[Federal Register Volume 77, Number 126 (Friday, June 29, 2012)]
[Rules and Regulations]
[Pages 38738-38741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-16013]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 110901554-2178-02]
RIN 0648-BB35


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Exempted Fishery for the Southern New England 
Skate Bait Trawl Fishery

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

ACTION: Final rule.

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SUMMARY: This final rule modifies the regulations implementing the 
Northeast (NE) Multispecies Fishery Management Plan (FMP) to allow 
vessels issued a Federal skate permit and a Skate Bait Letter of 
Authorization to fish for skates in a portion of southern New England 
(SNE) from July 1 through October 31 of each year, outside of the NE 
multispecies days-at-sea (DAS) program. This action allows vessels to 
harvest skates in a manner that is consistent with the bycatch 
reduction objectives of the NE Multispecies FMP.

DATES: Effective July 1, 2012.

ADDRESSES: An environmental assessment (EA) was prepared for the 
Secretarial Amendment that describes this action and other considered 
alternatives, and provides an analysis of the impacts of the approved 
measures and alternatives. Copies of the Secretarial Amendment, 
including the EA and the Initial Regulatory Flexibility Analysis 
(IRFA), are available on request from Daniel Morris, Acting Regional 
Administrator, 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: Travis Ford, Fishery Management 
Specialist, 978-281-9233; fax 978-281-9135; email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    Current regulations, implemented under Framework Adjustment 9 (60 
FR 19364, April 18, 1995) and expanded under Amendment 7 to the FMP (61 
FR 27710, May 31, 1996), contain a NE multispecies fishing mortality 
and bycatch reduction measure that is applied to the Gulf of Maine 
(GOM), Georges Bank (GB), and SNE Exemption Areas found in 50 CFR Sec.  
648.80. A vessel may not fish in these areas unless it is fishing under 
a NE multispecies or a scallop DAS allocation, is fishing with exempted 
gear, is fishing under the Small Vessel Handgear (A or B) or Party/
Charter permit restrictions, or is fishing in an exempted fishery. The 
procedure for adding, modifying, or deleting fisheries from the list of 
exempted fisheries is found in 50 CFR Sec.  648.80. A fishery may be 
exempted by the Regional Administrator (RA), after consultation with 
the New England Fishery Management Council (Council), if the RA 
determines, based on available data or information, that the bycatch of 
regulated species is, or can be reduced to, less than 5 percent by 
weight of the total catch and that such exemption will not jeopardize 
the fishing mortality objectives of the FMP.
    Representatives from the NE multispecies sector fleet submitted an 
exempted fishery request to the RA on April 1, 2011. The petitioners 
requested that NMFS consider an exempted fishery for trawl vessels 
using 6.5-inch (16.5-cm) mesh nets and targeting skate bait in a 
portion of SNE from June through November of each year (referred to in 
the EA and in this rule as Alternative 2). Northeast Fisheries Observer 
Program (NEFOP) and at-sea monitoring (ASM) data were compiled and 
analyzed with reference to groundfish vessels targeting skate in the 
area and months requested for the exemption. A second alternative was 
assessed that reduced both the size of the exempted area and the 
requested season from June through November to July through October 
(referred to in the EA and in this rule as Alternative 1). The data 
best supported Alternative 1, revealing that bycatch of regulated 
species (primarily winter flounder and windowpane flounder) was 
substantially reduced from the original proposal by reducing the area 
and contracting the time period.
    On April 27, 2012, a proposed rule was published in the Federal 
Register (77 FR 25117) soliciting public comment. The proposed rule and 
EA discuss these analyses in greater detail. No comments were received 
during the comment period. In addition, the Council was consulted on 
June 19, 2012, regarding this final rule. The Council raised no 
objections. Since no comments were received from the public or the 
Council, there are no modifications from the proposed measures in this 
final rule.

Approved Measures

Southern New England Skate Bait Trawl Exemption Area

    The RA has determined that an exempted skate bait trawl fishery in 
a specifically defined portion of SNE meets the exemption requirements 
in Sec.  648.80(a)(8)(i). Analysis of available data indicate that 
bycatch of regulated species by vessels targeting skate bait in that 
portion of SNE is less than 5 percent, by weight, of the total catch. 
Also, the RA has determined that the exemption will not jeopardize the 
fishing mortality objectives of the FMP because this exemption does not 
increase the demand for skate bait and is not expected to increase 
fishing for skate bait. Due to this exemption, common pool vessels will 
have more DAS available to target multispecies; however, DAS are not 
considered a limiting factor in the common pool. Further, Annual Catch 
Limits (ACLs) for each stock will prevent the overharvest of any 
species. Based on these determinations, the RA is exempting eligible 
vessels from the prohibition against fishing while not on a DAS in a 
portion of SNE from July through

[[Page 38739]]

October of each year when the vessels target skates and use 6.5-inch 
(16.5-cm) mesh trawl gear. The area of this exempted fishery will be 
referred to as the SNE Skate Bait Trawl Exemption Area.
    The SNE Skate Bait Trawl Exemption Area is defined by straight 
lines connecting the following points in the order stated (copies of a 
chart depicting the area are available from the RA upon request):

------------------------------------------------------------------------
              Point                       N. lat.            W. long.
------------------------------------------------------------------------
SBT 1............................  Southeastern MA.....  71[deg] 00'
SBT 2............................  41[deg] 00'.........  71[deg] 00'
SBT 3............................  41[deg] 00'.........  72[deg] 05'
SBT 4............................  Southern CT.........  72[deg] 05'
------------------------------------------------------------------------

    As required by existing regulations, vessels participating in the 
exempted skate fishery will need to hold a Federal skate permit and a 
valid Skate Bait Letter of Authorization (LOA) from the RA containing 
an exemption from the skate wing possession limits, which will allow 
them to land whole skates for use as bait. A participating vessel may 
possess and land up to 25,000 lb (9,072 kg) of whole skates of less 
than 23 inches (59 cm) total length. In addition, vessels will be 
limited by the skate bait Total Allowable Landings (TAL) that is 
divided into three seasons to help maintain a supply of bait throughout 
the fishing year. When 90 percent of the seasonal quota is landed in 
either Season 1 or 2, or when 90 percent of the annual skate bait TAL 
is landed, the RA will close the directed fishery by reducing the skate 
bait possession limit to the whole weight equivalent of the skate wing 
possession limit in effect at that time (either 5,902 lb (2,677 kg); 
9,307 lb (4,222 kg); or 1,135 lb (515 kg)).
    For additional details regarding the SNE Skate Bait Trawl Exemption 
Area, please see the proposed rule for this action.

Comments and Responses

    No comments were received.

Changes From the Proposed Rule

    There are no changes from the proposed measures in this final rule.

Classification

    NMFS has determined that this final rule is consistent with the FMP 
and the Magnuson-Stevens Fishery Conservation and Management Act and 
other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

Administrative Procedure Act

    The Assistant Administrator, NMFS, finds that a waiver of the 30-
day delay in the rule's effectiveness is justified under 5 U.S.C. 
553(d)(1) because this rule ``recognizes an exemption or relieves a 
restriction[.]'' Currently, vessels fishing for skates in the SNE must 
use a groundfish DAS. This rule creates an exemption to the DAS 
requirement and allows vessels fishing in a portion of the SNE with 6.5 
inch (16.5-cm) net mesh during part of the year to fish without using a 
DAS. As a result, more DAS will be available to vessels to fish 
specifically for groundfish rather than have them used on skate trips 
that catch very small amounts of groundfish. Because this rule 
recognizes an exemption and relieves a restriction by eliminating the 
requirement that vessels use NE Multispecies DAS while targeting skate 
bait in SNE, the 30-day delay in effectiveness may be waived pursuant 
to 5 U.S.C. 553(d)(1).
    The Assistant Administrator also finds that there is good cause 
under 5 U.S.C. 553(d)(3) to waive the 30-day delay because such a delay 
would be contrary to the public interest by potentially preventing 
sector members from realizing the full potential savings in discards 
and DAS. The exemption would ordinarily be in effect from July 1 to 
October 31, but the 30-day delay in effectiveness would reduce the 
duration of the exemption in 2012 by nearly 25 percent. Currently, 
sector members in the SNE area have an elevated groundfish discard rate 
applied to skate trips fished under groundfish DAS. The elevated 
discard rate applied to skate trips and use of DAS on skate trips costs 
sector members approximately $24,000 each year. Delaying the effective 
date of this rule could prevent the sector members from obtaining the 
full amount of cost savings. Further, waiving the 30-day delay in 
effectiveness will not cause any hardship for regulated entities 
because this rule does not create any new obligations or otherwise 
require trawl operators to make modifications to equipment or 
processes. Therefore, the primary rationale for the 30-day delay--to 
provide regulated entities with time to prepare for new rules--does not 
apply to this rule.

Regulatory Flexibility Act

    Pursuant to 5 U.S.C. 603, a Final Regulatory Flexibility Analysis 
(FRFA) has been prepared, which describes the economic impacts that 
this rule will have on small entities. The FRFA incorporates the 
economic impacts and analysis summarized in the Initial Regulatory 
Flexibility Analysis (IRFA) for the proposed rule for this action, and 
the corresponding economic analyses prepared for this action in the EA 
and the Regulatory Impact Review (RIR). The contents of these documents 
are not repeated in detail here. Copies of the IRFA, the RIR, and the 
EA are available upon request (see ADDRESSES). A description of the 
reasons for this action, the objectives of the action, and the legal 
basis for this final rule are found in the preamble to the proposed and 
final rules.
    There are no Federal rules that duplicate, overlap, or conflict 
with this rule. This action does not include any new reporting, 
recordkeeping, or other compliance requirements. This rule creates a 
new skate bait trawl exemption area for trawl vessels targeting skate 
bait in SNE. This action was compared to two different alternatives for 
the exemption. Alternatives to the selected exemption include exempting 
a larger portion of SNE for a longer period of time, from June through 
November, and the No Action alternative, which would continue to 
require vessels targeting skate bait in this area to be on a declared 
NE multispecies trip from July through October.

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

    The Small Business Administration (SBA) defines a small commercial 
fishing entity as a firm with gross receipts not exceeding $4 million. 
In Rhode Island, there are two major dealers involved in the skate bait 
market. One reports supplying skate bait to 100 lobster businesses 
located in Point Judith, Wickford, Newport, Westerly, and Jamestown, 
RI, along with businesses scattered throughout Connecticut and 
Massachusetts. The company buys skate bait from 12-15 vessels 
throughout the year. The lobster businesses supplied by the company 
employ between two and four crewmembers per vessel. The other major 
skate dealer in Rhode Island supplies local Newport, Sakonnet, and New 
Bedford, MA, vessels and numerous offshore lobster vessels fishing in 
the Gulf of Maine. Skates are supplied to this dealer from draggers 
working out of Newport and Tiverton, RI, and New Bedford, MA.
    Due to direct, independent contracts between draggers and lobster 
vessels, landings of skates are estimated to be under-documented. While 
skate bait is always landed (rather than transferred at sea), it is not 
always reported because it can be sold directly to lobster vessels by 
non-federally permitted vessels, which

[[Page 38740]]

are not required to report as dealers. A more complete description of 
the skate bait fishery can be found in Amendment 3 to the NE Skate 
Complex FMP, available from the Council (http://www.nefmc.org).

Economic Impacts of This Action

    This action is expected to benefit the local fishing communities 
that have historically depended on the skate bait fishery in SNE. This 
exemption was requested by members of the NE multispecies fishing 
industry, specifically members of a sector that fishes in the SNE area. 
The cost of fishing for skate bait has become increasingly high 
primarily due to the deduction of calculated discards from each 
vessel's sector's Annual Catch Entitlement (ACE) when fishing under a 
groundfish DAS. This exemption will allow vessels to target skate bait 
outside of the DAS program, which will prevent the discards being 
deducted from their sector's ACE at a higher rate than is actually 
occurring. The EA for this action estimates that the exemption could 
save the fleet approximately $24,489.79 a year in discards and DAS 
alone.
    With the elimination of these low discard trips from the sector's 
discard stratum, the overall discard rate for the sector will likely 
increase because skate bait trips that were observed were keeping the 
discard rate for trips targeting groundfish artificially low. While 
this change will result in an increase of the discard rate for the 
skate bait vessel's original discard stratum, the increase will not 
represent a significant cost to the SNE sector vessels that are not 
participating in the exemption and is outweighed by the benefit of the 
exemption. In addition, the calculated discard rates for both 
groundfish vessels and skate bait vessels will be more accurate as a 
result of the exemption; more accurate discards are not expected to 
have an economic effect on the fishing community as a whole. Further, 
participation in this exemption is voluntary. A vessel may still choose 
to target skate bait during the exemption while on a DAS should they 
feel it is to their benefit.

Economic Impacts of Alternatives to the Action

    The impacts of Alternative 2, which extends the exemption an 
additional 2 months over a larger area, would be expected to be similar 
to the impacts of Alternative 1, but the expanded area and time would 
allow more vessels a greater opportunity to participate in the exempted 
fishery. The EA for this action estimates that Alternative 2 would save 
the industry an additional $ 3,739.37 compared to Alternative 1, for a 
total savings of $28,229.16. However, the months of June and November 
showed an increased number of trips that caught over 5 percent 
groundfish, and a large portion of the area could not be evaluated 
because there were no observer or ASM data available. Providing an 
exemption for trips that caught over 5 percent groundfish, or for areas 
for which no data are available, would be contrary to the current 
regulations. Therefore, this alternative was not selected.
    The No Action Alternative would have a negative economic impact on 
SNE skate bait vessels relative to Alternative 1. This exemption was 
requested because of the economic burden that the cost of DAS and 
calculated discards had on sector fishermen targeting skate bait. As 
described above, it is estimated that this exemption could save the 
fleet approximately $24,489.79 a year in discards and DAS alone 
compared to the No Action alternative. Under the No Action Alternative, 
sector fishermen targeting skate bait would continue fishing on DAS 
only to be charged a higher than observed groundfish discard rate for 
their trip targeting skate bait. The skate bait fishery is a valuable 
resource to those fishing in SNE. The groundfish discards that are 
attributed to these trips come directly out of the vessel's sector's 
ACE, which takes away the opportunity to catch these fish in the 
future.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule 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. As part of this rulemaking process, NMFS prepared a small 
entity compliance guide, which will be sent to all holders of permits 
issued for the NE skate fishery. In addition, copies of this final rule 
and guide (i.e., permit holder letter) are available from the Regional 
Administrator (see ADDRESSES).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: June 26, 2012.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons stated in the preamble, 50 CFR part 648 is amended 
as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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


0
2. In Sec.  648.14, paragraph (k)(5)(i) is revised to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (k) * * *
    (5) * * *
    (i) Violate any of the provisions of Sec.  648.80, including 
paragraphs (a)(5), the Small-mesh Northern Shrimp Fishery Exemption 
Area; (a)(6), the Cultivator Shoal Whiting Fishery Exemption Area; 
(a)(9), Small-mesh Area 1/Small-mesh Area 2; (a)(10), the Nantucket 
Shoals Dogfish Fishery Exemption Area; (a)(11), the GOM Scallop Dredge 
Exemption Area; (a)(12), the Nantucket Shoals Mussel and Sea Urchin 
Dredge Exemption Area; (a)(13), the GOM/GB Monkfish Gillnet Exemption 
Area; (a)(14), the GOM/GB Dogfish Gillnet Exemption Area; (a)(15), the 
Raised Footrope Trawl Exempted Whiting Fishery; (a)(16), the GOM Grate 
Raised Footrope Trawl Exempted Whiting Fishery; (a)(18), the Great 
South Channel Scallop Dredge Exemption Area; (b)(3), exemptions (small 
mesh); (b)(5), the SNE Monkfish and Skate Trawl Exemption Area; (b)(6), 
the SNE Monkfish and Skate Gillnet Exemption Area; (b)(8), the SNE 
Mussel and Sea Urchin Dredge Exemption Area; (b)(9), the SNE Little 
Tunny Gillnet Exemption Area; (b)(11), the SNE Scallop Dredge Exemption 
Area; or (b)(12), the SNE Skate Bait Trawl Exemption Area. Each 
violation of any provision in Sec.  648.80 constitutes a separate 
violation.
* * * * *

0
3. In Sec.  648.80, paragraph (b)(2)(vi) is revised, and paragraph 
(b)(12) is added to read as follows:


Sec.  648.80  NE Multispecies regulated mesh areas and restrictions on 
gear and methods of fishing.

* * * * *
    (b) * * *
    (2) * * *
    (vi) Other restrictions and exemptions. A vessel is prohibited from 
fishing in the SNE Exemption Area, as

[[Page 38741]]

defined in paragraph (b)(10) of this section, except if fishing with 
exempted gear (as defined under this part) or under the exemptions 
specified in paragraphs (b)(3), (b)(5) through (9), (b)(11), (b)(12), 
(c), (e), (h), and (i) of this section; or if fishing under a NE 
multispecies DAS; or if fishing on a sector trip; or if fishing under 
the Small Vessel or Handgear A permit specified in Sec.  648.82(b)(5) 
and (6), respectively; or if fishing under a Handgear B permit 
specified in Sec.  648.88(a); or if fishing under a scallop state 
waters exemption specified in Sec.  648.54; or if fishing under a 
scallop DAS in accordance with paragraph (h) of this section; or if 
fishing under a General Category scallop permit in accordance with 
paragraphs (b)(11)(i)(A) and (B) of this section; or if fishing 
pursuant to a NE multispecies open access Charter/Party or Handgear 
permit specified in Sec.  648.88; or if fishing as a charter/party or 
private recreational vessel in compliance with the regulations 
specified in Sec.  648.89. Any gear on a vessel, or used by a vessel, 
in this area must be authorized under one of these exemptions or must 
be stowed as specified in Sec.  648.23(b).
* * * * *
    (12) SNE Skate Bait Trawl Exemption Area. Vessels issued an open 
access skate permit and a skate bait Letter of Authorization as 
specified in Sec.  648.322(c) that have declared out of the DAS program 
as specified in Sec.  648.10, or that have used up their DAS 
allocations, may fish in the SNE Skate Bait Trawl Exemption Area as 
defined under paragraph (b)(12)(i) of this section, when not under a NE 
multispecies or scallop DAS, provided the vessel complies with the 
requirements specified in paragraph (b)(1)(ii) of this section.
    (i) Area definition. The SNE Skate Bait Trawl Exemption Area is 
defined by the straight lines connecting the following points in the 
order stated (copies of a chart depicting the area are available from 
the Regional Administrator upon request):

                   SNE Skate Bait Trawl Exemption Area
                       [July 1 through October 31]
------------------------------------------------------------------------
              Point                       N. lat.            W. long.
------------------------------------------------------------------------
SBT 1............................  Southeastern MA.....  71[deg]00'
SBT 2............................  41[deg]00'..........  71[deg]00'
SBT 3............................  41[deg]00'..........  72[deg]05'
SBT 4............................  Southern CT.........  72[deg]05'
------------------------------------------------------------------------

    (ii) Requirements. (A) A vessel fishing in the SNE Skate Bait Trawl 
Exemption Area specified in this paragraph (b)(12) may not fish for, 
possess on board, or land any NE regulated species.
    (B) Vessels must use trawl gear, as specified in Sec.  
648.80(b)(2)(i).
    (C) Vessels must possess an active skate bait letter of 
authorization issued by the Regional Administrator, as specified in 
Sec.  648.322(c) and fish pursuant to the terms of authorization.
    (D) Fishing may only occur from July 1 through October 31 of each 
fishing year.
* * * * *
[FR Doc. 2012-16013 Filed 6-28-12; 8:45 am]
BILLING CODE 3510-22-P