[Federal Register Volume 76, Number 209 (Friday, October 28, 2011)]
[Rules and Regulations]
[Pages 66856-66859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27989]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 110818511-1641-03]
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: Temporary rule; emergency action.

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SUMMARY: This final rule increases catch limits in the Northeast skate 
fishery for the remainder of the 2011 fishing year. The increases are 
supported by the latest scientific information that shows significant 
increases in the abundance of skates, and are intended to provide a 
significant economic opportunity while still protecting skates from 
overfishing.

DATES: Effective November 28, 2011, through April 30, 2012.

ADDRESSES: A supplemental environmental assessment (EA) was prepared 
for this action. The supplemental EA describes the action and provides 
a thorough analysis of the impacts of the proposed measures and other 
alternatives that were considered. 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.

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

SUPPLEMENTARY INFORMATION: 

Background

    The New England Fishery Management Council (Council) manages skate 
fisheries in the northeastern U.S. through the Northeast Skate Complex 
Fishery Management Plan (Skate FMP). Seven skate species are managed 
under the Skate FMP: Winter, little, thorny, barndoor, smooth, 
clearnose, and rosette. The Council's Scientific and Statistical 
Committee reviews the best available information on the status of skate 
populations, and makes recommendations on acceptable biological catch 
(ABC) for the skate complex (all seven species). This

[[Page 66857]]

recommendation is then used as the basis for catch limits and other 
management measures for the skate fisheries.
    In June 2011, after 2011 measures had been set for the skate 
fishery in Amendment 3 to the Skate FMP, the Scientific and Statistical 
Committee gave the Council a new recommended ABC for the skate complex 
totaling 50,435 mt. This new ABC justifies raising skate catch limits 
for the rest of the 2011 fishing season to allow the fishery to harvest 
more skates and have a longer fishing season, which should increase the 
likelihood of achieving optimum yield in this fishery. This increase 
will help avoid the economic impacts associated with possibly closing 
the skate fisheries, and preserve a significant economic opportunity 
that otherwise might be foregone. In light of this new ABC, the Council 
requested that NMFS implement the revised catch limits through an 
emergency action for the remainder of the 2011 fishing year. The 
Council will be using the new ABC as the basis for setting quotas and 
other measures for the 2012 and 2013 fishing years.
    NMFS has determined that there is adequate justification to 
implement the increase in skate catch limits through an emergency 
action as provided for in section 305(c) of the Magnuson-Stevens Act 
(16 U.S.C. 1855(c)) as more fully described below in the Classification 
section. The preamble to the proposed rule describes the recent history 
of the Skate FMP, including the implementation of Amendment 3 (which 
implemented annual catch limits and accountability measures for the 
2010 and 2011 fishing years) and Framework 1 (which adjusted possession 
limits in the skate wing fishery to lengthen the fishing season), and 
the method in which catch limits are calculated based on the ABC 
recommendation (76 FR 53872, August 30, 2011).

Approved Measures

    Based on the new ABC recommendation, this emergency action 
implements the following changes to the skate fishery for the rest of 
the 2011 fishing year:
    1. The skate ABC and annual catch limit are increased from 41,080 
mt to 50,435 mt;
    2. The annual catch target is increased from 30,810 mt to 37,826 
mt; and
    3. The total allowable landings (i.e., quota) is increased from 
13,848 mt to 21,561 mt. The skate wing fishery is allocated 66.5 
percent of the quota (14,338 mt) and the skate bait fishery is 
allocated 33.5 percent of the quota (7,223 mt).
    Skate possession limits are unchanged by this action. Until further 
notice, the skate wing possession limit for vessels using a day-at-sea 
will remain at 4,100 lb (1,860 kg) per trip (wing weight), and the 
skate bait possession limit will remain at 20,000 lb (9,072 kg) whole 
weight per trip for vessels carrying a Skate Bait Letter of 
Authorization.

Comments and Responses

    On August 30, 2011 (76 FR 53872), NMFS published a proposed rule 
soliciting public comment on the proposed increase in skate catch 
limits. NMFS received three comments on the proposed rule, all from 
non-governmental organizations opposing the proposed measures. This 
section summarizes the principal comments contained in the comment 
letters, and NMFS's response to those comments.
    Comment 1: All three commenters expressed concerns that the 
proposed increase in skate catch limits would adversely impact the 
overfished population of thorny skates in U.S. waters. Specifically, 
they said the quota increases would result in increased bycatch and 
discards of thorny skates, and more precautionary management is needed 
to help rebuild this vulnerable stock.
    Response: NMFS acknowledges the overfished condition and 
vulnerability of the thorny skate population. Possession and landing of 
thorny skates has been prohibited by the Skate FMP since 2003, and it 
is listed as a Species of Concern in the NMFS Proactive Conservation 
Program. However, the projected increase in thorny skate bycatch 
mortality asserted by these commenters is not likely to occur. Vessels 
that participate in the skate wing fishery mostly target other more 
valuable species such as groundfish or monkfish, and retain the skates 
they catch incidentally. Therefore, overall fishing effort is not 
directly influenced by the skate quotas, but rather the effort controls 
or quotas in these other fisheries. Effort in the Northeast 
multispecies (groundfish) fishery, the primary source of skate 
discards, has been significantly reduced in recent years, resulting in 
reduced skate discard rates. Increasing skate quotas effectively allows 
these vessels to land the skates that would otherwise have to be 
discarded. Furthermore, recent analyses by the Council's Skate Plan 
Development Team indicate that there is not a considerable amount of 
overlap between the trawl and gillnet fishing effort (that accounts for 
most of the skate landings) and the distribution of thorny skates. Most 
fishing occurs in areas where thorny skates are not found.
    Comment 2: One commenter argued that this action should be 
withdrawn because it does not constitute an ``emergency,'' and it does 
not meet NMFS's policy guidelines for use of emergency rulemaking. The 
commenter also suggested that this emergency action does not meet the 
legal requirements for public notice and comment.
    Response: 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), as more fully described below in the 
Classification section and in the proposed rule for this action, and 
determined that the Council's request meets both the criteria and 
justifications for invoking the emergency rulemaking provisions of the 
Magnuson-Stevens Act. Contrary to the commenter's arguments, emergency 
actions under section 305(c) of the Magnuson-Stevens Act, as discussed 
in NMFS policy for such actions, can be used to address economic 
concerns not necessarily related to conservation concerns (e.g., 
overfishing), and Magnuson-Stevens Act emergency actions have been used 
in the past for economic purposes. Moreover, in this case, prior notice 
and comment were provided to better inform the public and the agency 
before the agency made a final decision to take this action.
    Comment 3: One commenter requested that this action be withdrawn 
until NMFS issues its 90-day finding determination on two recently-
submitted petitions to list thorny, barndoor, smooth, and winter skates 
as threatened or endangered under the Endangered Species Act (ESA).
    Response: NMFS is currently reviewing a petition from the Animal 
Welfare Institute to list thorny skate, and a joint petition from 
WildEarth Guardians and the Friends of Animals to list thorny, 
barndoor, smooth, and winter skates as threatened or endangered under 
the ESA. These petitions are being considered independently of this 
emergency action. A 90-day finding is forthcoming on whether these 
petitions present substantial information indicating that listing of 
these species may be warranted. Delaying the final decision on this 
action to accommodate the ESA petition 90-day finding could undermine 
the purpose of the action because of the need to get this in place as 
soon as possible. Since this temporary rule is only effective for 180

[[Page 66858]]

days, future Council actions for the skate fishery may address 
additional conservation measures, if necessary.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this rule is 
consistent with the Skate FMP, other provisions of the Magnuson-Stevens 
Act, and other applicable law. NMFS has determined that the new 
assessment of the status of the skate complex, and the significantly 
higher ABC recommendation, justifies the emergency in-season adjustment 
requested by the Council. NMFS 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 revision of its previously recommended ABC was a 
recent and unforeseen event. Without this action there would be a 
serious management problem in the fishery, because it would result in 
unnecessary closures and economic impacts that are not supported by the 
best available science. This emergency rulemaking is justified because 
increasing the FY 2011 skate complex ABC, ACL, ACT, and TALs, relieves 
restrictions imposed by the previous, lower catch levels. This will 
assist in preventing significant direct economic loss for fishery 
participants and associated industries that otherwise would be subject 
to lower commercial harvest levels, and will preserve a significant 
economic opportunity that would otherwise be foregone.
    The Office of Management and Budget has determined that this rule 
is not significant for the purposes of Executive Order 12866.
    Pursuant to section 604 of the Regulatory Flexibility Act (RFA), 
NMFS has prepared a Final Regulatory Flexibility Analysis (FRFA) in 
support of this action. The FRFA incorporates the IRFA, a summary of 
the significant issues raised by the public comments in response to the 
IRFA, NMFS's responses to those comments, relevant analyses contained 
in the action and its supplemental EA and a summary of the analyses 
completed to support the action in this rule. A copy of the analyses 
done in the action and supplemental EA is available from NMFS (see 
ADDRESSES). A summary of the IRFA was published in the proposed rule 
for this action and is not repeated here. A description of why this 
action was considered, the objectives of, and the legal basis for this 
rule is contained in the preamble to the proposed rule and this final 
rule and is not repeated here.

A Summary of the Significant Issues Raised by the Public in Response to 
the IRFA, a Summary of the Agency's Assessment of Such Issues, and a 
Statement of Any Changes Made in the Proposed Rule as a Result of Such 
Comments

    Three comments were received on the proposed rule. For a summary of 
the comments, and NMFS's responses to them, see the Comments and 
Responses section above. None of the comments raised issues or concerns 
related to the IRFA, and no changes were made to the rule as a result 
of the comments.

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

    The increase in the skate catch limits 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 guidelines established by the Small Business 
Administration. All of these entities are considered small businesses 
by the Small Business Administration because they have annual receipts 
not totaling more than $4 million. Therefore, there are no differential 
impacts between large and small entities from this action. According to 
the Framework 1 final rule and FRFA (76 FR 28328, May 17, 2011), as of 
December 31, 2010, there is a maximum of 2,607 small fishing entities 
that may be affected by this action (the number of skate permit 
holders). However, during the 2010 fishing year, only 503 vessels 
landed skates for the wing market, and only 56 landed skates for the 
bait market.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This action does not introduce any new reporting, recordkeeping, or 
other compliance requirements. This rule does not duplicate, overlap, 
or conflict with other Federal rules.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes

    The purpose of this 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. NMFS considered one 
alternative (No Action Alternative) to the preferred alternative 
implemented by this rule. Under the No Action Alternative, the skate 
catch limit would remain at 41,080 mt. This alternative was rejected 
because it does not represent the best available scientific 
information, and would likely result in negative economic impacts as 
compared to the preferred alternative. Compared to the other 
alternative considered, this action is expected to better maximize 
profitability for the skate fishery by allowing higher levels of 
landings for the duration of the 2011 fishing year while still being 
consistent with requirements of the Magnuson-Stevens Act and other 
applicable law. Therefore, the economic impacts resulting from this 
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 the 2011 fishing year.
    The 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 revised 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 this 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.

[[Page 66859]]

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a letter to permit holders that also serves as 
small entity compliance guide (the guide) was prepared. Copies of this 
final rule are available from the Northeast Regional Office, and the 
guide, i.e., permit holder letter, will be sent to all holders of 
permits for the skate fishery. The guide and this final rule will be 
available upon request, and posted on the Northeast Regional Office's 
Web site at http://www.nero.noaa.gov.

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

    Dated: October 25, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 2011-27989 Filed 10-25-11; 4:15 pm]
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