[Federal Register Volume 76, Number 64 (Monday, April 4, 2011)]
[Proposed Rules]
[Pages 18505-18509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7949]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 110218142-1146-02]
RIN 0648-BA91


Fisheries of the Northeastern United States; Northeast Skate 
Complex Fishery; Framework Adjustment 1

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

ACTION: Proposed rule; request for comments.

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

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

ADDRESSES: An environmental assessment (EA) was prepared for

[[Page 18506]]

Framework Adjustment 1 that describes the proposed action and other 
considered alternatives and provides a thorough analysis of the impacts 
of the proposed measures and alternatives. Copies of Framework 1, the 
EA, and the Initial Regulatory Flexibility Analysis (IRFA), are 
available on request from Paul J. Howard, Executive Director, New 
England Fishery Management Council (Council), 50 Water Street, 
Newburyport, MA 01950. These documents are also available online at 
http://www.nefmc.org.
    You may submit comments, identified by 0648-BA91, by any one of the 
following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: http://www.regulations.gov.
     Fax: (978) 281-9135, Attn: Michael Pentony.
     Mail: Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 
01930. Mark the outside of the envelope, ``Comments on Skate Framework 
1 Proposed Rule.''
    Instructions: All comments received are part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All personal identifying information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.

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

SUPPLEMENTARY INFORMATION:

Background

    In 2003, NMFS implemented the Skate FMP to manage a complex of 
seven skate species in the Northeast Region: Winter (Leucoraja 
ocellata); little (L. erinacea); thorny (Amblyraja radiata); barndoor 
(Dipturus laevis); smooth (Malacoraja senta); clearnose (Raja 
eglanteria); and rosette (L. garmani) (see 68 FR 49693, August 19, 
2003). The FMP established biological reference points and overfishing 
definitions for each species based on abundance indices in the NMFS 
Northeast Fisheries Science Center bottom trawl survey.
    Amendment 3 to the Skate FMP, which was implemented in July 2010, 
instituted an annual catch limit (ACL) and accountability measures 
(AMs) for the skate fishery (see 75 FR 34049, June 16, 2010). To ensure 
that the ACL is not exceeded, regulations implementing Amendment 3 
established a possession limit of 5,000 lb (2,268 kg) of skate wings 
(11,350 lb (5,148 kg) whole weight) per trip for the skate wing 
fishery, and an AM that further reduces the wing fishery possession 
limit to an incidental level of 500 lb (227 kg) of skate wings (1,135 
lb (515 kg) whole weight) when 80 percent of the TAL for the wing 
fishery is reached. In FY 2010, the combination of increased landings 
of skate wings and a delay in implementation of the 5,000-lb (2,268-kg) 
skate wing possession limit resulted in the fishery reaching the 80-
percent TAL trigger in early September. Consequently, the wing fishery 
has been limited to the incidental possession limit of 500 lb (227 kg) 
of skate wings per trip from September 3, 2010, through the end of FY 
2010 on April 30, 2011.
    Asserting that the imposition of the 500-lb (227-kg) skate wing 
possession limit so early in the FY caused disruptions in the supply of 
skate wings, economic hardship on fishing vessels and dealers, and 
threatened to undermine the market position of U.S. suppliers, members 
of the skate wing fishing industry requested that the Council consider 
options to mitigate the potential for this situation to be repeated in 
FY 2011. In November 2010, the Council initiated Framework 1 to change 
the skate wing possession limits in order to maximize the duration of 
the skate fishing season in FY 2011. In January 2011, the Council 
approved Framework 1 and recommended that NMFS implement new possession 
limits for the skate wing fishery, as described below.

Proposed Measures

    Framework 1 proposes the following changes to the regulations 
governing the skate fishery:
    1. That the skate wing fishery possession limit be changed from 
5,000 lb (2,268 kg) of skate wings per trip to 2,600 lb (1,179 kg) per 
trip from May 1 through August 31, and 4,100 lb (1,860 kg) per trip 
from September 1 through April 30;
    2. That the skate wing fishery incidental possession limit (the 
limit that applies to all landings of skate wings once landings reach 
the appropriate TAL trigger percentage) be changed from 500 lb (227 kg) 
of skate wings per trip to 1,250 lb (567 kg) per trip;
    3. That the skate wing fishery incidental possession limit trigger 
be changed from 80 percent of the skate wing TAL to 85 percent of the 
skate wing TAL; and
    4. That the regulations governing the allowable forms of skates 
that may be possessed and landed be changed to allow the landing of 
skate carcasses separate from skate wings (currently, only whole skates 
or skate wings--without the associated carcasses--may be possessed and 
landed).
    By reducing the skate wing possession limit from 5,000 lb (2,268 
kg) of skate wings per trip to the lower amounts identified above, the 
Council intends to slow the landings of skate wings in order to promote 
an extended directed fishery. The Council's recommendation to impose 
different possession limits at different times of the year reflects 
advice from members of the skate fishing industry regarding the times 
of year when demand for skate wings is generally higher and the price 
is also likely to be higher. Based on data from 2009 and 2010, the 
average price per lb of skate wings was $0.33 for May-August and $0.64 
for September-April. Thus, the proposed 2,600-lb (1,179-kg) limit would 
serve to constrain landings when demand and price are both lower, 
preserving more of the available TAL to be harvested under the higher 
4,100-lb (1,860-kg) limit when demand and price are more favorable.
    The Council's recommendation to change the trigger point at which 
the incidental possession limit is imposed is also an attempt to 
lengthen the duration of the directed skate wing fishery. However, 
based on the analysis prepared by the Council's Skate Plan Development 
Team and presented to the Council at its January 2011 meeting, the 
combination of a 1,250-lb (567-kg) incidental possession limit and an 
85-percent trigger point would be expected to result in landings 
exceeding the skate wing TAL by more than 7 percent. Amendment 3 to the 
Skate FMP established the TAL as the limit for skate landings, taking 
into account the needs of the skate wing and bait fisheries (i.e., 
allocating the overall skate TAL to the skate wing and bait fisheries 
according to specific percentages), discards of skates in all fisheries 
that encounter skates, and the biological status of the resource. The 
management measures implemented in Amendment 3 were designed to 
constrain overall skate landings to the TAL, and, in situations in 
which a TAL is exceeded, the Amendment 3 regulations require automatic

[[Page 18507]]

adjustments to the TAL trigger threshold (on a point-for-point basis). 
If the wing TAL were to be exceeded by 7 percent, as the Council's 
analysis indicates is likely, then the Amendment 3 regulations would 
require the TAL trigger for the following FY to be reduced from 85 
percent of the TAL to 78 percent of the TAL, forcing an even earlier 
transition to the incidental possession limit. It would be inconsistent 
with the intent of Framework 1 (implement measures to extend the length 
of the directed skate wing fishery) and the objectives of Amendment 3 
(implement measures to constrain landings to within the available TAL) 
to alter both the incidental skate wing possession limit and the TAL 
trigger point, as proposed by the Council. The Council's analysis 
suggests that the trigger point could be increased to 85 percent of the 
TAL if the incidental wing limit is maintained at the current 500-lb 
(227-kg) level, while still remaining within the TAL. Therefore, this 
proposed rule announces NMFS's intention to disapprove the proposed 
change to the incidental skate wing possession limit at Sec.  
648.322(b)(2). Disapproving the change in the incidental limit would 
not affect the other measures proposed in this action. NMFS seeks 
comments on the Council's proposed action, as well as keeping the 
incidental possession limit at 500 lb (227 kg) in the event this 
proposed measure is disapproved.
    The Council's recommendation to allow possession and landing of 
skate carcasses is intended to promote a fuller utilization of the 
skate resource, by enabling fishermen to retain the carcasses that 
would otherwise be discarded at sea once the skate wings are cut and 
removed. Currently, vessels must either retain the whole skates and cut 
the wings after landing, or discard the skate carcasses at sea once the 
wings are removed. This proposed change would allow fishermen to retain 
the skate carcasses and sell them as bait, increasing the economic 
yield of the skate resource without any change in fishing mortality. 
Under the proposed revision to the regulations, skates could be 
possessed or landed either as wings only, wings with associated 
carcasses possessed separately, or in whole form, or any combination of 
the three, provided that the weight of skate carcasses does not exceed 
1.27 times the weight of skate wings on board. This ratio, based upon 
established wing-to-whole weight conversion factor for skates, would 
help assure that the only carcasses possessed and landed correspond to 
skates which have had their wings removed and retained by the vessel 
for sale. When any combination of wings, carcasses, and whole skates 
are possessed, the possession limit would be based on the equivalent 
whole weight limit where wing weight is converted to whole weight using 
the wing to whole weight conversion factor of 2.27. For example, 100 lb 
(45.4 kg) of skate wings x 2.27 = 227 lb (103.1 kg) of whole skates. If 
wings and carcasses were possessed separately in this case, the vessel 
could possess 100 lb (45.4 kg) of skate wings and 100 x 1.27 = 127 lb 
(57.6 kg) of carcasses. The sum of the two products must not exceed the 
whole weight possession limit. This action is not intended to allow the 
landing of skate carcasses without skate wings.
    NMFS seeks comments on all of the proposed measures in Framework 1, 
as well as on keeping the incidental skate wing possession limit at 500 
lb (227 kg) if this measure is disapproved.
    As required under section 303(c) of the Magnuson-Stevens Act, the 
Council reviewed the draft regulations and deemed them necessary and 
appropriate for implementation of Framework 1. Technical changes to the 
regulations deemed necessary by the Secretary for clarity may be made, 
as provided under section 304(b) of the Magnuson-Stevens Act.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has made a preliminary determination that 
this proposed rule, subject to NMFS's concern about the proposed 
increase in the incidental skate wing possession limit, is consistent 
with the Skate FMP, Amendment 3, other provisions of the Magnuson-
Stevens Act, and other applicable law, subject to further consideration 
after public comment.
    The Office of Management and Budget has determined that this 
proposed rule is not significant for the purposes of Executive Order 
12866.
    The Council prepared an IRFA, as required by section 603 of the 
Regulatory Flexibility Act (RFA), included in Framework 1 and 
supplemented by information contained in the preamble to this proposed 
rule. The IRFA describes the economic impact this proposed rule, if 
adopted, would have on small entities. A description of the action, why 
it is being considered, and the legal basis for this action are 
contained at the beginning of this section of the preamble and in the 
SUMMARY of this proposed rule. A summary of the IRFA follows. A copy of 
this analysis is available from the Council (see ADDRESSES).
    All of the entities (fishing vessels) affected by this action are 
considered small entities under the Small Business Administration size 
standards for small fishing businesses ($4.0 million in annual gross 
sales). Therefore, there are no disproportionate effects on small 
versus large entities. Information on costs in the fishery is not 
readily available and individual vessel profitability cannot be 
determined directly; therefore, expected changes in gross revenues were 
used as a proxy for profitability.
    This action does not introduce any new reporting, recordkeeping, or 
other compliance requirements. This proposed rule does not duplicate, 
overlap, or conflict with other Federal rules.

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

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

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

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

[[Page 18508]]

    The Council considered several alternatives for the primary skate 
wing possession limit: (1) 5,000 lb (2,268 kg) of wings per trip (the 
status quo); (2) 4,100 lb (1,860 kg) of wings per trip; (3) 3,200 lb 
(1,451 kg) of wings per trip; (4) 2,600 lb (1,179 kg) of wings per 
trip; and (5) the proposed action of a 2,600-lb (1,179-kg) possession 
limit from May 1 through August 31, and a 4,100-lb (1,860-kg) 
possession limit from September 1 through April 30. The challenge in 
achieving the objective of this action is to determine a possession 
limit low enough to prolong the directed fishing season without 
substantially reducing the efficacy of the skate wing fishery by 
choosing a possession limit too low to make profitable fishing trips. 
Compared to the other alternatives considered, the proposed action is 
expected to maximize profitability for the skate wing fishery by 
constraining landings during the spring and summer months (May-August) 
when demand and price are generally lower (average of $0.33/lb during 
2009 and 2010), preserving more of the available TAL for the fall and 
early winter months when demand and price are generally higher (average 
of $0.64/lb during 2009 and 2010) and allowing higher levels of 
landings during this time.
    In addition to changing the primary possession limit, the Council 
also considered three alternatives for the trigger point at which the 
possession limit is reduced: (1) 80 percent of the TAL (the status 
quo); (2) 85 percent of the TAL; and (3) 75 percent of the TAL. The 
higher the trigger percentage, the longer the directed fishing season 
would last before the possession limit is reduced; however, because 
landings continue--at albeit reduced rates due to the lower possession 
limit--the desire to extend the directed fishing season must be 
balanced with the need to prevent the overall landings from exceeding 
the TAL. The Council's analysis shows that a 5-percent change in the 
trigger point could make a 2-week difference in the length of the 
directed fishing season. The likelihood of exceeding the TAL at the 
different potential trigger points depends, in part, on the incidental 
possession limit that would be imposed once the trigger is reached.
    The Council considered three alternatives for the incidental 
possession limit: (1) 500 lb (227 kg) of skate wings per trip (the 
status quo); (2) 750 lb (340 kg) of skate wings per trip; and (3) 1,250 
lb (567 kg) of skate wings per trip. Although the Council recommended 
increasing the incidental possession limit to 1,250 lb (567 kg) per 
trip in order to increase the potential revenue of vessels landing 
skates after the possession limit is reduced, NMFS intends to 
disapprove this particular proposal as inconsistent with the 
requirement to ensure that overall skate landings do not exceed the 
available TAL (the Council's analysis indicates that this combination 
of measures would result in landings exceeding the TAL by more than 7 
percent). The Council's analysis shows that the overarching purpose of 
Framework 1 to lengthen the directed fishing season while not exceeding 
the TAL is best served by increasing the trigger point to 85 percent of 
the TAL but maintaining the status quo incidental possession limit of 
500 lb (227 kg) of skate wings per trip. Although an increase in the 
incidental possession limit from 500 lb (227 kg) of skate wings per 
trip to 1,250 lb (567 kg) of skate wings per trip would increase the 
potential vessel revenue by up to $250-$500 per trip (based on the 
average ex-vessel price paid for skate wings in 2009 and 2010), NMFS's 
disapproval of this measure would impose no additional costs on the 
affected industry, as the disapproval leaves in place the current 500-
lb (227-kg) possession limit.
    In addition to the primary alternatives considered in this action, 
the Council also considered a change in the regulations to allow skate 
carcasses to be landed rather than discarded at sea. This proposed 
measure is expected to have no effect on the overall mortality of 
skates caught, but could result in marginal increases in per trip 
fishing revenue for vessels that cut skate wings at sea and land the 
remaining carcasses for sale as lobster bait (estimates range from 
approximately $360 per trip at the 2,600-lb (1,179-kg) possession limit 
to approximately $570 per trip at the 4,100-lb (1,860-kg) possession 
limit). Because the only significant alternative considered in this 
case is the status quo, under which the landing of skate carcasses 
would continue to be prohibited, the Council's proposed action in this 
case maximizes the potential revenue available to the fishing industry.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: March 29, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

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


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

* * * * *
    (b) Skate wing possession and landing limits. A vessel or operator 
of a vessel that has been issued a valid Federal skate permit under 
this part, 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 of skate wings (with appropriate whole weight 
equivalents) specified as follows:
    (1) Up to 2,600 lb (1,179 kg) of skate wings (5,902 lb (2,677 kg) 
whole weight) per trip from May 1 through August 31, and 4,100 lb 
(1,860 kg) of skate wings (9,307 lb (4,222 kg) whole weight) per trip 
from September 1 through April 30, except for a vessel fishing on a 
declared NE multispecies Category B DAS described under 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 85 percent of the annual skate 
wing fishery TAL has been landed, the Regional Administrator shall, 
through a notice in the Federal Register consistent with the 
Administrative Procedure Act, reduce the skate wing trip limit to 1,250 
lb (567 kg) of skate wings (2,837 lb (1,287 kg) whole weight, or any 
prorated combination of skate wings and whole skates based on the 
conversion factor for wing weight to whole weight of 2.27) for the 
remainder of the fishing year, unless such a reduction would be 
expected to prevent attainment of the annual TAL.
    (3) Incidental possession limit for vessels not under a DAS. A 
vessel issued a Federal skate permit that is not fishing under an 
Atlantic sea scallop, NE multispecies, or monkfish DAS as

[[Page 18509]]

specified at Sec. Sec.  648.53, 648.82, and 648.92, respectively, or is 
a limited access multispecies vessel participating in an approved 
sector described under Sec.  648.87 but not fishing on one of the DAS 
specified at Sec. Sec.  648.53, 648.82, or 648.92, may retain up to 500 
lb (227 kg) of skate wings or 1,135 lb (515 kg) of whole skate, or any 
prorated combination of skate wings and whole skates based on the 
conversion factor for wing weight to whole weight of 2.27, per trip.
    (4) Allowable forms of skate landings. Except for vessels fishing 
under a skate bait letter of authorization as specified at Sec.  
648.322(c), a vessel may possess and/or land skates as wings only 
(wings removed from the body of the skate and the remaining carcass 
discarded), wings with associated carcasses possessed separately (wings 
removed from the body of the skate but the associated carcass retained 
on board the vessel), or in whole (intact) form, or any combination of 
the three, provided that the weight of the skate carcasses on board the 
vessel does not exceed 1.27 times the weight of skate wings on board. 
When any combination of skate wings, carcasses, and whole skates are 
possessed and/or landed, the applicable possession or landing limit 
shall be based on the whole weight limit, in which any wings are 
converted to whole weight using the wing to whole weight conversion 
factor of 2.27. For example, if the vessel possesses 100 lb (45.4 kg) 
of skate wings, the whole weight equivalent would be 227 lb (103.0 kg) 
of whole skates (100 lb (45.4 kg) x 2.27), and the vessel could possess 
up to 127 lb (57.6 kg) of skate carcasses (100 lb (45.4 kg) of skate 
wings x 1.27). A vessel may not possess and/or land skate carcasses and 
only whole skates.
* * * * *
[FR Doc. 2011-7949 Filed 4-1-11; 8:45 am]
BILLING CODE 3510-22-P