[Federal Register Volume 77, Number 233 (Tuesday, December 4, 2012)]
[Rules and Regulations]
[Pages 71720-71722]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29140]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120321209-2643-02]
RIN 0648-BC08


Fisheries of the Northeastern United States; Atlantic Mackerel, 
Squid, and Butterfish Fisheries; Framework Adjustment 5

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

ACTION: Final rule.

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SUMMARY: NMFS is broadening the scope of individuals and entities 
approved to complete vessel fish hold capacity certifications for 
vessels issued Tier 1 and 2 limited access Atlantic mackerel permits 
under the Atlantic

[[Page 71721]]

Mackerel, Squid, and Butterfish Fishery Management Plan (MSB FMP). In 
addition, this rule extends the deadline to submit vessel fish hold 
capacity certifications from December 31, 2012, to December 31, 2013 or 
during a vessel replacement transaction, whichever comes first.

DATES: Effective on December 3, 2012.

ADDRESSES: Copies of supporting documents used by the Mid-Atlantic 
Fishery Management Council, including the Framework Document, are 
available from: Dr. Christopher M. Moore, Executive Director, Mid-
Atlantic Fishery Management Council, Suite 201, 800 N. State Street, 
Dover, DE 19901. The Framework Document is also accessible via the 
Internet at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Lindsey Feldman, Fishery Management 
Specialist, 978-675-2179, fax 978-281-9135.

SUPPLEMENTARY INFORMATION: 

Background

    NMFS published a proposed rule for Framework Adjustment 5 on 
September 21, 2012 (77 FR 58507). Additional background information and 
detail on why and how Framework Adjustment 5 was developed are included 
in the proposed rule, and are not repeated here. Amendment 11 to the 
MSB FMP (76 FR 68642, November 7, 2011) implemented a three-tiered 
mackerel limited access program in which all qualifiers were required 
to have possessed a valid permit on March 21, 2007. The final rule 
implementing Amendment 11 provided that a fish hold capacity 
certification must be made by an individual credentialed as a Certified 
Marine Surveyor with a fishing specialty by the National Association of 
Marine Surveyors (NAMS), or by an individual credentialed as an 
Accredited Marine Surveyor with a fishing specialty by the Society of 
Accredited Marine Surveyors (SAMS). Vessel owners who have received a 
certification of their vessel's fish hold capacity by the Maine State 
Sealer of Weights and Measures also meet the fish hold capacity 
requirement. Vessel owners are required to submit documentation in 
support of their vessel's certified fish hold capacity to NMFS by 
December 31, 2012, or their first vessel replacement or upgrade, 
whichever comes first.
    This action revises the fish hold capacity certification 
requirement to allow additional individuals or entities beyond those 
with credentials approved in Amendment 11 to complete fish hold 
capacity certifications. This framework action does not make any 
changes from the proposed rule and expands the range of individuals and 
entities that are approved to complete hold capacity certifications and 
allow them also to be completed by employees or agents of a 
classification society approved by the Coast Guard pursuant to 46 
U.S.C. 3316(c), Maine State Sealer of Weights and Measures, a 
professionally licensed and/or registered Marine Engineer, or a Naval 
Architect with a professional engineer license. This action also 
extends the date that vessels are required to submit fish hold capacity 
measurements by 1 year. Due to a delay in rulemaking, vessels with 
mackerel Tier 1 and 2 permits will be required to submit fish hold 
capacity measurements by December 31, 2013, or their first vessel 
replacement or upgrade, whichever comes first, instead of December 31, 
2012.

Comments and Responses

    NMFS received four comments on the proposed rule for Framework 
Adjustment 5 from: Lund's Fisheries, Inc., a processing facility in 
Cape May, NJ; Quest Marine Services, a marine surveying company; a 
vessel owner with a mackerel permit; and a member of the general 
public.
    Comment 1: Quest Marine Services commented that the list of 
individuals or entities approved to conduct vessel capacity 
measurements should include independent accredited marine surveyors 
that are not members of a classification society such as NAMS or SAMS. 
They noted that independent surveyors have experience necessary to 
conduct commercial fishing vessel surveys and have long-standing 
relationships with the commercial fishing industry. They also commented 
in support of extending the deadline to submit vessel capacity 
measurements from December 31, 2012, to December 31, 2013.
    Response: Although independent marine surveyors may have experience 
completing commercial fishing vessel surveys and vessel hold capacity 
calculations, there are no accreditation requirements for such 
surveyors. Without any type of accreditation, such as being a member of 
a classification society, having a degree in naval architecture, etc., 
it is not possible for us to verify the qualifications of an 
independent marine surveyor. Therefore, NMFS does not support the 
inclusion of independent marine surveyors in the list of individuals or 
entities approved to complete vessel capacity measurements for Tier 1 
and Tier 2 mackerel vessels.
    Comment 2: Lund's Fisheries, Inc., commented in support of 
broadening the scope of individuals approved to complete vessel 
capacity measurements, but did not support the inclusion of Maine State 
Sealer of Weights and Measures as an approved entity as the state's 
method of certifying hold capacities is based on a volumetric 
measurement using hogsheads, which was developed for the Atlantic 
herring, but not the mackerel fishery. Lund's suggested the use of 
cubic feet as a standardized measurement and that NMFS hold a workshop 
to develop a universal standard for fish hold standardization in the 
mackerel fishery.
    Response: NMFS does not agree that the Maine State Sealer of 
Weights and Measures should be removed from the list of approved 
entities to complete vessel capacity measurements. The vessel capacity 
measurement requirement was implemented as a baseline measurement that 
will limit future upgrades to Tier 1 and 2 mackerel permits to 10 
percent above the certified baseline vessel hold capacity. The unit of 
such measurements may vary depending on the methodology used by the 
approved individual or entity (for example, the Maine State Sealer of 
Weights and Measures uses the hogshead as a unit of measures). The unit 
of the vessel capacity measurement does not have any impact on the 
measurement as a baseline specification. Vessels that submit hold 
capacity measurements in hogsheads, or any other unit of measure, will 
still be limited in any vessel replacement or upgrade to 10 percent 
above the baseline hogshead (or other) measurement. If the volumetric 
unit differs between vessels during an upgrade or replacement, accepted 
methods of unit conversion will be used (ex. 1 hogshead = 1225 lb = 
21.8 ft\3\). While we understand the importance of having a 
standardized unit of measure for vessel holds in the mackerel and 
herring fisheries for other purposes, such standardization is not 
necessary for the capacity measurement to function as a baseline 
specification.
    Comment 3: A vessel owner with a mackerel permit commented that the 
fish hold certification requirement is too expensive for small vessels 
that only catch minimal amounts of mackerel.
    Response: The vessel hold capacity measurement requirement is only 
required for vessels with Atlantic mackerel Tier 1 and 2 limited access 
permits. The trip limits for Tier 1 and Tier 2 permits are unlimited 
mackerel, and 135,000 lb per trip or per calendar day respectively. 
Vessels that are issued Tier 1 and Tier 2 mackerel permits are

[[Page 71722]]

predominantly large boats with larger catches than the commenter 
described, and therefore smaller vessels that land minimal mackerel are 
not subject to the vessel hold capacity measurement requirement. For 
smaller vessels with minimal mackerel landings, NMFS recommends 
obtaining either a Tier 3 limited access permit, which has a 100,000 
lb-trip limit, or an Atlantic mackerel open access permit, which has a 
20,000 lb-trip limit, recognizing that after the limited access program 
application period has expired, vessels will be prohibited from 
upgrading from a low to a high possession limit Tiered permit. Neither 
of these permits would require obtaining and submitting a vessel hold 
capacity measurement.
    Comment 4: A member of the public commented generally against the 
fishing industry and NOAA.
    Response: This comment did not address the subject of this 
rulemaking and therefore does not warrant a specific response within 
this rule.

Classification

    The Administrator, Northeast Region, NMFS, determined that this 
framework adjustment to the Atlantic Mackerel, Squid, and Butterfish 
FMPs is necessary for the conservation and management of the Atlantic 
mackerel, butterfish, fisheries and that it is consistent with the 
Magnuson-Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Council for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for this certification was published in the 
proposed rule and is not repeated here. No comments were received, and 
no new information has been received regarding this certification. As a 
result, a regulatory flexibility analysis was not required and none was 
prepared.
    The Assistant Administrator for Fisheries finds good cause under 
section 553(d) of the Administrative Procedure Act to waive the 30-day 
delay in effectiveness for this action. Due to a delay in rulemaking, 
this action extends the deadline for Tier 1 and 2 Atlantic mackerel 
vessels to complete vessel hold capacity measurements from December 31, 
2012, to December 31, 2013. If the effectiveness of this rule was 
delayed for 30-days from the date of publication, vessels issued Tier 1 
and 2 mackerel permits would still be required to submit hold capacity 
measurements by December 31, 2012, therefore invalidating the 1 year 
extension in this action. Because the majority of Tier 1 and 2 mackerel 
vessels have been waiting to obtain and submit vessel hold capacity 
measurements to NMFS until this rulemaking was published in the Federal 
Register, they would have minimal time and potentially added expense to 
do so if the deadline was not extended as a result of the 30-day delay 
in effectiveness. In addition, vessels would be required to have hold 
capacity measurements completed by the original entities approved under 
Amendment 11 to the MSB FMP. As this rulemaking broadens the scope of 
entities and individuals approved to complete vessel hold capacity 
measurements, delaying this rule would result in economic harm to the 
vessels that are subject to the capacity measurement requirement by 
limiting their options and constraining their time for obtaining vessel 
capacity measurements.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: November 27, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, Performing the Functions and 
Duties of the 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)(H)(1) is revised to read as 
follows:


Sec.  648.4  Vessel permits.

    (a) * * *
    (5) * * *
    (iii) * * *
    (H) * * *
    (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 
one of the following qualified individuals or entities: an individual 
credentialed as a Certified Marine Surveyor with a fishing specialty by 
the National Association of Marine Surveyors (NAMS); an individual 
credentialed as an Accredited Marine Surveyor with a fishing specialty 
by the Society of Accredited Marine Surveyors (SAMS); employees or 
agents of a classification society approved by the Coast Guard pursuant 
to 46 U.S.C. 3316(c); the Maine State Sealer of Weights and Measures; a 
professionally-licensed and/or registered Marine Engineer; or a Naval 
Architect with a professional engineer license. 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, 2013, or with 
the first vessel replacement application after a vessel qualifies for a 
Tier 1 or Tier 2 mackerel permit, whichever is sooner. The fish hold 
capacity measurement submitted to NMFS as required in this paragraph 
(a)(5)(iii)(H)(1) must include a signed certification by the individual 
or entity that completed the measurement, specifying how they meet the 
definition of a qualified individual or entity.
* * * * *
[FR Doc. 2012-29140 Filed 12-3-12; 8:45 am]
BILLING CODE 3510-22-P