3434 Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Proposed Rules 

trends, we have determined that the 

murrelet is likely to become endangered 

in the foreseeable future unless the 

current population decline is arrested. 

Nothing in our assessment indicates that 

the currently observed population 

decline is transient. Rather, our threats 

assessment indicates that it is 

reasonable to expect that the species 

will continue to be exposed to a broad 

range of threats across its listed range. 

Although some threats have been 

reduced, most continue unabated and 

new threats now strain the ability of the 

murrelet to successfully reproduce. In 

summary, our analysis indicates that 

reproductive success is currently too 

low to sustain the population, manmade 

and natural threats are likely to 

continue at current or increased levels, 

and the population is likely to continue 

to decline such that the species is likely 

to become endangered in the foreseeable 

future and, therefore, continues to 

warrant threatened status. 

Finding 

On the basis of the best available 

scientific and commercial information, 

as discussed above, we find that the 

Washington/Oregon/California 

population of the murrelet is a valid 

DPS and is likely to become endangered 

within the foreseeable future (i.e., it is 

threatened, as defined by the ESA). 

Therefore, removing this DPS of the 

murrelet from the List is not warranted. 

References Cited 

A complete list of all references cited 

herein is available upon request from 

the Washington Fish and Wildlife Office 

(see ADDRESSES). 

Author 

The primary authors of this document 

are the staff of the U.S. Fish and 

Wildlife Service (see ADDRESSES). 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: December 22, 2009. 

Daniel M. Ashe, 

Deputy Director, Fish and Wildlife Service. 

[FR Doc. 2010–951 Filed 1–20–10; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 080228326–91445–02] 

RIN 0648–AW30 

Fisheries of the Northeastern United 

States; Northeast Skate Complex 

Fishery; Amendment 3 

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 Amendment 3 

to the Northeast Skate Complex Fishery 

Management Plan (Skate FMP). 

Amendment 3 was developed by the 

New England Fishery Management 

Council (Council) to rebuild overfished 

skate stocks and implement annual 

catch limits (ACLs) and accountability 

measures (AMs) consistent with the 

requirements of the reauthorized 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act). Amendment 3 

would implement a rebuilding plan for 

smooth skate and establish an ACL and 

annual catch target (ACT) for the skate 

complex, total allowable landings (TAL) 

for the skate wing and bait fisheries, 

seasonal quotas for the bait fishery, 

reduced possession limits, in-season 

possession limit triggers, and other 

measures to improve management of the 

skate fisheries. This proposed rule also 

includes skate fishery specifications for 

fishing years (FY) 2010 and 2011. 

DATES: Public comments must be 

received no later than 5 p.m., eastern 

standard time, on February 22, 2010. 

ADDRESSES: A final environmental 

impact statement (FEIS) was prepared 

for Amendment 3 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 

Amendment 3, the FEIS, 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–AW30, 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: Tobey 

Curtis. 

• 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 Amendment 3 Proposed Rule.’’ 

Instructions: No comments will be 

posted for public viewing until after the 

comment period has closed. 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: 

Tobey Curtis, Fishery Policy Analyst, 

(978) 281–9273; 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). 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. In February 

2007, NMFS informed the Council that, 

based on trawl survey data updated 

through 2006, winter skate was 

considered overfished. The Council was 

therefore required to initiate a 

rebuilding plan for winter skate, 

consistent with the Magnuson-Stevens 

Act. 

After considering a wide range of 

issues, alternatives, and public input, 

the Council submitted a draft 

environmental impact statement (DEIS) 

for Amendment 3 to NMFS. The Notice 

of Availability (NOA) for the DEIS 

published in the Federal Register on 

September 26, 2008 (73 FR 55843). In 

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Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Proposed Rules 3435 

October 2008, the Council held four 

public hearings on the draft 

amendment, and public comments on 

the DEIS were accepted through 

November 10, 2008. At the time the 

amendment was initiated, the objectives 

of Amendment 3 were to rebuild winter 

skate and thorny skate (a species which 

has been overfished since FMP 

implementation) to their respective 

biomass targets, and to implement ACLs 

and AMs for the skate complex, 

consistent with the reauthorized 

Magnuson-Stevens Act. However, over 

the course of developing the 

amendment and subsequent to the 

publication of the DEIS, the objectives 

were modified to reflect more recent 

scientific information. Primarily, this 

includes the results of a new stock 

assessment completed in December 

2008 by the Northeast Data Poor Stocks 

Working Group (DPWG). This 

assessment updated the minimum 

biomass thresholds and biomass targets 

for six of the seven skate species in the 

complex, resulting in a change in status 

for some species. 

These new biomass reference points, 

as well as the most recent trawl survey 

data, indicate that winter skate is not 

overfished; however, thorny skates 

remain overfished, and smooth skates 

are now also considered to be 

overfished. Thorny skate was also 

determined to be experiencing 

overfishing in 2007 (but not in 2008); 

therefore, under the requirements of the 

reauthorized Magnuson-Stevens Act, the 

Skate FMP must be amended to 

establish a rebuilding plan for smooth 

skate and establish ACLs and AMs by 

2011. The final objectives of 

Amendment 3 are to prevent overfishing 

of and rebuild smooth and thorny skate, 

promote biomass increases in other 

skate stocks, and implement ACLs and 

AMs for the skate complex. 

Proposed Measures 

The proposed regulations are based 

on the description of the measures in 

Amendment 3. Under section 305(d) of 

the Magnuson-Stevens Act, the 

Secretary has general responsibility to 

promulgate regulations that may be 

necessary to carry out the provisions of 

an approved FMP or amendment. NMFS 

has noted several instances where it has 

interpreted the language in Amendment 

3 to account for any missing detail or 

ambiguity in the Council’s description 

of the proposed measures. NMFS seeks 

comments on all of the proposed 

measures in Amendment 3. 

New Biological Reference Points 

Due to the data poor status of skate 

stocks, including a lack of reliable 

species-specific information on landings 

and discards, poor understanding of 

population dynamics and basic life 

history, and the inability to estimate the 

biomass that would support harvest at 

maximum sustainable yield (BMSY) or 

the fishing mortality rate that would 

produce maximum sustainable yield 

(FMSY) using more traditional methods, 

the DPWG recommended continued use 

of trawl survey indices for status 

determinations. However, they 

recommended that the time series used 

to estimate biomass thresholds and 

targets be updated to include the most 

recent years of survey data. For all 

species except barndoor, the BMSY proxy 

(biomass target) is defined as the 75th 

percentile of the appropriate survey 

(autumn or spring trawl survey) biomass 

index time series for that species: 

autumn 1975–2007 for clearnose; spring 

1982–2008 for little; autumn 1967–2007 

for winter and rosette; and autumn 

1963–2007 for smooth and thorny. For 

barndoor, the BMSY proxy remains 

unchanged as the average 1963–1966 

autumn survey biomass index, because 

the survey did not catch barndoor skates 

during a protracted time period of years. 

A skate species is considered 

overfished if its 3-year moving average 

survey biomass falls below one-half of 

its BMSY proxy value (biomass 

threshold). Therefore, since the current 

biomass indices for thorny and smooth 

skates are below their respective 

thresholds, they are considered 

overfished (Table 1). The current 

biomass for clearnose and rosette skates 

are above their respective biomass 

targets, so they are considered to be 

above BMSY. Winter, little, and barndoor 

skates are not overfished, but not yet 

rebuilt to their biomass targets (Table 1). 

Fishing mortality reference points, 

defined by percentage changes in the 

survey biomass indices, remain 

unchanged. No skates are currently 

subject to overfishing, although thorny 

skate experienced overfishing in 2007. 

The existing and proposed biomass 

reference points are shown in Table 1, 

relative to the most recent survey 

biomass for each species. 

TABLE 1—COMPARISON BETWEEN CURRENT SKATE BIOMASS STATUS (THROUGH AUTUMN 2008) WITH EXISTING AND

PROPOSED BIOMASS REFERENCE POINTS

Skate species 

Stratified mean biomass (kg/tow) 

Current 

biomass Threshold Proposed threshold Target Proposed target 

Winter ............................................................................................. 5 .23 3 .43 2 .80 6 .46 5 .60 

Little ................................................................................................ 5 .04 3 .27 3 .51 6 .54 7 .03 

Barndoor ........................................................................................ 1 .02 0 .81 0 .81 1 .62 1 .62 

Thorny ............................................................................................ 0 .42 2 .20 2 .06 4 .41 4 .12 

Smooth ........................................................................................... 0 .13 0 .16 0 .14 0 .31 0 .29 

Clearnose ....................................................................................... 1 .04 0 .28 0 .38 0 .56 0 .77 

Rosette ........................................................................................... 0 .052 0 .015 0 .024 0 .029 0 .048 

2010–2011 ACL, ACT, and TAL 

In each fishing year, the ACL for the 

skate complex would be set equal to the 

acceptable biological catch (ABC) 

recommended by the Council’s 

Scientific and Statistical Committee 

(SSC). Through FY 2011, the SSC has 

recommended an ABC based on the 

median catch/biomass exploitation rate 

of the skate complex multiplied by the 

2005–2007 average survey biomass, 

which is 67.556 million lb (30,643 mt) 

per year. To account for management 

uncertainty, an ACT would be set at 75 

percent of the ACL, or 50.667 million lb 

(22,982 mt) per year. Due to the 

difficulties in monitoring skate discards 

in all fisheries during a fishing year, a 

projection of total annual dead discards 

would be subtracted from the ACT to 

generate the TAL for the skate fisheries. 

After deducting an estimate of skate 

landings from vessels fishing solely in 

state waters (approximately 3 percent of 

the total landings), the remaining TAL 

for Federal waters in FY 2010 and 2011 

would be 20.783 million lb (9,427 mt) 

per year. 

The TAL would be allocated between 

the skate wing fishery and the skate bait 

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3436 Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Proposed Rules 

fishery based on historic landings 

proportions. The skate wing fishery 

predominantly lands winter skate, while 

the bait fishery predominantly lands 

little skate. The skate wing fishery 

would receive 66.5 percent of the TAL, 

or 13.821 million lb (6,269 mt), and the 

skate bait fishery would receive 33.5 

percent of the TAL, or 6.962 million lb 

(3,158 mt). Landings of skates would be 

monitored and allocated to the 

appropriate fishery quota through 

information currently required to be 

submitted by seafood dealers on a 

weekly basis. 

If this action is not effective by the 

start of the fishing year on May 1, 2010, 

all skate landings that accrue from May 

1, 2010, until the date of 

implementation of the final rule for this 

action will count against the respective 

skate wing and bait TALs for fishing 

year 2010, as described above. 

Possession Limits and Seasons 

All vessels possessing, retaining, and 

landing skates would continue to be 

required to obtain a Federal open access 

skate permit. Subject to the additional 

restrictions described in the following 

sections, a possession limit of 1,900 lb 

(862 kg) wing wt. (4,313 lb (1,956 kg) 

whole wt.) would be implemented for 

any vessels in possession of skates, 

unless the vessel is in possession of a 

Skate Bait Letter of Authorization. All 

skates landed in wing form or sold for 

use as food would accrue against the 

skate wing TAL. To keep the skate wing 

TAL from being exceeded, when 80 

percent of the annual skate wing TAL is 

landed, the 1,900 lb (862 kg) skate wing 

possession limit would be reduced to 

500 lb (227 kg) wing wt. (1,135 lb (515 

kg) whole wt.) for the remainder of the 

fishing year. This would dilute 

incentives to target skates but allow 

some incidental catches of skates to be 

landed rather than discarded. 

This proposed rule retains the 

requirement that a vessel possessing a 

valid Federal skate permit must also fish 

under an Atlantic sea scallop, NE 

multispecies, or monkfish day-at-sea 

(DAS) in order to possess, retain, and 

land skates, with two exceptions: (1) 

That the vessel possesses a limited 

access multispecies permit and is 

enrolled and participating in an 

approved sector described at § 648.87; 

or (2) that the vessel is otherwise 

exempted under § 648.80. 

This action would also implement an 

incidental skate trip limit of 500 lb (227 

kg) wing wt. or 1,135 lb (515 kg) whole 

wt. for any vessel issued a Federal skate 

permit that is not fishing under a DAS 

and is not participating in an approved 

sector under the Northeast Multispecies 

FMP. 

A possession limit of 20,000 lb (9,072 

kg) whole wt. would be implemented 

for vessels participating in the skate bait 

fishery that also possess a Skate Bait 

Letter of Authorization. The existing 

requirements of the Skate Bait Letter of 

Authorization would remain in effect, 

including the requirement to land skates 

in only whole form, to be sold only as 

bait, a maximum skate size limit of 23 

inches (58 cm) total length, and a 

minimum participation period of 7 

days. To help maintain a consistent 

market supply of bait skates, the skate 

bait TAL would be split into three 

fishing seasons per year. All skates 

landed in whole form that are sold for 

use as bait would accrue against the 

skate bait TAL. When 90 percent of the 

skate bait quota is harvested in each 

season, the possession limit would be 

reduced to the whole weight equivalent 

of the skate wing fishery possession 

limit until the next season, whether it be 

1,900 lb (862 kg) or 500 lb (227 kg) wing 

weight at the time. 

As an additional conservation 

measure, vessels declared to be fishing 

on a Northeast Multispecies Category B 

Day-at-Sea would have a skate 

possession limit of 220 lb (100 kg) wing 

wt. (500 lb (227 kg) whole wt.). 

Accountability Measures 

If the annual TAL (landings target) 

allocated to either fishery is exceeded 

by more than 5 percent in a given year, 

the possession limit trigger (80 percent 

in the wing fishery, 90 percent in the 

bait fishery) would be reduced by 1 

percent for each 1-percent overage for 

that fishery. This would help prevent 

repeated excessive TAL overages. 

If it is determined that the ACL for the 

skate complex was exceeded in a given 

year, including landings and estimates 

of discards, then the ACL–ACT buffer 

(25 percent, initially) would be 

increased by 1 percent for each 1- 

percent overage. For example, if the 

ACL is exceeded by 5 percent, the ACL– 

ACT buffer would be increased to 30 

percent in the subsequent fishing year, 

which could effectively reduce 

allowable landings. 

Annual Review, SAFE Reports, and 

Specifications Process 

In place of the ‘‘Skate Baseline 

Review’’ process included in the original 

Skate FMP, the Skate Plan Development 

Team (PDT) would convene annually to 

review skate stock status, fishery 

landings and discards, and determine if 

any AMs were triggered in the previous 

year. The annual review would also 

incorporate an assessment of changes to 

other fishery management plans that 

may impact skates, and determine if 

changes to skate management measures 

may be warranted. If changes to the 

Skate FMP are warranted, the Skate PDT 

would recommend changes via 

specifications or framework adjustment 

to the Council. Specifications for the 

skate fisheries could be implemented for 

up to 2 years. 

A Stock Assessment and Fishery 

Evaluation (SAFE) report for the skate 

complex would be completed every 2 

years by the Skate PDT. The SAFE 

report would be the primary vehicle for 

the presentation of all updated 

biological and socio-economic 

information regarding the skate complex 

and its associated fisheries, and provide 

source data for any adjustments to the 

management measures that may be 

needed to continue to meet the goals 

and objectives of the FMP. 

At its April 2009 meeting, the Council 

reviewed the draft regulations and 

deemed them necessary and appropriate 

for implementation of Amendment 3, as 

required under section 303(c) of the 

Magnuson-Stevens Act. 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 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. Pursuant to the procedures 

established to implement section 6 of 

E.O. 12866, the Office of Management 

and Budget has determined that this 

proposed rule is not significant. 

A NOA for Amendment 3 was 

published on December 28, 2009. Public 

comments are being solicited on the 

amendment through the end of the 

comment period on February 26, 2010.. 

Public comments on the proposed rule 

must be received by the end of the 

comment period on the amendment, as 

published in the NOA, to be considered 

in the decision to approve or disapprove 

the amendment. All comments received 

by the end of the comment period on 

the amendment, whether specifically 

directed to the amendment, or the 

proposed rule, will be considered in the 

approval/disapproval decision. 

Comments received after that date will 

not be considered in the approval/ 

disapproval decision on the 

amendment. To be considered, 

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Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Proposed Rules 3437 

comments must be received by close of 

business on the last day of the comment 

period; that does not mean postmarked 

or otherwise transmitted by that date. 

The Council prepared a FEIS for 

Amendment 3; a NOA was published on 

January 22, 2010. The FEIS describes 

the impacts of the proposed 

Amendment 3 measures on the 

environment. Because most of the 

measures were designed to reduce skate 

landings, the impacts are primarily 

social and economic, as well as 

biological. In general, all biological 

impacts are expected to be positive. 

Although the economic and social 

impacts may be negative in the short 

term, particularly for vessels that have 

traditionally targeted or relied 

substantially on sales of skates, the longterm social and economic benefits of 

sustainable skate fisheries would be 

positive. 

An IRFA was prepared, as required by 

section 603 of the Regulatory Flexibility 

Act (RFA), and is included in 

Amendment 3 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 are 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 2007. These dealer reports 

identified 542 vessels that landed skates 

in states from Maine to North Carolina 

out of 2,685 vessels that held a Federal 

skate permit. 

Economic Impacts of the Proposed 

Action Compared to Significant NonSelected Alternatives 

The proposed action to establish 

possession limits for both the wing and 

bait skate fishery are expected to impact 

approximately 127 vessels out of the 

vessels included in the analysis 

(approximately 25 percent). 

Collectively, the proposed action would 

reduce skate revenues by 14.9 percent, 

and would reduce total revenues by 5.5 

percent. Given that skate biomass is not 

expected to reach optimum yield (OY) 

without taking any action, the shortterm economic losses resulting from the 

proposed actions are likely to be less 

than any future losses in yield and 

revenue. 

In terms of impacts to individual 

vessels, an analysis of dependency on 

the skate fishery indicates that almost 

75 percent of the vessels included in the 

analysis have less than a 5-percent 

dependency on the skate fishery. The 

estimated impact on gross sales 

increases markedly in relation to 

dependency on the skate fishery among 

the 127 vessels estimated to be 

adversely affected by this action. The 18 

affected vessels that show a less than 1- 

percent dependency on the skate fishery 

are estimated to have less than a 2- 

percent impact on gross revenues. By 

contrast, estimated revenue loss is 27.8 

percent for the 75 affected vessels at the 

upper end of the dependency spectrum 

(4.75-percent dependent or greater). 

All of the alternatives considered in 

this action are based on the same TACs. 

However, some of the alternatives (1A 

and 3A) utilize a hard TAC approach 

while others (1B, 2, 3B and 4) use a 

target TAC approach. Under the hard 

TAC approach, the Regional 

Administrator would publish a notice 

prohibiting skate landings for the 

remainder of the fishing year once it is 

determined that skate landings will 

exceed the overall TAC. Adjustments to 

the TAC due to an overage would occur 

in the next fishing year. Under the target 

TAC approach, the Regional 

Administrator would determine when 

landings will meet or are likely to meet 

the TAL for each fishery (wing or bait), 

and publish a notice prohibiting 

landings in excess of the incidental 

limit for the remainder of the fishing 

year. 

The preferred alternative is basically 

a modified version of Alternative 2, 

with slightly higher possession limits 

for the skate bait fishery (20,000 lb 

versus 14,200 lb whole weight), a 

seasonal quota for the bait fishery 

(similar to Alternative 4), and modified 

accountability measures. A summary of 

the possession limits considered under 

each alternative is provided in Table 2. 

It should be noted that the Alternatives 

1A and 1B propose the same possession 

limits for both the wing and bait 

fisheries, while Alternative 4 has the 

same possession limit for the wing 

fishery only. Alternatives 2, 3A, and 3B 

have the same possession limits for both 

the wing and bait fisheries. Table 2. 

Comparison of possession limits under 

each alternative. 

Alternative number 

Skate wing possession limit Skate bait possession limit 

Option 1 Option 2 Option 1 Option 2 

1A ........................................

(Hard TAC, and time/area 

management).

4,800 wing lb ....................

(2,177 kg) .........................

10,896 whole lb ................

(4,942 kg) .........................

3,800 wing lb ....................

(1,724 kg) .........................

8,626 whole lb. 

(3,913 kg). 

6,800 lb .............................

(3,084 kg) .........................

12,100 lb. 

(5,488 kg). 

1B ........................................

(Target TAC and time/area 

management).

4,800 wing lb ....................

(2,177 kg) .........................

10,896 whole lb ................

(4,942 kg) .........................

3,800 wing lb ....................

(1,724 kg) .........................

8,626 whole lb. 

(3,913 kg). 

6,800 lb .............................

(3,084 kg) .........................

12,100 lb. 

(5,488 kg). 

2 ..........................................

(Target TAC with time/area 

management as accountability measure only).

2,500 wing lb ....................

(1,134 kg) .........................

5,675 whole lb ..................

(2,574 kg) .........................

1,900 wing lb ....................

(862 kg) ............................

4,313 whole lb. 

(1,956 kg). 

8,200 lb .............................

(3,719 kg) .........................

14,200 lb. 

(6,396 kg). 

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3438 Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Proposed Rules 

Alternative number 

Skate wing possession limit Skate bait possession limit 

Option 1 Option 2 Option 1 Option 2 

3A ........................................

(Hard TAC) ..........................

2,500 wing lb ....................

(1,134 kg) .........................

5,675 whole lb ..................

(2,574 kg) .........................

1,900 wing lb ....................

(862 kg) ............................

4,313 whole lb. 

(1,956 kg). 

8,200 lb .............................

(3,719 kg) .........................

14,200 lb. 

(6,396 kg). 

3B ........................................

(Target TAC) .......................

2,500 wing lb ....................

(1,134 kg) .........................

5,675 whole lb ..................

(2,574 kg) .........................

1,900 wing lb ....................

(862 kg) ............................

4,313 whole lb. 

(1,956 kg). 

8,200 lb .............................

(3,719 kg) .........................

14,200 lb. 

(6,396 kg). 

4 ..........................................

(Target TAC) .......................

4,800 wing lb ....................

(2,177 kg) .........................

10,896 whole lb ................

(4,942 kg) .........................

3,800 wing lb ....................

(1,724 kg). 

8,626 whole lb. 

(3,913 kg). 

Quota managed by season with no possession limit. 

All of the non-preferred alternatives 

considered in this action would have 

resulted in a reduction in revenue. 

Alternative 4 would affect the least 

number of vessels (99) and have the 

least impact on total revenue (2.8 

percent), while alternatives 3A and 3B 

would affect the largest number of 

vessels (145) and have the greatest 

impact on total revenue (6.1 percent). 

The estimated economic impacts 

associated with Alternatives 1A and 1B 

are in between the two other nonpreferred alternatives and are similar to 

the preferred alternative—affecting 

approximately 128 vessels and resulting 

in an estimated 5.1-percent reduction in 

total revenues. It should be noted that 

although Alternative 4 appears to have 

the least impact on revenue, the 

quantified economic effects of this 

alternative are underestimated since it 

does not include the likely negative 

impacts associated with quota 

management for the skate bait fishery. 

These impacts could not be quantified 

because the timing and affects are 

unpredictable and will vary from year to 

year. 

List of Subjects in 50 CFR Part 648 

Fisheries, Fishing, Recordkeeping and 

reporting requirements. 

Dated: January 14, 2010. 

James W. Balsiger, 

Acting Assistant Administrator for Fisheries, 

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 § 648.13, paragraph (h)(2) is 

revised to read as follows: 

§ 648.13 Transfers at sea. 

* * * * * 

(h) Skates. (1) Except as provided in 

paragraph (h)(2) of this section, all 

persons or vessels issued a Federal skate 

permit are prohibited from transferring, 

or attempting to transfer, at sea any 

skates to any vessel, and all persons or 

vessels not issued a Federal skate permit 

are prohibited from transferring, or 

attempting to transfer, at sea to any 

vessel any skates while in the EEZ, or 

skates taken in or from the EEZ portion 

of the Skate Management Unit. 

(2) Vessels and vessel owners or 

operators issued Federal skate permits 

under § 648.4(a)(14) may transfer at sea 

skates taken in or from the EEZ portion 

of the Skate Management Unit, 

provided: 

(i) The transferring vessel possesses 

on board a valid letter of authorization 

issued by the Regional Administrator as 

specified under § 648.322(c); and 

(ii) The transferring vessel and vessel 

owner or operator comply with the 

requirements specified at § 648.322(c). 

* * * * * 

3. In § 648.14, paragraphs (v)(1)(ii), 

(v)(3)(i) and (v)(3)(ii)(A) are revised to 

read as follows: 

§ 648.14 Prohibitions. 

* * * * * 

(v) * * * 

(1) * * * 

(ii) Onboard a federally permitted 

lobster vessel (i.e., transfer at sea 

recipient) while in possession of only 

whole skates as bait that are less than 

the maximum size specified at 

§ 648.322(c). 

* * * * * 

(3) * * * 

(i) Skate wings. Fail to comply with 

the conditions of the skate wing 

possession and landing limits specified 

at § 648.322(b), unless holding a valid 

letter of authorization to fish for and 

land skates as bait only at § 648.322(c). 

(ii) * * * 

(A) Transfer at sea, or attempt to 

transfer at sea, to any vessel, any skates 

unless in compliance with the 

provisions of §§ 648.13(h) and 

648.322(c). 

* * * * * 

4. In § 648.80, paragraphs 

(b)(5)(i)(C)(1) and (2) and (b)(6)(i)(D)(1) 

and (2) are revised to read as follows: 

§ 648.80 NE Multispecies regulated mesh 

areas and restrictions on gear and methods 

of fishing. 

* * * * * 

(b) * * * 

(5) * * * 

(i) * * * 

(C) * * * 

(1) The vessel is called into the 

monkfish DAS program (§ 648.92) and 

complies with the skate possession limit 

restrictions at § 648.322; 

(2) The vessel has a valid letter of 

authorization on board to fish for skates 

as bait only, and complies with the 

requirements specified at § 648.322(c); 

or 

* * * * * 

(6) * * * 

(i) * * * 

(D) * * * 

(1) The vessel is called into the 

monkfish DAS program (§ 648.92) and 

complies with the skate possession limit 

restrictions at § 648.322; 

(2) The vessel has a valid letter of 

authorization on board to fish for skates 

as bait only, and complies with the 

requirements specified at § 648.322(c); 

or 

* * * * * 

5. Revise § 648.320 to read as follows: 

§ 648.320 Skate FMP review and 

monitoring. 

(a) Annual review and specifications 

process. The Council, its Skate Plan 

Development Team (PDT), and its Skate 

Advisory Panel shall monitor the status 

of the fishery and the skate resources. 

(1) The Skate PDT shall meet at least 

annually to review the status of the 

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species in the skate complex. At a 

minimum, this review shall include 

annual updates to survey indices, 

fishery landings and discards; a reevaluation of stock status based on the 

updated survey indices and the FMP’s 

overfishing definitions; and a 

determination of whether any of the 

accountability measures specified under 

§ 648.323 were triggered. The review 

shall also include an analysis of changes 

to other FMPs (e.g., Northeast 

Multispecies, Monkfish, Atlantic 

Scallops, etc.) that may impact skate 

stocks, and describe the anticipated 

impacts of those changes on the skate 

fishery. 

(2) If new and/or additional 

information becomes available, the 

Skate PDT shall consider it during this 

annual review. Based on this review, the 

Skate PDT shall provide guidance to the 

Skate Committee and the Council 

regarding the need to adjust measures in 

the Skate FMP to better achieve the 

FMP’s objectives. After considering 

guidance, the Council may submit to 

NMFS its recommendations for changes 

to management measures, as 

appropriate, through the specifications 

process described in this section, the 

framework process specified in 

§ 648.321, or through an amendment to 

the FMP. 

(3) For overfished skate species, the 

Skate PDT and the Council shall 

monitor the trawl survey index as a 

proxy for stock biomass. As long as the 

3-year average of the appropriate weight 

per tow increases above the average for 

the previous 3 years, it is assumed that 

the stock is rebuilding to target levels. 

If the 3-year average of the appropriate 

survey mean weight per tow declines 

below the average for the previous 3 

years, then the Council shall take 

management action to ensure that stock 

rebuilding will achieve target levels. 

(4) Based on the annual review 

described above and/or the Stock 

Assessment and Fishery Evaluation 

(SAFE) Report described in paragraph 

(b) of this section, recommendations for 

acceptable biological catch (ABC) from 

the Scientific and Statistical Committee, 

and any other relevant information, the 

Skate PDT shall recommend to the Skate 

Committee and Council the following 

annual specifications for harvest of 

skates: An annual catch limit (ACL) for 

the skate complex set less than or equal 

to ABC; an annual catch target (ACT) for 

the skate complex set less than or equal 

to 75 percent of the ACL; and total 

allowable landings (TAL) necessary to 

meet the objectives of the FMP in each 

fishing year (May 1–April 30), specified 

for a period of up to 2 fishing years. 

(5) Recommended measures. The 

Skate PDT shall also recommend 

management measures to the Skate 

Committee and Council to assure that 

the specifications are not exceeded. 

Recommended measures should 

include, but are not limited to: 

(A) Possession limits in each fishery; 

(B) In-season possession limit triggers 

for the wing and/or bait fisheries; and 

(C) Required adjustments to in-season 

possession limit trigger percentages or 

the ACL–ACT buffer, based on the 

accountability measures specified at 

§ 648.323. 

(6) Taking into account the annual 

review and/or SAFE Report described in 

paragraph (b) of this section, the advice 

of the Scientific and Statistical 

Committee, and any other relevant 

information, the Skate PDT may also 

recommend to the Skate Committee and 

Council changes to stock status 

determination criteria and associated 

thresholds based on the best scientific 

information available, including 

information from peer-reviewed stock 

assessments of the skate complex and its 

component species. These adjustments 

may be included in the Council’s 

specifications for the skate fisheries. 

(7) Council recommendation. The 

Council shall review the 

recommendations of the Skate PDT, 

Skate Committee, and Scientific and 

Statistical Committee, any public 

comment received thereon, and any 

other relevant information, and make a 

recommendation to the Regional 

Administrator on appropriate 

specifications and any measures 

necessary to assure that the 

specifications will not be exceeded. The 

Council’s recommendation must 

include supporting documentation, as 

appropriate, concerning the 

environmental, economic, and social 

impacts of the recommendations. The 

Regional Administrator shall review the 

recommendations and publish a rule in 

the Federal Register proposing 

specifications and associated measures, 

consistent with the Administrative 

Procedure Act. If the specifications 

published in the Federal Register differ 

from those recommended by the 

Council, the reasons for any differences 

must be clearly stated and the revised 

specifications must satisfy the criteria 

set forth in this section. If the final 

specifications are not published in the 

Federal Register for the start of the 

fishing year, the previous year’s 

specifications shall remain in effect 

until superseded by the final rule 

implementing the current year’s 

specifications, to ensure that there is no 

lapse in regulations while new 

specifications are completed. 

(b) Biennial SAFE Report—(1) The 

Skate PDT shall prepare a biennial 

Stock Assessment and Fishery 

Evaluation (SAFE) Report for the NE 

skate complex. The SAFE Report shall 

be the primary vehicle for the 

presentation of all updated biological 

and socio-economic information 

regarding the NE skate complex and its 

associated fisheries. The SAFE Report 

shall provide source data for any 

adjustments to the management 

measures that may be needed to 

continue to meet the goals and 

objectives of the FMP. 

(2) In any year in which a SAFE 

Report is not completed by the Skate 

PDT, the annual review process 

described in paragraph (a) of this 

section shall be used to recommend any 

necessary adjustments to specifications 

and/or management measures in the 

FMP. 

6. Revise § 648.321 to read as follows: 

§ 648.321 Framework adjustment process. 

(a) Adjustment process. To implement 

a framework adjustment for the Skate 

FMP, the Council shall develop and 

analyze proposed actions over the span 

of at least two Council meetings (the 

initial meeting agenda must include 

notification of the impending proposal 

for a framework adjustment) and 

provide advance public notice of the 

availability of both the proposals and 

the analyses. Opportunity to provide 

written and oral comments shall be 

provided throughout the process before 

the Council submits its 

recommendations to the Regional 

Administrator. 

(1) Council review and analyses. In 

response to the annual review, or at any 

other time, the Council may initiate 

action to add or adjust management 

measures if it finds that action is 

necessary to meet or be consistent with 

the goals and objectives of the Skate 

FMP. After a framework action has been 

initiated, the Council shall develop and 

analyze appropriate management 

actions within the scope of measures 

specified in paragraph (b) of this 

section. The Council shall publish 

notice of its intent to take action and 

provide the public with any relevant 

analyses and opportunity to comment 

on any possible actions. Documentation 

and analyses for the framework 

adjustment shall be available at least 1 

week before the final meeting. 

(2) Council recommendation. After 

developing management actions and 

receiving public testimony, the Council 

may make a recommendation to the 

Regional Administrator. The Council’s 

recommendation shall include 

supporting rationale, an analysis of 

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impacts required under paragraph (a)(1) 

of this section, and a recommendation 

to the Regional Administrator on 

whether to issue the management 

measures as a final rule. If the Council 

recommends that the framework 

measures should be issued directly as a 

final rule, without opportunity for 

public notice and comment, the Council 

shall consider at least the following 

factors and provide support and 

analysis for each factor considered: 

(i) Whether the availability of data on 

which the recommended management 

measures are based allows for adequate 

time to publish a proposed rule, and 

whether regulations have to be in place 

for an entire harvest/fishing season; 

(ii) Whether there has been adequate 

notice and opportunity for participation 

by the public and members of the 

affected industry in the development of 

the Council’s recommended 

management measures; 

(iii) Whether there is an immediate 

need to protect the resource or to 

impose management measures to 

resolve gear conflicts; and 

(iv) Whether there will be a 

continuing evaluation of management 

measures adopted following their 

implementation as a final rule. 

(3) The Regional Administrator may 

publish the recommended framework 

measures in the Federal Register. If the 

Council’s recommendation is first 

published as a proposed rule and the 

Regional Administrator concurs with 

the Council’s recommendation after 

receiving additional public comment, 

the measures shall then be published as 

a final rule in the Federal Register. 

(4) If the Regional Administrator 

approves the Council’s 

recommendations, the Secretary may, 

for good cause found under the standard 

of the Administrative Procedure Act, 

waive the requirement for a proposed 

rule and opportunity for public 

comment in the Federal Register. The 

Secretary, in so doing, shall publish 

only the final rule. Submission of 

recommendations does not preclude the 

Secretary from deciding to provide 

additional opportunity for prior notice 

and comment in the Federal Register. 

(5) The Regional Administrator may 

approve, disapprove, or partially 

approve the Council’s recommendation. 

If the Regional Administrator does not 

approve the Council’s specific 

recommendation, the Regional 

Administrator must notify the Council 

in writing of the reasons for the action 

prior to the first Council meeting 

following publication of such decision. 

(b) Possible framework adjustment 

measures. Measures that may be 

changed or implemented through 

framework action, provided that any 

corresponding management adjustments 

can also be implemented through a 

framework adjustment, include: 

(1) Skate permitting and reporting; 

(2) Skate overfishing definitions and 

related targets and thresholds; 

(3) Prohibitions on possession and/or 

landing of individual skate species; 

(4) Skate possession limits; 

(5) Skate closed areas (and 

consideration of exempted gears and 

fisheries); 

(6) Seasonal skate fishery restrictions 

and specifications; 

(7) Target TACs for individual skate 

species; 

(8) Hard TACs/quotas for skates, 

including species-specific quotas, 

fishery quotas, and/or quotas for nondirected fisheries; 

(9) Establishment of a mechanism for 

TAC set-asides to conduct scientific 

research, or for other reasons; 

(10) Onboard observer requirements; 

(11) Gear modifications, requirements, 

restrictions, and/or prohibitions; 

(12) Minimum and/or maximum sizes 

for skates; 

(13) Adjustments to exemption area 

requirements, area coordinates, and/or 

management lines established by the 

FMP; 

(14) Measures to address protected 

species issues, if necessary; 

(15) Description and identification of 

EFH; 

(16) Description and identification of 

habitat areas of particular concern; 

(17) Measures to protect EFH; 

(18) OY and/or MSY specifications; 

(19) Changes to the accountability 

measures described at § 648.323; 

(20) Changes to TAL allocation 

proportions to the skate wing and bait 

fisheries; 

(21) Changes to seasonal quotas in the 

skate bait or wing fisheries; 

(22) Reduction of the baseline 25- 

percent ACL–ACT buffer to less than 25 

percent; and 

(23) Changes to catch monitoring 

procedures. 

(c) Emergency action. Nothing in this 

section is meant to derogate from the 

authority of the Secretary to take 

emergency action under section 305(c) 

of the Magnuson-Stevens Act. 

7. Revise § 648.322 to read as follows: 

§ 648.322 Skate allocation, possession, 

and landing provisions. 

(a) Allocation of TAL. (1) A total of 

66.5 percent of the annual skate 

complex TAL shall be allocated to the 

skate wing fishery. All skate products 

that are landed in wing form, for the 

skate wing market, or classified by 

Federal dealers as food as required 

under § 648.7(a)(1)(i), shall count 

against the skate wing fishery TAL. 

(2) A total of 33.5 percent of the 

annual TAL shall be allocated to the 

skate bait fishery. All skate products 

that are landed for the skate bait market, 

or classified by Federal dealers as bait 

as required under § 648.7(a)(1)(i), shall 

count against the skate bait fishery TAL. 

The annual skate bait fishery TAL shall 

be allocated in three seasonal quota 

periods as follows: 

(i) Season 1—May 1 through July 31, 

30.8 percent of the annual skate bait 

fishery TAL shall be allocated; 

(ii) Season 2—August 1 through 

October 31, 37.1 percent of the annual 

skate bait fishery TAL shall be allocated; 

and 

(iii) Season 3—November 1 through 

April 30, the remainder of the annual 

skate bait fishery TAL not landed in 

Seasons 1 or 2 shall be allocated. 

(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 specified as 

follows: 

(1) Up to 1,900 lb (862 kg) of skate 

wings (4,313 lb (1,956 kg) whole weight) 

per trip, 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 80 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 500 lb (227 

kg) of skate wings (1,135 lb (515 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 

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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 

specified at §§ 648.53, 648.82, and 

648.92, respectively, and is not a limited 

access multispecies vessel participating 

in an approved sector described under 

§ 648.87, 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. 

(c) Bait Letter of Authorization (LOA). 

A skate vessel owner or operator under 

this part may request and receive from 

the Regional Administrator an 

exemption from the skate wing 

possession limit restrictions for a 

minimum of 7 consecutive days, 

provided that at least the following 

requirements and conditions are met: 

(1) The vessel owner or operator 

obtains and retains onboard the vessel a 

valid LOA. LOAs are available upon 

request from the Regional 

Administrator. 

(2) The vessel owner or operator 

possesses and/or lands only whole 

skates less than 23 inches (58.42 cm) 

total length. 

(3) The vessel owner or operator 

fishes for, possesses, or lands skates 

only for use as bait. 

(4) The vessel owner or operator 

possesses or lands no more than 20,000 

lb (9,072 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. Vessels 

that possess, and/or land any 

combination of skate wings and whole 

skates less than 23 inches (58.42 cm) 

total length must comply with the 

possession limit restrictions under 

paragraph (b) of this section for all 

skates or skate parts on board. 

(5) The vessel owner or operator 

complies with the transfer at sea 

requirements at § 648.13(h). 

(d) In-season adjustment of skate bait 

possession limits. When the Regional 

Administrator projects that 90 percent 

of the skate bait fishery seasonal quota 

has been landed in Seasons 1 or 2, or 

90 percent of the annual skate bait 

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 bait trip limit to the 

whole weight equivalent of the skate 

wing trip limit specified under 

paragraph (b) of this section for the 

remainder of the quota period, unless 

such a reduction would be expected to 

prevent attainment of the seasonal quota 

or annual TAL. 

(e) Prohibitions on possession of 

skates. A vessel fishing in the EEZ 

portion of the Skate Management Unit 

may not: 

(1) Retain, possess, or land barndoor 

or thorny skates taken in or from the 

EEZ portion of the Skate Management 

Unit. 

(2) Retain, possess, or land smooth 

skates taken in or from the GOM RMA 

described at § 648.80(a)(1)(i). 

8. Section 648.323 is added to read as 

follows: 

§ 648.323 Accountability measures. 

(a) TAL overages. If the skate wing 

fishery TAL or skate bait fishery TAL is 

determined to have been exceeded by 

more than 5 percent in any given year 

based upon, but not limited to, available 

landings information, the Regional 

Administrator shall reduce the inseason possession limit trigger for that 

fishery, as specified at § 648.322(b) and 

(c), in the next fishing year by 1 percent 

for each 1 percent of TAL overage, 

consistent with the Administrative 

Procedure Act. 

(b) ACL overages. (1) If the ACL is 

determined to have been exceeded in 

any given year, based upon, but not 

limited to, available landings and 

discard information, the percent buffer 

between ACL and ACT, initially 

specified at 25 percent, shall be 

increased by 1 percent for each 1- 

percent ACL overage in the subsequent 

fishing year, through either the 

specifications or framework adjustment 

process described under §§ 648.320 and 

648.321. 

(2) If the Council fails to initiate 

action to correct an ACL overage 

through the specifications or framework 

adjustment process, consistent with 

paragraph (b)(1) of this section, the 

Regional Administrator shall implement 

the required adjustment, as described 

under paragraph (b)(1) of this section, 

consistent with the Administrative 

Procedure Act. 

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BILLING CODE 3510–22–P 

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