[Federal Register Volume 77, Number 35 (Wednesday, February 22, 2012)]
[Proposed Rules]
[Pages 10463-10466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4111]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120208116-2115-01]
RIN 0648-BB83


Fisheries of the Northeastern United States; Proposed 2012-2013 
Northeast Skate Complex Fishery Specifications

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This rule proposes catch limits and associated measures for 
the Northeast Skate Complex Fishery for the 2012-2013 fishing years. 
The proposed action was developed by the New England Fishery Management 
Council pursuant to the provisions of the Northeast Skate Complex 
Fishery Management Plan. The proposed catch limits are supported by the 
best available scientific information and reflect recent increases in 
skate biomass.

DATES: Public comments must be received no later than 5 p.m., eastern 
standard time, on March 23, 2012.

ADDRESSES: An environmental assessment (EA) was prepared 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 the EA and the Initial Regulatory Flexibility 
Analysis (IRFA), are available on request from Paul J. Howard, 
Executive Director, New England Fishery Management Council, 50 Water 
Street, Newburyport, MA 01950. These documents are also available 
online at http://www.nefmc.org.
    You may submit comments, identified by NOAA-NMFS-2012-0015, by any 
one of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal www.regulations.gov. To 
submit comments via the e-Rulemaking Portal, first click the ``Submit a 
Comment'' icon, and then enter ``NOAA-NMFS-2012-0015'' in the keyword 
search. Locate the document you wish to comment on from the resulting 
list, and click on the ``Submit a Comment'' icon on the right of that 
line.
    <bullet> Fax: (978) 281-9135, Attn: Tobey Curtis.
    <bullet> Mail: Daniel Morris, Acting Regional Administrator, NMFS, 
Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 
01930. Mark the outside of the envelope, ``Comments on Skate 
Specifications.''
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are a part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov. All personal identifying information (e.g., name, 
address, etc.) submitted voluntarily by the sender will 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). Attachments to electronic comments will be accepted 
in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats 
only.

FOR FURTHER INFORMATION CONTACT: Tobey Curtis, Fishery Policy Analyst, 
(978) 281-9273; fax: (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    The New England Fishery Management Council (Council) is responsible 
for developing management measures for skate fisheries in the 
northeastern U.S. through the Northeast Skate Complex Fishery 
Management Plan (Skate FMP). Seven skate species are managed under the 
Skate FMP: Winter, little, thorny, barndoor, smooth, clearnose, and 
rosette. The Council's Scientific and Statistical Committee (SSC) 
reviews the best available information on the status of skate

[[Page 10464]]

populations and makes recommendations on acceptable biological catch 
(ABC) for the skate complex (all seven species). This recommendation is 
then used as the basis for catch limits and other management measures 
for the skate fisheries.
    Amendment 3 to the Skate FMP was implemented in July 2010 (75 FR 
34049, June 16, 2010). It instituted an annual catch limit (ACL) and 
accountability measures (AMs) for the skate fishery, created an annual 
review and specifications process, and set fishery specifications for 
the 2010-2011 fishing years (through April 30, 2012). The ACL was set 
equal to the ABC recommendation of the SSC (41,080 metric tons (mt)). 
Amendment 3 also implemented an annual catch target (ACT), which is 75 
percent of the ACL, and annual total allowable landings (TALs) for the 
skate wing and bait fisheries (TAL = ACT--dead discards and state 
landings), three seasonal quotas for the bait fishery, and possession 
limits in each fishery. Skate wing possession limits were subsequently 
modified by Framework Adjustment 1 (76 FR 28328, May 17, 2011).
    In June 2011, the SSC gave the Council a new recommendation for 
skate ABC to be used for the 2012-2013 fishing years (50,435 mt). The 
proposed specifications reflect the best available scientific 
information on skates. The ABC is calculated by multiplying the median 
catch/biomass ratio by the most recent 3-year average skate biomass 
from the NMFS bottom trawl survey. A calibration workshop was conducted 
in early 2011 to determine the best method to calibrate skate survey 
biomass between the new survey vessel, Henry B. Bigelow, and the 
retired vessel, Albatross IV. The workshop resulted in minor updates to 
skate overfishing definitions (described below). Significant increases 
in the survey biomass of little and winter skates through autumn 2010 
supported increases in the ABC recommendation. Additionally, new 
research on the discard mortality of winter and little skates in trawl 
gear indicates that the assumed discard mortality rate of 50 percent is 
too high, and that the dead discard portion of the catch has been 
overestimated in the past. Updates to estimates on state waters and 
transfer at sea landings were also incorporated.
    In light of the significant increase in ABC, the Council requested 
that NMFS implement the revised catch limits through a Secretarial 
emergency action for the remainder of the 2011 fishing year. NMFS 
reviewed the Council's request and published a final rule on November 
28, 2011, implementing increases in ABC, ACL, ACT, and TALs (76 FR 
66856, October 28, 2011). The emergency action provided an otherwise 
unavailable economic opportunity by allowing the fishery to harvest 
more skates and have a longer fishing season during the 2011 fishing 
year. This also helped avoid the detrimental economic impacts that 
would have been associated with possibly closing the skate fisheries in 
the absence of the emergency action. These proposed specifications are 
intended to replace the measures implemented by the 2011 emergency 
action (which expire April 30, 2012), but are similar to the emergency 
action measures in most cases.

Proposed Measures

    Based on the June 2011ABC recommendation from the SSC, the Council 
proposed the following specifications for the skate fishery for the 
2012-2013 fishing years:
    1. That the skate ABC and ACL be specified at 50,435 mt;
    2. That the ACT be specified at 37,826 mt;
    3. That the TAL be specified at 23,365 mt (the skate wing fishery 
would be allocated 66.5 percent of the TAL (15,538 mt) and the skate 
bait fishery would be allocated 33.5 percent of the TAL (7,827 mt));
    4. That the skate bait possession limit be increased from 20,000 lb 
(9,072 kg) to 25,000 lb (11,340 kg) whole weight per trip for vessels 
carrying a valid Skate Bait Letter of Authorization; and,
    5. That the skate wing possession limits be reduced from 2,600 lb 
(1,179 kg) to 2,200 lb (998 kg) wing weight per trip for Season I (May 
1 through August 31), and decreased from 4,100 lb (1,860 kg) to 3,600 
lb (1,633 kg) wing weight per trip for Season II (September 1 through 
April 30).
    As described in the 2011 emergency action, the Council-recommended 
TAL uses an inappropriately low estimate of state water landings that 
must be deducted from the ACT (3 percent of total landings). More 
recent analyses using a more accurate definition of state water 
landings indicate that the 2007-2009 average state water landings were 
approximately 6.7 percent of total landings. Therefore, this action 
proposes to use the same TAL specified in the emergency action (21,561 
mt), rather than the slightly higher TAL proposed by the Council and 
described above. This would effectively keep the skate TALs and 
associated quotas at status quo levels through the 2013 fishing year 
(Table 1). This TAL is 56 percent greater than the 2010 and initial 
2011 TAL (no action alternative), continuing higher allowable harvest 
levels for skates.
    This rule proposes minor reductions to the skate wing possession 
limits in an effort to avoid implementation of the incidental skate 
wing possession limit (i.e., closure of the directed skate wing 
fishery) before the end of the fishing year. The possession limit 
analysis used by the Council was based on skate landing rates in 2010 
and early 2011 when landing rates were particularly high. However, 
landing rates have slowed during 2011, and the wing fishery is not 
currently projected to harvest 100 percent of its 2011 TAL. Therefore, 
there may not be justification to reduce the skate wing possession 
limits for the 2012-2013 fishing years. This rule proposes to increase 
the skate bait possession limit because the bait fishery consistently 
under-harvested its quotas in 2010 and 2011. NMFS is requesting comment 
on whether or not these proposed possession limit changes should be 
implemented.
    Based upon the results of the trawl survey vessel calibration, this 
rule proposes to update stock status determination criteria for skates. 
These updates include refinement of the survey strata used for 
determining the stock status of each skate species, as described in the 
EA for this action (see the ADDRESSES section of this proposed rule for 
how to obtain copies of the EA). The updates of stock status 
determination criteria also adjust the overfishing definition for 
clearnose skate. Overfishing would be deemed to be occurring if the 3-
year moving average biomass of clearnose skate declines by 40 percent 
or more (compared to the current threshold of 30 percent), reflecting 
the higher coefficients of variation (i.e., variability in catch 
between individual survey tows) for this species with the new trawl 
survey vessel.
    The specifications in this proposed rule also apply previously 
unaccounted for skate bait transfers at sea against the skate bait 
fishery quotas. Analysis indicates that bait transfers at sea, on 
average, represent approximately 18 percent of total skate landings, 
and need to be considered when monitoring catch. Finally, in order to 
be consistent with the requirements of Amendment 3, this rule also 
proposes to remove a reference to Northeast multispecies sectors in the 
skate wing possession limit regulations found at Sec.  648.322 (b). The 
skate wing possession limits were not intended to apply to sector 
vessels, and this reference should have been removed from the Amendment 
3 final

[[Page 10465]]

rule. This rule does not propose changes to any other regulations 
implemented by Amendment 3 or Framework Adjustment 1 (including 
inseason TAL triggers or incidental possession limits).

              Table 1--No Action and Proposed 2012-2013 Skate ABC and Associated Catch Limits (mt)
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                                                                                                      Percent
                                                                     No action       Preferred      difference
----------------------------------------------------------------------------------------------------------------
ABC.............................................................          41,080          50,435             +23
ACL.............................................................          41,080          50,435             +23
ACT.............................................................          30,810          37,826             +23
TAL.............................................................          13,848          21,561             +56
Wing TAL........................................................           9,209          14,338             +56
Bait TAL........................................................           4,639           7,223             +56
Assumed Discard Rate............................................           52.0%           36.3%             -30
Assumed State Landings..........................................            3.0%            6.7%            +123
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    The proposed specifications are expected to maintain positive 
economic impacts for the fishery, such as the increases in skate 
revenues that resulted from implementation of the emergency rule, while 
also maintaining the conservation objectives of the Skate FMP. Although 
the landings of skate wings are expected to remain high under the 
proposed specifications, overall catch of skates will not likely be 
significantly affected due to the nature of the skate wing fishery, 
which is primarily an incidental fishery within the groundfish and 
monkfish fisheries. Under the no action alternative with lower quotas, 
once the possession limit trigger is reached, skates that are caught in 
these primary fisheries above the incidental possession limit of 500 lb 
(227 kg) would be discarded. This proposed rule would enable fishermen 
to continue to retain and land for sale those skates that would 
otherwise have to be discarded.

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 is consistent with the Skate FMP, 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). The IRFA describes the economic 
impact this proposed rule, if adopted, would have on small entities. A 
description of this 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 the complete IRFA analysis is available from 
the Council (see ADDRESSES).
    The Small Business Administration (SBA) considers commercial 
fishing entities (NAICS code 114111) to be small entities if they have 
no more than $4 million in annual sales, while the size standard for 
charter/party operators (NAICS code 487210) is $7 million in sales. All 
of the entities (fishing vessels) affected by this action are 
considered small entities under the SBA size standards for small 
fishing businesses. Although multiple vessels may be owned by a single 
owner, available tracking of ownership is not readily available to 
reliably ascertain affiliated entities. Therefore, for the purposes of 
this analysis, each permitted vessel is treated as a single small 
entity and is determined to be a small entity under the RFA. 
Accordingly, there are no differential impacts between large and small 
entities under this rule. 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 proposed increase in the skate ACL and TALs would impact 
vessels that hold Federal open access commercial skate permits that 
participate in the skate fishery. According to the Framework 1 final 
rule and Final Regulatory Flexibility Analysis (76 FR 28328, May 17, 
2011), as of December 31, 2010, the maximum number of small fishing 
entities (as defined by the SBA) that may be affected by this action is 
2,607 entities (number of skate permit holders). However, during 
fishing year 2010, only 601 vessels landed any amount of skate.

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

    The purpose of annual fishery specifications is to ensure that 
management measures accurately reflect the best available scientific 
information. The proposed action represents the maximum catch limits 
that could be implemented under the approved Skate FMP and regulations. 
Alternatives with higher catch limits, that might provide increased 
fishing opportunities, were not considered because such alternatives 
would be inconsistent with the Magnuson-Stevens Act and the Skate FMP. 
Any other alternatives would provide fewer fishing opportunities than 
the proposed action; therefore, the IRFA analyzes only the proposed 
action and the no action alternative.
    The purpose of the proposed action is to maintain the increased 
skate catch and landing limits of the emergency rule, thereby providing 
economic benefits to the fishery by continuing to extend the duration 
of the fishing season. This contrasts with the negative economic 
impacts that would be associated with the lower catch limits and 
potential fishery closures that would occur under the no action 
alternative. The proposed action is expected to maximize the short-term 
profitability for the skate fishery by continuing higher levels of 
landings for fishing years 2012 and 2013. It is also expected to 
minimize potential long-term economic impacts by implementing catch 
levels that are sustainable and that contribute to stock rebuilding. 
Therefore, the economic impacts resulting from the proposed

[[Page 10466]]

action as compared to the no action alternative are positive.
    The proposed action is almost certain to result in greater revenue 
from skate landings. Based on recent landing information, the skate 
fishery is able to land close to the full amount of skates allowable 
under the quotas. The estimated potential revenue from the sale of 
skates under the proposed catch limits is approximately $9.8 million 
per year, compared to $5.8 million if this action were not implemented. 
However, vessels that participate in the skate fishery derive most (an 
average of 96 percent) of their revenues from other fisheries (e.g., 
groundfish, monkfish). In fishing year 2010, the average total revenue 
(from all species combined) for the 601 vessels that landed skates was 
$234,389, of which an average of $17,042 was derived from skates. 
Therefore alterations to catch limits of other species would be 
expected to result in greater impacts on total fishing revenues than 
would alterations in skate catch limits. The proportion of revenue 
derived from skates may change over time, as skate prices have begun 
increasing in recent years, and more vessels have been deriving a 
greater proportion of their income from skates.

    Dated: February 15, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping.

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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

    2. In Sec.  648.322, revise paragraph (b) introductory text, (b)(1) 
and (c)(4) to read as follows:


Sec.  648.322  Skate allocation, possession, and landing provisions.

* * * * *
    (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, and fishes under an Atlantic sea scallop, NE multispecies, 
or monkfish DAS as specified at Sec. Sec.  648.53, 648.82, and 648.92, 
respectively, unless otherwise exempted under Sec.  648.80 or paragraph 
(c) of this section, may fish for, possess, and/or land up to the 
allowable trip limits specified as follows:
    (1) Up to 2,200 lb (998 kg) of skate wings (4,994 lb (2,265 kg) 
whole weight) per trip from May 1 through August 31, and 3,600 lb 
(1,633 kg) of skate wings (8,172 lb (3,707 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 Sec.  
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 X 2.27 = 227 lb (103.1 kg) of whole skates).
* * * * *
    (c) * * *
    (4) The vessel owner or operator possesses or lands no more than 
25,000 lb (11,340 kg) of only whole skates less than 23 inches (58.42 
cm) total length, and does not possess or land any skate wings or whole 
skates greater than 23 inches (58.42 cm) total length.
* * * * *
[FR Doc. 2012-4111 Filed 2-21-12; 8:45 am]
BILLING CODE 3510-22-P