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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 648
          - [Docket No. 110218142-1146-02]
          - RIN 0648-BA91

# AGENCY:

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

# ACTION:

Proposed rule; request for comments.

# SUMMARY:

NMFS proposes regulations to implement measures in Framework Adjustment 1 to the Northeast Skate Complex Fishery Management Plan (Skate FMP). Framework Adjustment 1 was developed by the New England Fishery Management Council (Council) to adjust the possession limits for the skate wing fishery in order to slow the rate of skate wing landings, so that the available Total Allowable Landings limit (TAL) is taken by the fishery over a longer duration in the fishing year (FY) than occurred in FY 2010, thus ensuring a steady market supply. The action would also allow vessels that process skate wings at sea to land skate carcasses for sale into the bait market, without counting the carcass landings against the TAL (skate wings are already converted to live weight for monitoring). Although recommended by the Council as part of Framework 1, this proposed rule announces NMFS's intention to disapprove a proposal to increase the incidental possession limit for skate wings that would apply after the skate wing possession limit trigger is reached. This proposed rule does not adjust the skate fishery specifications for FY 2011.

# DATES:

Public comments must be received no later than 5 p.m., Eastern Standard Time, on April 19, 2011.

# ADDRESSES:

                        An environmental assessment (EA) was prepared for                               ( print page 18506)                            Framework Adjustment 1 that describes the proposed action and other considered alternatives and provides a thorough analysis of the impacts of the proposed measures and alternatives. Copies of Framework 1, the EA, and the Initial Regulatory Flexibility Analysis (IRFA), are available on request from Paul J. Howard, Executive Director, New England Fishery Management Council (Council), 50 Water Street, Newburyport, MA 01950. These documents are also available online at                         *http://www.nefmc.org.*

You may submit comments, identified by 0648-BA91, by any one of the following methods:
      -  Electronic Submissions:                          Submit all electronic public comments via the Federal eRulemaking Portal:                          http://www.regulations.gov. 
      -  Fax:                          (978) 281-9135, Attn: Michael Pentony.                    
      -  Mail:                          Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on Skate Framework 1 Proposed Rule.”                    

*Instructions:*                         All comments received are part of the public record and will generally be posted to                         *http://www.regulations.gov*                         without change. All personal identifying information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.                    

NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

# FOR FURTHER INFORMATION CONTACT:

Michael Pentony, Senior Fishery Policy Analyst, (978) 281-9283; fax: (978) 281-9135.

# SUPPLEMENTARY INFORMATION:

## Background

                    In 2003, NMFS implemented the Skate FMP to manage a complex of seven skate species in the Northeast Region: Winter (                    *Leucoraja ocellata*); little (                    *L. erinacea*); thorny (                    *Amblyraja radiata*); barndoor (                    *Dipturus laevis*); smooth (                    *Malacoraja senta*); clearnose (                    *Raja eglanteria*); and rosette (                    *L. garmani*) (see 68 FR 49693, August 19, 2003). The FMP established biological reference points and overfishing definitions for each species based on abundance indices in the NMFS Northeast Fisheries Science Center bottom trawl survey.                

Amendment 3 to the Skate FMP, which was implemented in July 2010, instituted an annual catch limit (ACL) and accountability measures (AMs) for the skate fishery (see 75 FR 34049, June 16, 2010). To ensure that the ACL is not exceeded, regulations implementing Amendment 3 established a possession limit of 5,000 lb (2,268 kg) of skate wings (11,350 lb (5,148 kg) whole weight) per trip for the skate wing fishery, and an AM that further reduces the wing fishery possession limit to an incidental level of 500 lb (227 kg) of skate wings (1,135 lb (515 kg) whole weight) when 80 percent of the TAL for the wing fishery is reached. In FY 2010, the combination of increased landings of skate wings and a delay in implementation of the 5,000-lb (2,268-kg) skate wing possession limit resulted in the fishery reaching the 80-percent TAL trigger in early September. Consequently, the wing fishery has been limited to the incidental possession limit of 500 lb (227 kg) of skate wings per trip from September 3, 2010, through the end of FY 2010 on April 30, 2011.

Asserting that the imposition of the 500-lb (227-kg) skate wing possession limit so early in the FY caused disruptions in the supply of skate wings, economic hardship on fishing vessels and dealers, and threatened to undermine the market position of U.S. suppliers, members of the skate wing fishing industry requested that the Council consider options to mitigate the potential for this situation to be repeated in FY 2011. In November 2010, the Council initiated Framework 1 to change the skate wing possession limits in order to maximize the duration of the skate fishing season in FY 2011. In January 2011, the Council approved Framework 1 and recommended that NMFS implement new possession limits for the skate wing fishery, as described below.

## Proposed Measures

Framework 1 proposes the following changes to the regulations governing the skate fishery:

1. That the skate wing fishery possession limit be changed from 5,000 lb (2,268 kg) of skate wings per trip to 2,600 lb (1,179 kg) per trip from May 1 through August 31, and 4,100 lb (1,860 kg) per trip from September 1 through April 30;

2. That the skate wing fishery incidental possession limit (the limit that applies to all landings of skate wings once landings reach the appropriate TAL trigger percentage) be changed from 500 lb (227 kg) of skate wings per trip to 1,250 lb (567 kg) per trip;

3. That the skate wing fishery incidental possession limit trigger be changed from 80 percent of the skate wing TAL to 85 percent of the skate wing TAL; and

4. That the regulations governing the allowable forms of skates that may be possessed and landed be changed to allow the landing of skate carcasses separate from skate wings (currently, only whole skates or skate wings—without the associated carcasses—may be possessed and landed).

By reducing the skate wing possession limit from 5,000 lb (2,268 kg) of skate wings per trip to the lower amounts identified above, the Council intends to slow the landings of skate wings in order to promote an extended directed fishery. The Council's recommendation to impose different possession limits at different times of the year reflects advice from members of the skate fishing industry regarding the times of year when demand for skate wings is generally higher and the price is also likely to be higher. Based on data from 2009 and 2010, the average price per lb of skate wings was $0.33 for May-August and $0.64 for September-April. Thus, the proposed 2,600-lb (1,179-kg) limit would serve to constrain landings when demand and price are both lower, preserving more of the available TAL to be harvested under the higher 4,100-lb (1,860-kg) limit when demand and price are more favorable.

                    The Council's recommendation to change the trigger point at which the incidental possession limit is imposed is also an attempt to lengthen the duration of the directed skate wing fishery. However, based on the analysis prepared by the Council's Skate Plan Development Team and presented to the Council at its January 2011 meeting, the combination of a 1,250-lb (567-kg) incidental possession limit and an 85-percent trigger point would be expected to result in landings exceeding the skate wing TAL by more than 7 percent. Amendment 3 to the Skate FMP established the TAL as the limit for skate landings, taking into account the needs of the skate wing and bait fisheries (                    *i.e.,*                     allocating the overall skate TAL to the skate wing and bait fisheries according to specific percentages), discards of skates in all fisheries that encounter skates, and the biological status of the resource. The management measures implemented in Amendment 3 were designed to constrain overall skate landings to the TAL, and, in situations in which a TAL is exceeded, the Amendment 3 regulations require automatic                           ( print page 18507)                        adjustments to the TAL trigger threshold (on a point-for-point basis). If the wing TAL were to be exceeded by 7 percent, as the Council's analysis indicates is likely, then the Amendment 3 regulations would require the TAL trigger for the following FY to be reduced from 85 percent of the TAL to 78 percent of the TAL, forcing an even earlier transition to the incidental possession limit. It would be inconsistent with the intent of Framework 1 (implement measures to extend the length of the directed skate wing fishery) and the objectives of Amendment 3 (implement measures to constrain landings to within the available TAL) to alter both the incidental skate wing possession limit and the TAL trigger point, as proposed by the Council. The Council's analysis suggests that the trigger point could be increased to 85 percent of the TAL if the incidental wing limit is maintained at the current 500-lb (227-kg) level, while still remaining within the TAL. Therefore, this proposed rule announces NMFS's intention to disapprove the proposed change to the incidental skate wing possession limit at § 648.322(b)(2). Disapproving the change in the incidental limit would not affect the other measures proposed in this action. NMFS seeks comments on the Council's proposed action, as well as keeping the incidental possession limit at 500 lb (227 kg) in the event this proposed measure is disapproved.                

The Council's recommendation to allow possession and landing of skate carcasses is intended to promote a fuller utilization of the skate resource, by enabling fishermen to retain the carcasses that would otherwise be discarded at sea once the skate wings are cut and removed. Currently, vessels must either retain the whole skates and cut the wings after landing, or discard the skate carcasses at sea once the wings are removed. This proposed change would allow fishermen to retain the skate carcasses and sell them as bait, increasing the economic yield of the skate resource without any change in fishing mortality. Under the proposed revision to the regulations, skates could be possessed or landed either as wings only, wings with associated carcasses possessed separately, or in whole form, or any combination of the three, provided that the weight of skate carcasses does not exceed 1.27 times the weight of skate wings on board. This ratio, based upon established wing-to-whole weight conversion factor for skates, would help assure that the only carcasses possessed and landed correspond to skates which have had their wings removed and retained by the vessel for sale. When any combination of wings, carcasses, and whole skates are possessed, the possession limit would be based on the equivalent whole weight limit where wing weight is converted to whole weight using the wing to whole weight conversion factor of 2.27. For example, 100 lb (45.4 kg) of skate wings × 2.27 = 227 lb (103.1 kg) of whole skates. If wings and carcasses were possessed separately in this case, the vessel could possess 100 lb (45.4 kg) of skate wings and 100 × 1.27 = 127 lb (57.6 kg) of carcasses. The sum of the two products must not exceed the whole weight possession limit. This action is not intended to allow the landing of skate carcasses without skate wings.

NMFS seeks comments on all of the proposed measures in Framework 1, as well as on keeping the incidental skate wing possession limit at 500 lb (227 kg) if this measure is disapproved.

As required under section 303(c) of the Magnuson-Stevens Act, the Council reviewed the draft regulations and deemed them necessary and appropriate for implementation of Framework 1. Technical changes to the regulations deemed necessary by the Secretary for clarity may be made, as provided under section 304(b) of the Magnuson-Stevens Act.

## Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has made a preliminary determination that this proposed rule, subject to NMFS's concern about the proposed increase in the incidental skate wing possession limit, is consistent with the Skate FMP, Amendment 3, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

The Office of Management and Budget has determined that this proposed rule is not significant for the purposes of Executive Order 12866.

                    The Council prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act (RFA), included in Framework 1 and supplemented by information contained in the preamble to this proposed rule. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section of the preamble and in the                     **SUMMARY**                     of this proposed rule. A summary of the IRFA follows. A copy of this analysis is available from the Council (see                     **ADDRESSES**                    ).                

All of the entities (fishing vessels) affected by this action are considered small entities under the Small Business Administration size standards for small fishing businesses ($4.0 million in annual gross sales). Therefore, there are no disproportionate effects on small versus large entities. Information on costs in the fishery is not readily available and individual vessel profitability cannot be determined directly; therefore, expected changes in gross revenues were used as a proxy for profitability.

This action does not introduce any new reporting, recordkeeping, or other compliance requirements. This proposed rule does not duplicate, overlap, or conflict with other Federal rules.

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

The participants in the commercial skate fishery were defined using Northeast dealer reports to identify any vessel that reported having landed 1 lb (0.45 kg) or more of skates during calendar year 2010. These dealer reports identified 690 vessels that landed skates for the skate wing market in states from Maine to North Carolina out of 2,607 vessels that held a Federal skate permit. Of the 690 vessels that landed at least 1 lb (0.45 kg) of skates for the wing market, 592 vessels landed at least some amount of skates in wing form, and these vessels would be affected by the proposed change to allow vessels landing skate wings to also land the associated carcasses for sale as bait.

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

                    The purpose of Framework 1 is to adjust the possession limits affecting the skate wing fishery in order to extend the duration of the fishing season during which the fishery could land skate wings at “directed” levels (                    *i.e.,*                     before the possession limits are reduced to incidental landings levels), while constraining the overall skate wing landings to remain within the TAL. To achieve these ends, the Council considered several alternatives for each of three principal management measures: (1) The primary possession limit affecting the directed skate wing fishery; (2) the trigger point (as a percentage of the TAL) at which the primary possession limit is reduced to a lower, incidental level of allowable landings; and (3) the possession limit that would be imposed once the possession limit trigger is reached.                          ( print page 18508)    

The Council considered several alternatives for the primary skate wing possession limit: (1) 5,000 lb (2,268 kg) of wings per trip (the status quo); (2) 4,100 lb (1,860 kg) of wings per trip; (3) 3,200 lb (1,451 kg) of wings per trip; (4) 2,600 lb (1,179 kg) of wings per trip; and (5) the proposed action of a 2,600-lb (1,179-kg) possession limit from May 1 through August 31, and a 4,100-lb (1,860-kg) possession limit from September 1 through April 30. The challenge in achieving the objective of this action is to determine a possession limit low enough to prolong the directed fishing season without substantially reducing the efficacy of the skate wing fishery by choosing a possession limit too low to make profitable fishing trips. Compared to the other alternatives considered, the proposed action is expected to maximize profitability for the skate wing fishery by constraining landings during the spring and summer months (May-August) when demand and price are generally lower (average of $0.33/lb during 2009 and 2010), preserving more of the available TAL for the fall and early winter months when demand and price are generally higher (average of $0.64/lb during 2009 and 2010) and allowing higher levels of landings during this time.

In addition to changing the primary possession limit, the Council also considered three alternatives for the trigger point at which the possession limit is reduced: (1) 80 percent of the TAL (the status quo); (2) 85 percent of the TAL; and (3) 75 percent of the TAL. The higher the trigger percentage, the longer the directed fishing season would last before the possession limit is reduced; however, because landings continue—at albeit reduced rates due to the lower possession limit—the desire to extend the directed fishing season must be balanced with the need to prevent the overall landings from exceeding the TAL. The Council's analysis shows that a 5-percent change in the trigger point could make a 2-week difference in the length of the directed fishing season. The likelihood of exceeding the TAL at the different potential trigger points depends, in part, on the incidental possession limit that would be imposed once the trigger is reached.

The Council considered three alternatives for the incidental possession limit: (1) 500 lb (227 kg) of skate wings per trip (the status quo); (2) 750 lb (340 kg) of skate wings per trip; and (3) 1,250 lb (567 kg) of skate wings per trip. Although the Council recommended increasing the incidental possession limit to 1,250 lb (567 kg) per trip in order to increase the potential revenue of vessels landing skates after the possession limit is reduced, NMFS intends to disapprove this particular proposal as inconsistent with the requirement to ensure that overall skate landings do not exceed the available TAL (the Council's analysis indicates that this combination of measures would result in landings exceeding the TAL by more than 7 percent). The Council's analysis shows that the overarching purpose of Framework 1 to lengthen the directed fishing season while not exceeding the TAL is best served by increasing the trigger point to 85 percent of the TAL but maintaining the status quo incidental possession limit of 500 lb (227 kg) of skate wings per trip. Although an increase in the incidental possession limit from 500 lb (227 kg) of skate wings per trip to 1,250 lb (567 kg) of skate wings per trip would increase the potential vessel revenue by up to $250-$500 per trip (based on the average ex-vessel price paid for skate wings in 2009 and 2010), NMFS's disapproval of this measure would impose no additional costs on the affected industry, as the disapproval leaves in place the current 500-lb (227-kg) possession limit.

In addition to the primary alternatives considered in this action, the Council also considered a change in the regulations to allow skate carcasses to be landed rather than discarded at sea. This proposed measure is expected to have no effect on the overall mortality of skates caught, but could result in marginal increases in per trip fishing revenue for vessels that cut skate wings at sea and land the remaining carcasses for sale as lobster bait (estimates range from approximately $360 per trip at the 2,600-lb (1,179-kg) possession limit to approximately $570 per trip at the 4,100-lb (1,860-kg) possession limit). Because the only significant alternative considered in this case is the status quo, under which the landing of skate carcasses would continue to be prohibited, the Council's proposed action in this case maximizes the potential revenue available to the fishing industry.

# List of Subjects in 50 CFR Part 648

      - Fisheries
      - Fishing
      - Recordkeeping and reporting requirements

Dated: March 29, 2011.

John Oliver,

Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

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

# PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

2. In § 648.322, revise paragraph (b) to read as follows:

§ 648.322 

* * * * *

                            (b)                             *Skate wing possession and landing limits.*                             A vessel or operator of a vessel that has been issued a valid Federal skate permit under this part, provided the vessel fishes under an Atlantic sea scallop, NE multispecies, or monkfish DAS as specified at §§ 648.53, 648.82, and 648.92, respectively, or is also a limited access multispecies vessel participating in an approved sector described under § 648.87, unless otherwise exempted under § 648.80 or paragraph (c) of this section, may fish for, possess, and/or land up to the allowable trip limits of skate wings (with appropriate whole weight equivalents) specified as follows:                        

(1) Up to 2,600 lb (1,179 kg) of skate wings (5,902 lb (2,677 kg) whole weight) per trip from May 1 through August 31, and 4,100 lb (1,860 kg) of skate wings (9,307 lb (4,222 kg) whole weight) per trip from September 1 through April 30, except for a vessel fishing on a declared NE multispecies Category B DAS described under § 648.85(b), which is limited to no more than 220 lb (100 kg) of skate wings (500 lb (227 kg) whole weight) per trip (or any prorated combination of skate wings and whole skates based on the conversion factor for wing weight to whole weight of 2.27—for example, 100 lb (45.4 kg) of skate wings × 2.27 = 227 lb (103.1 kg) of whole skates).

                            (2)                             *In-season adjustment of skate wing possession limits.*                             When the Regional Administrator projects that 85 percent of the annual skate wing fishery TAL has been landed, the Regional Administrator shall, through a notice in the                             **Federal Register**                             consistent with the Administrative Procedure Act, reduce the skate wing trip limit to 1,250 lb (567 kg) of skate wings (2,837 lb (1,287 kg) whole weight, or any prorated combination of skate wings and whole skates based on the conversion factor for wing weight to whole weight of 2.27) for the remainder of the fishing year, unless such a reduction would be expected to prevent attainment of the annual TAL.                        

                            (3)                             *Incidental possession limit for vessels not under a DAS.*                             A vessel issued a Federal skate permit that is not fishing under an Atlantic sea scallop, NE multispecies, or monkfish DAS as                                   ( print page 18509)                                specified at §§ 648.53, 648.82, and 648.92, respectively, or is a limited access multispecies vessel participating in an approved sector described under § 648.87 but not fishing on one of the DAS specified at §§ 648.53, 648.82, or 648.92, may retain up to 500 lb (227 kg) of skate wings or 1,135 lb (515 kg) of whole skate, or any prorated combination of skate wings and whole skates based on the conversion factor for wing weight to whole weight of 2.27, per trip.                        

                            (4)                             *Allowable forms of skate landings.*                             Except for vessels fishing under a skate bait letter of authorization as specified at § 648.322(c), a vessel may possess and/or land skates as wings only (wings removed from the body of the skate and the remaining carcass discarded), wings with associated carcasses possessed separately (wings removed from the body of the skate but the associated carcass retained on board the vessel), or in whole (intact) form, or any combination of the three, provided that the weight of the skate carcasses on board the vessel does not exceed 1.27 times the weight of skate wings on board. When any combination of skate wings, carcasses, and whole skates are possessed and/or landed, the applicable possession or landing limit shall be based on the whole weight limit, in which any wings are converted to whole weight using the wing to whole weight conversion factor of 2.27. For example, if the vessel possesses 100 lb (45.4 kg) of skate wings, the whole weight equivalent would be 227 lb (103.0 kg) of whole skates (100 lb (45.4 kg) × 2.27), and the vessel could possess up to 127 lb (57.6 kg) of skate carcasses (100 lb (45.4 kg) of skate wings × 1.27). A vessel may not possess and/or land skate carcasses and only whole skates.                        

* * * * *

[FR Doc. 2011-7949 Filed 4-1-11; 8:45 am]

BILLING CODE 3510-22-P