[Federal Register Volume 76, Number 168 (Tuesday, August 30, 2011)]
[Proposed Rules]
[Pages 53872-53874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22165]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 110818511-1510-01]
RIN 0648-BB32


Fisheries of the Northeastern United States; Northeast Skate 
Complex Fishery; Secretarial Emergency Action

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

ACTION: Proposed temporary rule; request for comments.

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SUMMARY: NMFS proposes emergency regulations to adjust catch limits in 
the Northeast Skate Complex Fishery. The proposed action was developed 
by NMFS to increase the fishing year (FY) 2011 catch limits for the 
skate fishery, which should extend the fishing season over a longer 
duration than occurred in FY 2010, thus ensuring a more steady market 
supply. The proposed increases in catch limits are supported by new 
scientific information indicating significant increases in skate 
biomass.

DATES: Public comments must be received no later than 5 p.m., eastern 
standard time, on September 14, 2011.

ADDRESSES: A supplemental environmental assessment (EA) was prepared 
that describes the proposed action and other considered alternatives 
and provides a thorough analysis of the impacts of the proposed 
measures and alternatives. Copies of the supplemental EA and the 
Initial Regulatory Flexibility Analysis (IRFA), are available on 
request from Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 
01930. These documents are also available online at http://www.nero.noaa.gov.
    You may submit comments, identified by NOAA-NMFS-2011-0197, by any 
one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal http://www.regulations.gov. To submit comments via the e-Rulemaking Portal, 
first click the ``submit a comment'' icon, then enter ``NOAA-NMFS-2011-
0197'' in the keyword search. Locate the document you wish to comment 
on from the resulting list and click on the ``Submit a Comment'' icon 
on the right of that line.
     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 Emergency 
Action.''
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are a part of the public 
record and will generally be posted for public viewing on http://www.regulations.gov. All personal identifying information (e.g., name, 
address, etc.) submitted voluntarily by the sender will be publicly 
accessible. Do not submit confidential business information, or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments (enter ``N/A'' in the required fields if you wish to 
remain anonymous). Attachments to electronic comments will be accepted 
in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats 
only.

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

SUPPLEMENTARY INFORMATION:

Background

    In the Northeast U.S., skate fisheries are managed by the New 
England Fishery Management Council (Council). In 2003, NMFS implemented 
the Northeast Skate Complex Fishery Management Plan (Skate FMP) to 
manage a complex of seven skate species: 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 (75 FR 34049, June 16, 2010), and set 
fishery specifications for FY 2010-2011 (through April 30, 2012). The 
ACL was set equal to the acceptable biological catch (ABC) 
recommendation of the Council's Scientific and Statistical Committee 
(SSC) (41,080 mt). Amendment 3 also implemented an annual catch target 
(ACT), which is 75 percent of the ACL, and annual total allowable 
landings (TALs) for the skate wing and bait fisheries (TAL = ACT - dead 
discards and state landings), and three seasonal quotas for the bait 
fishery. An incidental possession limit may be implemented when 
landings approach the TAL, preventing excessive quota overages.
    In FY 2010, the combination of increased landings of skate wings 
and a delay in implementation of Amendment 3 possession limits (5,000 
lb (2,270 kg) of wings per trip) resulted in the wing fishery reaching 
the TAL trigger in early September. Consequently, the wing fishery was 
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 incidental 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 reduce 
the skate wing possession limits, and increase the TAL trigger point, 
in order to maximize the duration of the skate fishing season in FY 
2011. Framework 1 was partially approved by NMFS and implemented on May 
17, 2011 (76 FR 28328).
    Since the implementation of Framework 1, new scientific information 
on skate catch and biomass became available, which allowed the SSC to 
revise its recommendation for skate ABC. The ABC is calculated by 
multiplying the median catch/biomass ratio by the most recent 3-yr 
average skate biomass. Therefore, significant increases in the survey 
biomass of little and winter skates through autumn 2010 support 
increases in the ABC. Additionally, new research on the discard 
mortality of winter and little skates in trawl gear indicates that the 
assumed discard mortality rate of 50 percent is too high, and that the 
dead discard portion of the catch has been overestimated in the past. 
Updates to

[[Page 53873]]

estimates on state waters and transfer at sea landings were also 
incorporated. Collectively, this new information resulted in a revised 
ABC recommendation of 50,435 mt.
    This new ABC recommendation is being used by the Council to develop 
skate fishery specifications for FYs 2012-2013. However, due to 
continued high rates of skate wing landings under Framework 1 
possession limits, and the likelihood that the skate wing fishery would 
once again be closed early in FY 2011, the Council, at its June 2011 
meeting, requested that NMFS take emergency action, pursuant to section 
305(c) of the Magnuson-Stevens Act, to implement the revised skate ABC 
for the remainder of FY 2011. This would increase available landings of 
skates, and result in the lengthening of the season for the skate wing 
fishery, thereby helping to avoid the economic impacts associated with 
a potential closure.

Proposed Measures

    Based on the new ABC recommendation from the SSC, this emergency 
action proposes the following changes to the regulations governing the 
skate fishery (see Table 1):
    1. That the skate ABC and ACL be increased from 41,080 mt to 50, 
435 mt for FY 2011;
    2. That the ACT be increased from 30,810 mt to 37,826 mt; and
    3. That the TAL be increased from 13,848 mt to 21,561 mt, 
reflecting the higher ACT as well as a lower assumed skate discard rate 
and improved estimates of state landings.
    The skate wing fishery would be allocated 66.5 percent of the TAL 
(14,338 mt) and the skate bait fishery would be allocated 33.5 percent 
of the TAL (7,223 mt)


               Table 1--No Action and Proposed FY 2011 Skate ABC and Associated Catch Limits (mt)
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                                                                No action         Preferred      Percent change
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ABC.......................................................            41,080            50,435               +23
ACL.......................................................            41,080            50,435               +23
ACT.......................................................            30,810            37,826               +23
TAL.......................................................            13,848            21,561               +56
Wing TAL..................................................             9,209            14,338               +56
Bait TAL..................................................             4,639             7,223               +56
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Assumed Discard Rate......................................             52.0%             36.3%               -30
Assumed State Landings....................................              3.0%              6.7%              +123
----------------------------------------------------------------------------------------------------------------

    This action does not propose changes to any other regulations 
implemented by Amendment 3 or Framework 1. The wing possession limits 
would remain at 2,600 lb (1,179 kg) for May 1 through August 31, and 
4,100 lb (1,860 kg) for September 1 through April 30. The skate bait 
possession limit would remain at 20,000 lb (9,072 kg) whole weight per 
trip for vessels carrying a Skate Bait Letter of Authorization. 
Finally, if the TAL triggers are reached before the end of the year (85 
percent for the wing fishery, 90 percent for the bait fishery), the 
incidental possession limit would remain at 500 lb (227 kg) of wings 
(1,135 lb (515 kg) whole wt.). These management measures may be 
reconsidered as the Council develops fishery specifications for FYs 
2012-2013.
    The proposed quota increases are expected to result in considerable 
increases in skate revenues and positive economic impacts for the 
fishery, while maintaining the conservation objectives of the Skate 
FMP. Although the landings of skate wings are expected to increase 
under the proposed changes, overall catch of skates will not likely be 
significantly affected due to the nature of the skate wing fishery, 
which is primarily an incidental fishery within the primary fisheries 
for groundfish and monkfish. Absent this proposed action, once the 
current, lower possession limit trigger is reached, skates that are 
caught above the incidental possession limit of 500 lb (227 kg) in 
these primary fisheries would be discarded. This proposed action would 
enable fishermen to retain and land for sale those skates that would 
otherwise have to be discarded.

Classification

    NMFS has preliminarily determined that the new assessment of the 
status of the skate complex being relied on for the significantly 
higher ABC recommendation for FY 2012-2013 also justifies the emergency 
in-season adjustment requested by the Council. Pursuant to section 
304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant 
Administrator has made a preliminary determination that this proposed 
rule is consistent with the Skate FMP, other provisions of the 
Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment. NMFS has reviewed the Council's 
request for temporary emergency rulemaking with respect to section 
305(c) of the Magnuson-Stevens Act and NMFS policy guidance for the use 
of emergency rules (62 FR 44421, August 21, 1997) and determined that 
the Council's request meets both the criteria and justifications for 
invoking the emergency rulemaking provisions of the Magnuson-Stevens 
Act. Specifically, the SSC's revision of its previously recommended ABC 
was a recent and unforeseen event that cannot be implemented in a 
timely way through normal Magnuson-Stevens Act and Skate FMP actions. 
Through this emergency rulemaking, NMFS is increasing the FY 2011 skate 
complex ABC, ACL, ACT, and TALs, thereby relieving restrictions imposed 
by the previous, lower catch levels. Doing so will assist in preventing 
significant direct economic loss for fishery participants and 
associated industries that would be subject to lower commercial harvest 
levels.
    The Office of Management and Budget has determined that this 
proposed rule is not significant for the purposes of Executive Order 
12866.
    NMFS prepared an IRFA, as required by section 603 of the Regulatory 
Flexibility Act (RFA). The IRFA describes the economic impact this 
proposed rule, if adopted, would have on small entities. A description 
of 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 NMFS (see 
ADDRESSES).
    All of the entities (fishing vessels) affected by this action are 
considered small entities under the Small Business Administration (SBA) 
size standards for

[[Page 53874]]

small fishing businesses (less than $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 proposed increase in the Skate ACL and TALs would impact 
vessels that hold Federal open access commercial skate permits that 
participate in the skate fishery. For the purposes of this analysis, 
each permitted vessel is treated as a single small entity and is 
determined to be a small entity under the RFA. According to the 
Framework 1 final rule and Final Regulatory Flexibility Analysis (76 FR 
28328, May 17, 2011), as of December 31, 2010, the maximum number of 
small fishing entities (as defined by the SBA) that may be affected by 
this action is 2,607 entities (number of skate permit holders). 
However, during FY 2010, only 503 vessels landed skates for the wing 
market, and only 56 landed skates for the bait market.

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

    The purpose of the proposed action is to increase the skate ABC and 
associated catch limits in order to increase landings, thereby 
extending the duration of the fishing season and helping to prevent the 
negative economic impacts that would be associated with an early 
closure of the directed skate fisheries. Compared to the other 
alternative considered, the proposed action is expected to maximize 
profitability for the skate fishery by allowing higher levels of 
landings for the duration of FY 2011. Therefore, the economic impacts 
resulting from the proposed action as compared to the No Action 
Alternative are positive, since the action would provide additional 
fishing opportunity for vessels participating in the skate fishery for 
FY 2011.
    The proposed action is almost certain to result in greater revenue 
from skate landings. Based on recent landing information, the skate 
fishery is able to land close to the full amount of skates allowable 
under the quotas. The estimated potential revenue from the sale of 
skates under the proposed catch limits is approximately $9.0 million, 
compared to $5.8 million if this action were not implemented. Due to 
the implications of closing the directed skate fisheries early in the 
fishing year, the higher catch limits associated with the proposed 
action will result in additional revenue if fishing is prolonged. 
According to analyses in Framework 1, vessels that participate in the 
skate fishery derive most (an average of 96 percent) of their revenues 
from other fisheries (e.g., groundfish, monkfish). Therefore, relative 
to total fishing revenues, catch limits of other species would be 
expected to have more significant economic impacts than revenues 
derived from skates alone. However, as skate prices have begun 
increasing in recent years, more vessels are deriving a greater 
proportion of their income from skates.

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

    Dated: August 24, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2011-22165 Filed 8-29-11; 8:45 am]
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