[Federal Register Volume 75, Number 13 (Thursday, January 21, 2010)]
[Proposed Rules]
[Pages 3434-3441]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1084]


-----------------------------------------------------------------------

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

[[Page 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
----------------------------------------------------------------------------------------------------------------
                                                              Stratified mean biomass (kg/tow)
                                           ---------------------------------------------------------------------
               Skate species                   Current                    Proposed                    Proposed
                                               biomass      Threshold     threshold      Target        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

[[Page 3436]]

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 Sec.  648.87; or 
(2) that the vessel is otherwise exempted under Sec.  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,

[[Page 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 long-term 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 Non-
Selected 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 short-term 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.

----------------------------------------------------------------------------------------------------------------
                                       Skate wing possession limit              Skate bait possession limit
       Alternative number       --------------------------------------------------------------------------------
                                       Option 1            Option 2            Option 1            Option 2
----------------------------------------------------------------------------------------------------------------
1A.............................  4,800 wing lb......  3,800 wing lb.....  6,800 lb..........  12,100 lb.
(Hard TAC, and time/area         (2,177 kg).........  (1,724 kg)........  (3,084 kg)........  (5,488 kg).
 management).                    10,896 whole lb....  8,626 whole lb....
                                 (4,942 kg).........  (3,913 kg)........
1B.............................  4,800 wing lb......  3,800 wing lb.....  6,800 lb..........  12,100 lb.
(Target TAC and time/area        (2,177 kg).........  (1,724 kg)........  (3,084 kg)........  (5,488 kg).
 management).                    10,896 whole lb....  8,626 whole lb....
                                 (4,942 kg).........  (3,913 kg)........
2..............................  2,500 wing lb......  1,900 wing lb.....  8,200 lb..........  14,200 lb.
(Target TAC with time/area       (1,134 kg).........  (862 kg)..........  (3,719 kg)........  (6,396 kg).
 management as accountability    5,675 whole lb.....  4,313 whole lb....
 measure only).                  (2,574 kg).........  (1,956 kg)........

[[Page 3438]]

 
3A.............................  2,500 wing lb......  1,900 wing lb.....  8,200 lb..........  14,200 lb.
(Hard TAC).....................  (1,134 kg).........  (862 kg)..........  (3,719 kg)........  (6,396 kg).
                                 5,675 whole lb.....  4,313 whole lb....
                                 (2,574 kg).........  (1,956 kg)........
3B.............................  2,500 wing lb......  1,900 wing lb.....  8,200 lb..........  14,200 lb.
(Target TAC)...................  (1,134 kg).........  (862 kg)..........  (3,719 kg)........  (6,396 kg).
                                 5,675 whole lb.....  4,313 whole lb....
                                 (2,574 kg).........  (1,956 kg)........
                                                                         ---------------------------------------
4..............................  4,800 wing lb......  3,800 wing lb.....      Quota managed by season with no
(Target TAC)...................  (2,177 kg).........  (1,724 kg)........             possession limit.
                                 10,896 whole lb....  8,626 whole lb....
                                 (4,942 kg).........  (3,913 kg)........
----------------------------------------------------------------------------------------------------------------

    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 non-preferred 
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 Sec.  648.13, paragraph (h)(2) is revised to read as follows:


Sec.  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 Sec.  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 
Sec.  648.322(c); and
    (ii) The transferring vessel and vessel owner or operator comply 
with the requirements specified at Sec.  648.322(c).
* * * * *
    3. In Sec.  648.14, paragraphs (v)(1)(ii), (v)(3)(i) and 
(v)(3)(ii)(A) are revised to read as follows:


Sec.  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 Sec.  648.322(c).
* * * * *
    (3) * * *
    (i) Skate wings. Fail to comply with the conditions of the skate 
wing possession and landing limits specified at Sec.  648.322(b), 
unless holding a valid letter of authorization to fish for and land 
skates as bait only at Sec.  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 Sec. Sec.  
648.13(h) and 648.322(c).
* * * * *
    4. In Sec.  648.80, paragraphs (b)(5)(i)(C)(1) and (2) and 
(b)(6)(i)(D)(1) and (2) are revised to read as follows:


Sec.  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 (Sec.  
648.92) and complies with the skate possession limit restrictions at 
Sec.  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 Sec.  648.322(c); or
* * * * *
    (6) * * *
    (i) * * *
    (D) * * *
    (1) The vessel is called into the monkfish DAS program (Sec.  
648.92) and complies with the skate possession limit restrictions at 
Sec.  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 Sec.  648.322(c); or
* * * * *
    5. Revise Sec.  648.320 to read as follows:


Sec.  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

[[Page 3439]]

species in the skate complex. At a minimum, this review shall include 
annual updates to survey indices, fishery landings and discards; a re-
evaluation 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 Sec.  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 Sec.  
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 Sec.  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 Sec.  648.321 to read as follows:


Sec.  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

[[Page 3440]]

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 non-directed 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 Sec.  
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 Sec.  648.322 to read as follows:


Sec.  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 Sec.  
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 Sec.  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 Sec. Sec.  648.53, 
648.82, and 648.92, respectively, or is also a limited access 
multispecies vessel participating in an approved sector described under 
Sec.  648.87, 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 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 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).
    (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

[[Page 3441]]

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 
Sec. Sec.  648.53, 648.82, and 648.92, respectively, and is not a 
limited access multispecies vessel participating in an approved sector 
described under Sec.  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 Sec.  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 Sec.  648.80(a)(1)(i).
    8. Section 648.323 is added to read as follows:


Sec.  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 in-season 
possession limit trigger for that fishery, as specified at Sec.  
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 Sec. Sec.  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.

[FR Doc. 2010-1084 Filed 1-20-10; 8:45 am]
BILLING CODE 3510-22-P