In cases where the qualifying 
vessel has sunk or been destroyed and the mackerel permit is issued 
directly into CPH, the hold capacity baseline will be the hold capacity 
of the first replacement vessel after the permits are removed from CPH. 
Applicants that qualify for a Tier 1 or 2 mackerel permit would be 
required to submit fish hold volume measurement by December 31, 2012, 
or at the first vessel replacement, whichever is sooner. This 
requirement was not noted in the preamble, but was included in the 
regulatory text in the proposed rule.
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 establishes a restriction requiring the same entity to own both the 
vessel (along with the limited access 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 is 
permanent. 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

[[Page 68646]]

or applying for the issuance of a CPH. A vessel's limited access permit 
history will be cancelled due to the failure to renew each year, in 
which case, no limited access permit can 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 CPH remains valid without 
annual renewal until the CPH is replaced by an active vessel. 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 establishes an allocation for participants in the 
limited access mackerel fishery that hold a Tier 3 permit. Tier 3 
vessels will be allocated a maximum catch of up to 7 percent of the 
commercial mackerel quota (the remainder of the commercial mackerel 
quota will be available to Tier 1 or Tier 2 vessels). The 7 percent 
allocation will be put into effect with the 2012 specifications for the 
Atlantic Mackerel, Squid, and Butterfish (MSB) fisheries, prior to the 
effective date of the Tier 3 limited access permit. This will allow for 
monitoring of the cap as Tier 3 permits are issued to successful 
applicants. The Tier 3 allocation will be set annually during the 
specifications process. During a closure of the Tier 3 mackerel 
fishery, vessels issued a mackerel permit may not fish for, possess, or 
land more than 20,000 lb (9.08 mt) of mackerel per trip. In order to 
monitor Tier 3 landings, Amendment 11 requires owners of vessels that 
hold a Tier 3 limited access mackerel permit to submit VTRs on a weekly 
basis.

4. Open Access Permit and Possession Limit

    Any vessel, even vessels that have not been issued a mackerel 
permit before, can be issued an open access mackerel permit that 
authorizes the possession and landing of up to 20,000 lb (9.07 mt) of 
mackerel per trip. The open access possession limit stays the same 
during a closure of the directed mackerel fishery.

5. Updates to EFH Definitions

    Amendment 11 revises the EFH text descriptions for all MSB species 
based on updated data from the Northeast Fisheries 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. The amendment designates as EFH the 
area associated with 95 percent of the cumulative geometric mean 
catches for all MSB species. There are no regulatory provisions 
associated with these designations. Text descriptions and maps for the 
new EFH designation can be found in the FEIS.

6. Recreational Mackerel Allocation

    Amendment 11 establishes an allocation to the recreational fishery 
in order to incorporate recreational mackerel annual catch limits and 
accountability measures into the framework for the Council's Omnibus 
Amendment. The recreational allocation is set equal to 6.2 percent of 
the domestic mackerel allowable biological catch. 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 can take action via specifications, a framework adjustment, or 
amendment to adjust any disconnect between the recreational allocation 
and future recreational harvests.

Comments and Responses

    Six comments were submitted on Amendment 11: One on behalf of 
O'Hara Corporation and Starlight Inc; two identical comments by the 
Garden State Seafood Association (GSSA) and Lund's Fisheries 
Incorporated; one from the National Coalition for Marine Conservation 
(NCMC), a non-governmental organization devoted primarily to the 
conservation of highly migratory species and pelagic species such as 
menhaden, herring and mackerel; and two from individuals. Several 
issues not relevant to Amendment 11 were raised by various commenters; 
only the comments relevant to Amendment 11 are addressed below.

General Comments

    Comment 1: NCMC urged NMFS to disapprove the limited access program 
alternatives in Amendment 11 because, in its view, the program 
institutionalizes a fleet structure and capacity levels that are not 
compatible with sustainable management of the mackerel stock, 
especially given uncertainty in the most recent mackerel assessment 
(Transboundary Resources Assessment Committee Status Report; March 
2010). They commented that the estimated fleet harvest capacity for the 
preferred alternative is an order of magnitude higher than the long-
term projected quotas available to U.S. fishermen. They noted that this 
excess capacity could still lead to a ``race to fish,'' particularly 
because of the large number of vessels anticipated to qualify for Tier 
3, and the limited quota for this tier.
    Response: NMFS acknowledges that the mackerel stock status is 
uncertain, but does not find this to be a reason to delay development 
and implementation of a limited access mackerel program. Rather than 
drastically reducing fleet capacity, the Council sought to stratify 
vessels into tiers based on historic performance in order to allow them 
to fish for mackerel as they had in the past. This would prevent the 
fleet from substantially expanding effort. The program is expected to 
reduce the number of vessels that will be able to land more than 20,000 
lb (9.08 mt) of mackerel per trip. In 2010, there were 2,331 mackerel 
permit holders. Only 403 of these permit holders are expected to 
qualify for a limited access mackerel permit. Because an unconstrained, 
overcapitalized mackerel fleet is more likely to exceed fishing 
mortality targets, NMFS determined that the Council's measures to 
proactively reduce the current capacity and prevent future increases in 
capacity are warranted, regardless of the status of the mackerel 
resource. NMFS found the limited access program measures consistent 
with all National Standards.
    NMFS agrees that the fleet resulting from the proposed limited 
access program is estimated in Amendment 11 to have the capacity of 
catching more than expected quotas for upcoming years. However, given 
the short mackerel fishing season, the great variability in mackerel 
availability, and the inability of the fleet to harvest allowable 
quotas, harvest capacity appears to be less of a factor in the success 
of the fleet. Furthermore, hard quotas have always been used as a 
mechanism to control mackerel harvests, and will continue to be used 
following implementation of the limited access program. The institution 
of a limited access program serves as a constraint on the number of 
mackerel fishery participants, and provides an indirect control on 
mackerel catch.
    The Council designed Tier 3 to provide access to mackerel, should 
localized abundance occur where mackerel is not frequently targeted. 
NMFS determined that, because the vessels expected to qualify for Tier 
3 have historically had per-trip mackerel landings well below the 
initial 100,000-lb (45.36-mt) trip limit (average 637 lb (0.24 mt) per 
trip from 1997-2007), and have typically derived a low percentage

[[Page 68647]]

of their revenue from mackerel, it is unlikely that a race to fish will 
develop as a result of this tier. The trip limits for all of the Tiers 
can be adjusted in the future via specifications to best meet the 
objectives of the FMP.
    Comment 2: NCMC commented that the sustainable long-term yield 
values for the mackerel fishery, if used as the basis for the mackerel 
program, must be derived from an assessment that explicitly considers 
the role of mackerel as forage in the ecosystem.
    Response: The Council did not use sustainable long-term yield 
values as a basis for the limited access mackerel program. Rather, 
potential reductions in future harvest levels were presented as one of 
the justifications for reducing capacity in the fishery. Though the 
results of the recent mackerel assessment were inconclusive, 
information on the sources of natural mackerel mortality, including 
predation on mackerel, was considered in the assessment process. 
Assessment scientists are working to better incorporate ecosystem 
considerations, specifically the role of mackerel and other pelagic 
fish species as forage, in future assessments. This will also be 
considered by the Council's Scientific and Statistical Committee when 
it recommends acceptable biological catch (ABC) to the Council each 
year.
    Comment 3: NCMC commented that the impacts of the limited access 
program on important forage species, such as Atlantic herring, alewife, 
blueback herring, and American shad, is not adequately analyzed in the 
FEIS.
    Response: NMFS disagrees. Amendment 11 presents NMFS observer 
information on all species caught and discarded on observer trips and 
considers the effects of this action on non-mackerel species. Updates 
to these figures are also presented in the environmental assessments 
for annual MSB specifications. Mackerel and Atlantic herring are often 
targeted on the same trip, and landings of both species count against 
the ACLs established through each FMP. The Council is currently 
considering measures to address interactions between the mackerel 
fishery, river herring, and shads in MSB Amendment 14.
    Comment 4: NCMC commented that new scientific information regarding 
spatial and interannual variability in mackerel distribution driven by 
changes in temperature were not taken into account in the design of the 
limited access program. NMFC asserts that the mackerel limited access 
program fails to incorporate the flexibility to address variation and 
contingencies in the mackerel stock, such as spatial shifts due to 
temperature and changes to more efficient gear that increase bycatch 
and reduces forage. They assert that this deficiency is inconsistent 
with National Standard 6.
    Response: This comment fails to recognize that the limited access 
program is but a part of an overall management program. Variations and 
contingencies in the stock can be addressed through the annual 
specification setting process, which incorporates the latest available 
scientific information on the stock, including its distribution. This 
process also allows for the consideration and implementation of gear 
restrictions should they become necessary to achieve a conservation and 
management objective.

Comments on the Limited Access Permit Provisions

    Comment 5: GSSA, Lund's, O'Hara Corporation and Starlight Inc., 
were generally supportive of the limited access permit provisions, with 
the exception of the comments below. In particular, they thought the 
permit qualification alternatives effectively considered both historic 
and current fishery participants.
    Response: NMFS concurs.
    Comment 6: GSSA and Lund's were disappointed that alternatives to 
grant Tier 3 permits to limited access Atlantic herring vessels that 
would not otherwise qualify for limited access mackerel permits were 
not adopted by the Council. However, they believe that the proposed 
20,000-lb (9.07-mt) trip limit for open access mackerel permits 
addresses the issue in an alternative way. They requested that the 
Council be authorized to adjust trip limits as part of the annual 
specifications process if it is determined that the proposed open 
access trip limit is not sufficient to avoid regulatory discards of 
mackerel in the herring fishery.
    Response: NMFS agreed with the Council's determination that the 
open access trip limit was sufficient to prevent regulatory discards. 
The proposed rule included provisions to allow the Council to adjust 
trip limits for all mackerel permits in the annual specifications, and 
NMFS is implementing that provision through this final rule.
    Comment 7: GSSA and Lund's expressed concerns that delays in the 
publication and implementation of a final rule may prevent the 
implementation of the limited access program on January 1, 2012.
    Response: Recognizing that the implementation timelime put forward 
in the proposed rule may not allow for sufficient time for vessel 
owners to submit applications, and for NFMS to review and issue 
applications, the timeline has revised so that the switch to the new 
permit system will occur on March 1, 2012. NMFS will begin soliciting 
applications as soon as this final rule publishes. Vessels that wish to 
fish with a limited access permit on March 1, 2012, must submit an 
application by January 31, 2012. As explained in the preamble, vessels 
that miss this date, or that apply and do not qualify for a permit, 
will be issued an open access permit on March 1, 2012. Vessels will 
ultimately have until February 28, 2013 to submit an application for a 
limited access mackerel permit.
    Comment 8: GSSA and Lund's support the fish hold capacity 
measurement requirement for Tier 1 and 2 vessels. However, they 
expressed concerned about the feasibility of vessel owners submitting 
this measurement at the time of application.
    Response: NMFS clarifies that the fish hold capacity measurement is 
not required at the time of application. Qualifiers for Tier 1 or Tier 
2 permits will be required to submit the fish hold capacity measurement 
by December 31, 2012, or at the time of the first vessel replacement 
after the issuance of a Tier 1 or Tier 2 mackerel permit, whichever is 
sooner. This should allow sufficient time for qualifiers to gather the 
required documentation.
    Comment 9: O'Hara Corporation and Starlight Inc., support the fish 
hold capacity measurement requirement. However, they disagree with the 
proposal to allow the hold capacity baseline for vessels that qualify 
into CPH to be that of the first replacement vessel. They believe that 
this provision creates a loophole that will allow some permit holders 
to circumvent the intent of capping capacity in the fishery. They feel 
that the proposal to establish the fish hold capacity baseline at the 
time a vessel becomes active in the fishery would allow unlimited 
increases in vessel hold size prior to bringing that vessel forward for 
baseline establishment, and well after all other vessels will be 
limited by their current hold size. They recommend that NMFS disapprove 
or delay the measures related to upgrade restrictions on vessel hold 
size, including those recommended for CPH.
    Response: NMFS disagrees that this measure should be disapproved. 
The proposed regulations for vessels that qualify directly into CPH 
state that the vessel that provides the CPH eligibility establishes the 
size baseline against

[[Page 68648]]

which future vessel size limitations are evaluated. Upgrade 
restrictions on the other baseline measurements of the vessel that 
created the CPH, in particular GRT and NT, restrict the size of future 
replacement vessels. This, in turn, will limit any significant 
expansions in the fish hold capacity.

Recreational Mackerel Allocation

    Comment 10: GSSA and Lund's opposed the decision to set the 
recreational allocation at 1.5 times the recreational fishery landings 
from 1997-2007. They believe that there has not been sufficient 
justification for providing the recreational sector with an allocation 
that exceeds actual landings in that sector.
    Response: The Council selected a recreational allocation higher 
than actual recreational landings in order to buffer for uncertainty in 
recreational estimates. Past estimates have not included January or 
February activity, and recreational mackerel estimates are typically 
more uncertain than those for other species (e.g., summer flounder or 
bluefish). This final rule includes provisions for the Council to 
adjust any disconnect between the recreational allocation and actual 
recreational harvests via the annual specifications or a framework 
adjustment.

At-Sea Processing

    Comment 11: GSSA and Lund's are disappointed that alternatives to 
cap at-sea processing were not adopted. They expressed concern that 
offshore processing could disrupt the supply of mackerel to shoreside 
processors, which could have negative economic impacts on established 
fishing communities. They requested that the agency clarify that limits 
on offshore processing can be established by the Council through the 
specifications process. Such a provision would have to be established 
in an amendment to the MSB FMP.
    Response: The Council did not recommend establishing a cap on at-
sea processing for mackerel because economic allocation appeared to be 
the sole supporting rationale, which is inconsistent with National 
Standard 5 of the Magnuson-Stevens Act. NMFS agrees with the Council's 
determination. Further, NMFS can only approve or disapprove the 
Council's recommended measures in an amendment, and cannot put forward 
provisions that would allow the Council to establish a cap on at-sea 
processing through specifications in the future.

Changes From Proposed Rule to Final Rule

    The final rule adjusts the timing of the implementation of the new 
limited access permit system (from January 1, 2012, to March 1, 2012). 
The final date to submit an initial application for the limited access 
program is changed to February 28, 2013. This rulemaking also clarifies 
that the fish hold measurement requirement must be submitted by Tier 1 
and Tier 2 qualifiers by December 31, 2012. These timing adjustments 
were made to allow adequate time for applicants and qualifiers to 
gather and submit the required application materials, and to allow for 
timely processing of applications.
    The proposed rule stated that applicants whose vessels sunk, were 
destroyed, or transferred prior to March 21, 2007, and who are applying 
to place their mackerel eligibility directly into CPH, could meet the 
permit issuance requirement if a valid federal mackerel permit was 
issued at any time between March 21, 2006, and March 21, 2007. This 
final rule extends this exemption to applicants applying for active 
permits, as reflected in the regulatory text presented at Sec.  
648.4(a)(5)(iii)(c)(1). Accordingly, in this final rule, if a vessel 
was sunk, destroyed, or transferred before March 21, 2007, and a 
mackerel permit was not issued to the vessel's replacement as of March 
21, 2007, the permit issuance criteria can be met if the vessel was 
issued a valid permit at any time between March 21, 2006, and March 21, 
2007, regardless of if the applicant is applying to place a limited 
access mackerel permit on an active vessel, or into CPH. The extension 
of this provision to vessels applying for active limited access 
mackerel permits is a logical outgrowth of the provision put forward in 
the proposed rule, and eliminates an otherwise unintended adverse 
consequence of the proposed language.
    The final regulatory text presented in this rule (Sec. Sec.  
628.22, 628.24, 628.25, and 628.26) differs slightly in structure, but 
not content, from the regulations in the proposed rule. In addition, 
longfin squid was previously referred to as Loligo squid. Due to a 
recent change in the scientific name of longfin squid from Loligo 
pealeii to Doryteuthis (Amerigo) pealeii, the Council will now use the 
common name ``longfin squid'' in all official documents to avoid 
confusion. Accordingly, the regulatory text is amended to replace all 
references to ``Loligo'' squid with the term ``longfin squid.''

Classification

    The Administrator, Northeast Region, NMFS, determined that the 
amendment implemented by this final rule is necessary for the 
conservation and management of the MSB fisheries, and that it is 
consistent with the national standards of the Magnuson-Stevens Act and 
other applicable laws. NMFS, in making that determination, has taken 
into account the data, views, and comments received during the comment 
period.
    The Council prepared an FEIS for Amendment 11; the FEIS was filed 
with the Environmental Protection Agency on July 1, 2011 (76 FR 38650). 
The FEIS describes the impacts of the proposed Amendment 11 measures on 
the environment. Since most of the measures would determine the level 
of future participation of permit holders in the mackerel fishery, the 
majority of the impacts are social and economic. A notice of 
availability was published on July 6, 2011. In approving Amendment 11 
on September 30, 2011, NMFS issued a ROD identifying the selected 
alternatives. A copy of the ROD is available from NMFS (see ADDRESSES).
    This rule has been determined to be not significant for purposes of 
Executive Order 12866.
    A FRFA was prepared. The FRFA incorporates the IRFA, a summary of 
the significant issued raised by the public comments in response to the 
IRFA, and NMFS' response to those comments, and a summary of the 
analyses completed to support the action. A copy of the analyses is 
available from NMFS (see ADDRESSES).
    A description of the reasons for this action, the objectives of the 
action, and the legal basis for the final rule is found in Amendment 11 
and the preamble to the proposed rule and this final rule.

Statement of Need for This Action

    The purpose of this action is to limit capacity in the Atlantic 
mackerel fishery through the implementation of a tiered limited access 
program; to update EFH designations for all MSB species; and to 
establish an allocation for the recreational mackerel fishery.

A Summary of the Significant Issues Raised by the Public Comments in 
Response to the IRFA, a Summary of the Assessment of the Agency of Such 
Issues, and a Statement of Any Changes Made in the Proposed Rule as a 
Result of Such Comments

    Because the implementation of this amendment will affect current 
and future access to the mackerel resource, the impacts of Amendment 11 
are

[[Page 68649]]

largely social and economic. The measures will have direct negative 
economic impacts on vessel owners that do not have a qualifying vessel 
or that have fished more intensely recently than during the qualifying 
time period. The ``Comments and Responses'' section of the preamble of 
this final rule addresses issues relative to the IRFA in that 
commenters expressed concern directly and indirectly about the economic 
impacts of the measures and the impacts on small-scale vessel 
operations. NMFS' assessment of the issues raised in comments and 
responses is provided in the ``Comments and Responses'' section of the 
preamble of this final rule and are not repeated here. After taking all 
public comments into consideration, NMFS approved Amendment 11 on 
September 30, 2011.

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

    The 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 annual 
gross receipts. 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 inadequate 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. Additionally, 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, 
and so that information is not repeated here.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This action contains several new collection-of-information, 
reporting, and recordkeeping requirements.
    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 total 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 total 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.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes, Including a Statement of the 
Factual, Policy, and Legal Reasons for Selecting the Alternative 
Adopted in the Final Rule and Why Each One of the Other Significant 
Alternatives to the Rule Considered by the Agency Which Affect the 
Impact on Small Entities Was Rejected

    The following discussion also includes a description of the 
economic impacts of this action compared to significant non-selected 
alternatives as required under the RFA for inclusion in the FRFA.
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, there are six 
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

[[Page 68650]]

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, 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

[[Page 68651]]

(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 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 the collective landing of potential Tier 2 vessels 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, 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 limts 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 a 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 were designed to establish 
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.

[[Page 68652]]

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, these provisions have no direct 
economic impact on applicants that qualify for limited access mackerel 
permits. 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 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 an additional total of $5,790.40 annually in postage 
for all qualifiers.
EFH Updates
    EFH designations identify the geographic domain where fishery 
management measures could be established to minimize the adverse 
impacts of fishing and non-fishing activities on MSB species. 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 longfin squid, 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 for mackerel currently closes when it 
reaches 90 percent of the total mackerel quota (commercial plus 
recreational). It is assumed that the 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 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 
preferred 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

[[Page 68653]]

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 preferred 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.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide was prepared. 
The guide will be sent to all vessels owners that hold permits 
administered by the NMFS Northeast Regional Office. In addition, copies 
of this final rule and guide (i.e., permit holder letter) are available 
from the Regional Administrator and are also available from NMFS, 
Northeast Region (see ADDRESSES).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: November 2, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 648 is amended 
as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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


0
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 mackerel not subject to a trip limit, 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.
    (iii) If the vessel sank, was destroyed, or was transferred before 
March 21, 2007, and a mackerel permit was not issued to a replacement 
vessel as of 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.
    (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

[[Page 68654]]

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 
paragraphs (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 February 28, 2013. Applications for limited access 
mackerel permits that are not postmarked before February 28, 2013, will 
not be processed because of this regulatory restriction, and returned 
to the sender with a letter explaining the reason for its return.
    (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 certified by 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. Owners whose vessels qualify for a Tier 1 or Tier 2 
mackerel permit must submit a certified fish hold capacity measurement 
to NMFS by December 31, 2012, 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 
overall, 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 overall, 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. Hold capacity for the replacement 
vessel must be measured pursuant to paragraph (a)(5)(iii)(H)(1) of this 
section.
    (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.
    (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 permit denial. (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.

[[Page 68655]]

    (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, and include 
information to support the appeal. The appellant may also request a 
letter of authorization (LOA), as described in paragraph 
(a)(5)(iii)(M)(3) of this section. If the appeal of the denial of the 
permit application is not made within 30 days, the denial of the permit 
application shall constitute the final decision of the Department of 
Commerce. The appeal will not be reviewed without submission of 
information in support of the appeal. The Regional Administrator will 
appoint a designee to make the initial decision on the appeal.
    (ii) Should the appeal of the denial of the permit application be 
denied, the applicant may request a hearing to review the Regional 
Administrator's initial decision denying the first level appeal (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, and must include information to 
support the hearing request. If the request for a hearing to review of 
the decision denying the first level of appeal is not made within 30 
days, the initial decision will constitute the final decision of the 
Department of Commerce. If the hearing request is submitted without 
information in support of the request, the appeal will not be reviewed 
in a hearing, and the initial decision will constitute the final 
decision of the Department of Commerce. The Regional Administrator will 
appoint a hearing officer or 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 
decision of the Department of Commerce.
    (3) A vessel denied a limited access mackerel permit may fish for 
mackerel while the decision on the appeal is pending within NMFS, 
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 an LOA must 
be made when submitting an appeal of the denial of the permit 
application. 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.
* * * * *

0
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, Atlantic herring 
permit, or 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, Atlantic herring 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, Atlantic herring 
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 earlier week.
* * * * *

0
4. In Sec.  648.14, paragraph (g)(1)(iii) is removed; paragraphs 
(g)(2)(ii)(C), (D), and (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

[[Page 68656]]

issued a Limited Access mackerel permit.
    (D) Take, retain, possess, or land mackerel, squid, or butterfish 
in excess of a possession limit specified in Sec.  648.26.
    (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.  648.24.
* * * * *
    (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 longfin squid fishery. Fail to 
comply with any of the provisions specified in Sec.  648.27.
* * * * *

0
6. In Sec.  648.22, paragraphs (a)(3), (b)(2)(iv)(A) introductory text, 
(c)(3), (c)(6), and (c)(9) are revised to read as follows:


Sec.  648.22  Atlantic mackerel, squid, and butterfish specifications.

    (a) * * *
    (3) ACL; commercial ACT, including RSA, DAH, Tier 3 allocation (up 
to 7 percent of the DAH), DAP; JVP if any; TALFF, if any; and 
recreational ACT, including RSA 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) * * *
    (iv) * * *
    (A) Commercial sector ACT. Commercial ACT is composed of RSA, DAH, 
Tier 3 allocation (up to 7 percent of DAH), dead discards, and TALFF, 
if any. RSA will be based on requests for research quota as described 
in paragraph (g) of this section. DAH, Tier 3 allocation (up to 7 of 
the DAH), DAP, and JVP will be set after deduction for RSA, if 
applicable, and must be projected by reviewing data from sources 
specified in paragraph (b) of this section and other relevant data, 
including past domestic landings, projected amounts of mackerel 
necessary for domestic processing and for joint ventures during the 
fishing year, projected recreational landings, and other data pertinent 
for such a projection. The JVP component of DAH is the portion of DAH 
that domestic processors either cannot or will not use. Economic 
considerations for the establishment of JVP and TALFF include:
* * * * *
    (c) * * *
    (3) The amount of longfin squid, 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 longfin squid and 
Illex, and allocation for the Limited Access Mackerel Tier 3.
* * * * *
    (9) Recreational allocation for mackerel.
* * * * *

0
7. In Sec.  648.24, paragraph (b)(1) is revised to read as follows:


Sec.  648.24  Fishery closures and accountability measures.

* * * * *
    (b) * * *
    (1) Mackerel commercial sector EEZ closure. (i) NMFS will close the 
commercial mackerel fishery in the EEZ when the Regional Administrator 
projects that 90 percent of the mackerel DAH will be 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.  648.26. When the Regional Administrator projects that the DAH for 
mackerel will be landed, NMFS will close the mackerel fishery in the 
EEZ and the incidental catches specified for mackerel at Sec.  648.26 
will be prohibited.
    (ii) NMFS will close the Tier 3 commercial mackerel fishery in the 
EEZ when the Regional Administrator projects that 90 percent of the 
Tier 3 mackerel allocation will be harvested, if such a closure is 
necessary to prevent the DAH from being exceeded. The closure of the 
Tier 3 commercial mackerel fishery will be in effect for the remainder 
of that fishing period, with incidental catches allowed as specified in 
Sec.  648.26.
* * * * *

0
8. In Sec.  648.25, paragraph (a)(1) is revised to read as follows:


Sec.  648.25  Atlantic mackerel, squid, and butterfish framework 
adjustments to management measures.

    (a) * * *
    (1) Adjustment process. The MAFMC shall develop and analyze 
appropriate management actions over the span of at least two MAFMC 
meetings. The MAFMC 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 MAFMC meeting. The MAFMC's recommendations on adjustments or 
additions to management measures must come from one or more of the 
following categories: Adjustments within existing ABC control rule 
levels; adjustments to the existing MAFMC risk policy; introduction of 
new AMs, including sub-ACTs; 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. Measures contained within this list that 
require significant departures from previously contemplated measures or 
that are otherwise introducing new concepts may require amendment of 
the FMP instead of a framework adjustment.
* * * * *

[[Page 68657]]


0
9. In Sec.  648.26, paragraph (a) is revised to read as follows:


Sec.  648.26  Mackerel, squid, and butterfish 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.  648.24(b)(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 2400 hours, provided that the 
fishery has not been closed because 90 percent of the DAH has been 
harvested, as specified in Sec.  648.24(b)(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.  648.24(b)(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(b)(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 (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 2400 
hours.
    (ii) [Reserved]
* * * * *
[FR Doc. 2011-28772 Filed 11-4-11; 8:45 am]
BILLING CODE 3510-22-P