[Federal Register Volume 75, Number 115 (Wednesday, June 16, 2010)]
[Rules and Regulations]
[Pages 34049-34061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14555]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 080228326-0108-03]
RIN 0648-AW30
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; 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.
[[Page 34050]]
ACTION: Interim final rule; request for comments.
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SUMMARY: NMFS is implementing approved measures in Amendment 3 to the
Northeast Skate Complex Fishery Management Plan (Skate FMP), including
final specifications for the 2010 and 2011 fishing years (FY).
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 implements a
rebuilding plan for smooth skate and establishes 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, new possession limits, in season possession limit
triggers, and other measures to improve management of the skate
fisheries. This interim final rule also includes skate fishery
specifications for FY 2010 and 2011, pursuant to the specifications
process established in Amendment 3.
DATES: Effective July 16, 2010. Comments on the final specifications
for the 2010 and 2011 fishing years must be received by 5 p.m. on July
16, 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,
the Regulatory Impact Review (RIR), 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.
An environmental assessment (EA) was prepared for the final 2010
and 2011 specifications. A copy of this EA, and its associated finding
of no significant impact, is available from National Marine Fisheries
Service, 55 Great Republic Drive, Gloucester, MA 01930. This document
is also available online at http://www.nero.noaa.gov/nero/.
You may submit comments on the final specifications, identified by
RIN 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 Final
Specifications for 2010 and 2011.''
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, or Allison McHale, Fishery Policy Analyst, (978) 281-
9103.
SUPPLEMENTARY INFORMATION:
Background
This interim final rule implements measures contained in Amendment
3, which was approved by NMFS on behalf of the Secretary of Commerce
(Secretary) on March 23, 2010. A proposed rule to implement the
measures contained in Amendment 3 published in the Federal Register on
January 21, 2010 (75 FR 3434), with public comment accepted through
February 22, 2010. Details concerning the development of Amendment 3
were contained in the preamble of the proposed rule and are not
repeated here.
The January 21, 2010, proposed rule included proposed
specifications for FY 2010 and 2011. The proposed specifications were
included in Amendment 3 based on the best available scientific
information available at the time the final Amendment 3 document was
prepared by the Council. Specifically, the proposed specifications
included the following: (1) ACL = 30,643 mt; (2) ACT = 22,982 mt; and
(3) TAL = 9,427 mt. These proposed specifications derived from the
scientific advice of the Council's Scientific and Statistical Committee
(SSC) that the acceptable biological catch (ABC) for the skate complex
should not exceed 30,643 mt. This recommendation was developed in
September 2009 by the SSC, based on the best information considered
appropriate for use at the time, which included data from the Northeast
Fisheries Science Center (NEFSC) trawl surveys through spring 2008 for
little skate, and through fall 2007 for all other species in the skate
complex.
Although this was the best scientific information available at the
time the Council prepared and submitted Amendment 3 for review by NMFS,
in March 2010, the Council's SSC reconvened to reconsider its ABC
recommendation for FY 2010 and 2011. The SSC reconsidered its ABC
recommendation to incorporate the fall 2008 NEFSC trawl survey data,
which had not been previously incorporated into the SSC's evaluation of
an appropriate ABC for the skate complex. As a result of the inclusion
of these additional data, which showed a marked increase in the
availability of winter skates, the SSC revised its ABC recommendation
from 30,643 mt to 41,080 mt. Based on the procedures in Amendment 3, a
change in the SSC's ABC recommendation affects the specifications to be
implemented, as follows: (1) The ACL is similarly increased to 41,080
mt; (2) the ACT increases to 30,810 mt; and (3) the TAL increases to
13,848 mt (the TAL also reflects an updated analysis by the Council's
Skate Plan Development Team (PDT) on estimated discards of skates
across all fisheries). The SSC presented its recommendation to revise
the skate ABC at the April 28, 2010, meeting of the Council. At this
meeting, the Council accepted the revised ABC and requested that NMFS
incorporate this new scientific information into the implementation of
Amendment 3. Therefore, consistent with the request of the Council, the
final specifications implemented in this interim final rule reflect
this new scientific information from the Council's SSC, as required
under National Standard 2 of the Magnuson-Stevens Act (``any regulation
promulgated to implement any such [fishery management] plan . . . shall
be based upon the best scientific information available''). But,
because the scientific basis for setting the FY 2010 and 2011
specifications changed between the publication of the proposed rule and
the publication of this interim final rule, the final specifications
are published as an interim final rule in order to provide the public
with the
[[Page 34051]]
opportunity to provide comment on the revised specifications.
Approved Measures
New Biological Reference Points
For all skate species except barndoor, the BMSY proxy
(biomass target; the biomass level at which maximum sustainable yield
(MSY) can be attained on a continuing basis) is defined as the 75th
percentile of the appropriate NEFSC trawl survey (autumn or spring)
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, because 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
completely 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 was considered
to be subject to overfishing in 2007. The previous and revised 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 previous and revised biomass
reference points.
Stratified mean survey biomass (kg/tow)
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Current Previous Revised Previous Revised
Skate Species Biomass Threshold Threshold Target Target
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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
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2010-2011 Final Specifications (ACL, ACT, and TAL)
The following final specifications differ from the specifications
proposed in the January 21, 2010, proposed rule. The regulation at
Sec. 648.320(a)(7) regarding the annual review and specification
process provides that ``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.'' As explained
above, the final specifications implemented in this interim final rule
are based on the revised ABC recommendation of the Council's SSC. The
proposed specifications were based on the best information available at
the time the Council prepared Amendment 3, but this information changed
as a result of the March 17, 2010, meeting of the SSC. Thus, these
final specifications differ from those recommended by the Council in
Amendment 3 to ensure that the final FY 2010 and 2011 specifications
are based on the best available scientific information. Also, because
these final specifications were calculated according to the procedures
in Amendment 3, stemming from the revised ABC recommendation, the final
specifications are determined to satisfy the criteria set forth in
Amendment 3.
In each FY, the ACL for the skate complex will be set equal to the
ABC recommended by the Council's 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 2005-2008 average survey
biomass, which is 90.566 million lb (41,080 mt) per year. To account
for management uncertainty, an ACT will be set at 75 percent of the
ACL, or 67.924 million lb (30,810 mt) per year. Due to the difficulties
in monitoring skate discards in all fisheries during a FY, a projection
of total annual dead discards will 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 will be 30.530 million lb (13,848
mt) per year.
The TAL will be allocated between the skate wing fishery and the
skate bait 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 will receive
66.5 percent of the TAL, or 20.302 million lb (9,209 mt), and the skate
bait fishery will receive 33.5 percent of the TAL, or 10.227 million lb
(4,639 mt). Landings of skates will be monitored and allocated to the
appropriate fishery quota through information currently required to be
submitted by seafood dealers on a weekly basis.
Because this action was not effective at the start of the FY on May
1, 2010, all skate landings that accrue from May 1, 2010, until the
date of implementation of this interim final rule will be counted
against the respective skate wing and bait TALs for FY 2010, as
described above. The rationale for this attribution of FY 2010 landings
was explained in the January 21, 2010, proposed rule.
Possession Limits and Seasons
As part of the final specifications for FY 2010 and 2011, this
interim final rule implements a possession limit for the skate wing
fishery that differs from the possession limit in Amendment 3 and the
proposed rule. The possession limit for the wing fishery is revised in
order to reflect the change in TAL allocated to the wing fishery as a
result of the ABC. Under Amendment 3, the wing fishery landings are
assessed against a yearly TAL that is managed primarily through the use
of a possession limit on landings designed to constrain landings such
that the TAL is
[[Page 34052]]
not exceeded. In Amendment 3, the proposed reduction in allowable
landings in the wing fishery to the initial 13.821 million lb (6,269
mt) TAL required a substantial reduction in the possession limit, from
the original limits of 10,000 lb (4,536 kg) wing weight for all trips
less than 24 hr in duration (and 20,000 lb (9,072 kg) wing weight for
all trips greater than 24 hr in duration) to the proposed limit of
1,900 lb (862 kg) wing weight for all trips, regardless of trip
duration. Consistent with the new ABC recommendation, and the resultant
increase in the wing fishery TAL from the 13.821-million-lb (6,269-mt)
TAL in the proposed rule to the 20.302-million-lb (9,209-mt) TAL
implemented in this interim final rule, the Skate PDT recently
completed an analysis indicating that the proposed 1,900-lb (862-kg)
wing possession limit should also be revised.
This change from the proposed rule is necessary to ensure that the
management measure is based on the best available scientific
information, and to provide an opportunity for the fishery to attain
the TAL. Based on PDT analyses, if fishing patterns in FY 2010 and 2011
are similar to those in FY 2007-2009, the proposed 1,900-lb (862-kg)
wing possession limit was expected to have constrained total wing
landings to approximately two-thirds of the overall TAL, while
potentially substantially increasing regulatory discards of marketable
skates. An increase in the wing possession limit from the level
initially proposed provides a greater likelihood that the fishery will
have the opportunity to fully attain the TAL, and reduces the potential
for a substantial increase in regulatory discards.
All vessels possessing, retaining, and landing skates will 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 5,000 lb (2,268 kg) wing weight (11,350 lb (5,148
kg) whole weight) is implemented for any vessels in possession of
skates, unless the vessel is in possession of a Skate Bait Letter of
Authorization (LOA). All skates landed in wing form or sold for use as
food will accrue against the skate wing TAL. To ensure that the skate
wing TAL is not exceeded, when 80 percent of the annual skate wing TAL
is landed, the 5,000-lb (2,268-kg) skate wing possession limit will be
reduced to 500 lb (227 kg) wing weight (1,135 lb (515 kg) whole weight)
for the remainder of the FY. The purpose of this measure is to reduce
incentives to target skates, but allow some incidental catches of
skates to be landed, rather than discarded.
This rule retains the requirement that a vessel possessing a valid
Federal skate permit must also fish under an Atlantic sea scallop,
Northeast (NE) multispecies, or monkfish day-at-sea (DAS) in order to
possess, retain, and land skates, unless that the vessel is otherwise
exempted under Sec. 648.80.
This action also implements an incidental skate trip limit of 500
lb (227 kg) wing weight, or 1,135 lb (515 kg) whole weight, for any
vessel issued a Federal skate permit that is not fishing under a DAS.
A possession limit of 20,000 lb (9,072 kg) whole weight is
implemented for vessels participating in the skate bait fishery that
also possess a Skate Bait LOA. The existing requirements of the Skate
Bait LOA will 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. Vessels that do not possess a Skate
Bait LOA, or that land any combination of whole skates and skate wings
(even if the vessel possesses a Skate Bait LOA) are subject to the
appropriate wing fishery possession limit. To help maintain a
consistent market supply of bait skates, the skate bait TAL will be
split into three quota periods per year. All skates landed in whole
form that are sold for use as bait will accrue against the skate bait
TAL. When 90 percent of the skate bait quota is harvested in each quota
period, the possession limit will be reduced to the whole weight
equivalent of the skate wing fishery possession limit until the start
of the next period, whether it be 5,000 lb (2,268 kg) or 500 lb (227
kg) wing weight at the time.
The bait skate possession limit implemented in this interim final
rule is the same as that recommended by the Council in Amendment 3 and
in the proposed rule. Although the TAL allocated to the bait fishery is
increased in this interim final rule from the level in Amendment 3 and
the proposed rule, similar to the wing fishery TAL, the basis for
establishing a possession limit for the bait fishery, and the level at
which that possession limit was set, was different than for the wing
fishery. Rather than an overall annual TAL, the bait fishery TAL is
subdivided into three quota periods. When landings of bait skates are
projected to reach 90 percent of the quota for each quota period, the
bait fishery possession limit is reduced to the standing wing fishery
possession limit, until the start of the next quota period. Because of
concerns that derby-style fishing, in conjunction with the open-access
nature of the bait fishery, could result in early ``closures'' of the
bait fishery (so-called due to the larger volumes of bait skates needed
to supply the bait market) that would disrupt the market for bait
skates and have substantial negative consequences for the lobster
fishery that is largely dependent on skates for bait, the 20,000-lb
(9,072-kg) possession limit was suggested by members of the Council's
Skate Industry Advisory Panel as a mechanism to control the pace at
which the landings approached the quota period limits.
As an additional conservation measure, vessels declared to be
fishing on a Northeast Multispecies Category B DAS will have a skate
possession limit of 220 lb (100 kg) wing weight (500 lb (227 kg) whole
weight).
Accountability Measures
If the annual TAL 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) will be
reduced by 1 percent for each 1-percent overage for that fishery. This
measure is intended to 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) will be increased by 1 percent
for each 1-percent overage. For example, if the ACL is exceeded by 5
percent, the ACL-ACT buffer will be increased to 30 percent in the
subsequent fishing year, which is intended to 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 PDT will convene annually to review skate
stock status, fishery landings and discards, and determine if any AMs
were triggered by fishing in the previous year. The annual review will
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 could then recommend to the Council that
changes to the skate management measures be made via specifications or
framework adjustment. Specifications for the skate fisheries may be
implemented for up to 2 years.
[[Page 34053]]
A Stock Assessment and Fishery Evaluation (SAFE) report for the
skate complex will be completed every 2 years by the Skate PDT. The
SAFE report will 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.
Comments and Responses
A total of 11 comments were received on the proposed rule and the
amendment from 4 individuals (2 comments from the same individual), 3
industry groups, 2 state agencies (Massachusetts Division of Marine
Fisheries (MADMF) and Rhode Island Department of Environmental
Protection (RIDEM)), and the Council. Four commenters expressed either
general or specific support for the management measures in Amendment 3,
one commenter disagreed with NMFS's interpretation of certain
provisions necessary to implement the amendment, and four commenters
opposed the implementation of Amendment 3. One commenter appeared to be
confused about which alternatives were selected by the Council in
relation to those that NMFS included in the proposed rule. The comments
opposing Amendment 3 and its proposed rule focused on the expected
negative economic impacts of the Amendment, particularly the impacts
associated with the proposed reductions in the TALs and the possession
limits.
This section summarizes the principle comments contained in the
individual comment letters that pertained to Amendment 3 and the
proposed rule, and NMFS's response to those comments. Any comments
received that were not specific to the management measures contained in
the Amendment 3 proposed rule, or in the amendment document, are not
responded to in this interim final rule.
Comment 1: The Council noted that the regulatory text describing
the AMs in Sec. 648.323 required further clarification to clearly
reflect the Council's intent. Specifically, the Council proposed that
the term ``next fishing year'' with respect to the description of the
AM to address TAL overages described in section 5.1.3.2 of the
amendment, should refer to the year immediately following the year in
which the TAL overage occurs. Additionally, the Council noted that the
AM to adjust the ACL buffer if skate catches exceed the ACL would be
applied in the second fishing year following the year in which the
overage occurred, and requested that the language in Sec. 648.323(b)
be clarified to be consistent with the description provided in section
5.1.3.3 of the amendment.
Response: In this interim final rule, NMFS has revised Sec.
648.323(b) so that it is clear that any adjustment of the ACL buffer
made necessary due to an overage of the ACL would be implemented in the
second year following the year for which the overage is determined to
have occurred. However, with respect to the TAL overage issue raised by
the Council, the amendment provides that, if upon review of the
complete landings data from a FY it is determined that a TAL is
exceeded by more than 5 percent, the trigger point at which the
possession limit is reduced would be adjusted by the same percentage
``in the next FY.'' For example, if the skate wing TAL is exceeded by
10 percent in one FY, then the AM requires that the wing possession
limit trigger would be changed from 80 percent of the wing TAL to 70
percent of the wing TAL. However, the FMP is vague as to the meaning of
the ``next'' FY. Due to the time lags inherent in data collection, and
the time necessary to ensure that complete data are used to determine
whether a TAL has been exceeded, including time for late data to be
collected and entered into the system, data processing, audits, and
analysis, it typically would take several months after the end of a FY
before NMFS would be able to determine the full extent to which a TAL
may have been exceeded. Thus, in all discussions with the Council on
this issue, NMFS staff advised the Council that it would not be
practicable to make such an adjustment in the FY that immediately
follows the year in which the overage occurred. However, in their
comment letter on the proposed rule, the Council states that this was,
in fact, their intent, and that such AMs should be imposed in the year
immediately following the year in which the overage occurred.
In order to implement such a process, at least two rulemakings
would be required: The first would be completed in advance of the start
of a FY, and would establish the specifications based on the best
available information at the time; and the second would be completed
several months (potentially up to 6 months) after the start of the FY,
to adjust the TAL trigger points to account for any overages determined
to occur in the prior FY. This process, and the implications for
disruption to the on-going FY, were never discussed by the Council nor
analyzed in the Amendment 3 document. Therefore, under its authority at
section 305(d) of the Magnuson-Stevens Act, NMFS retains the language
that this AM would be implemented in the FY that follows the year in
which the overage is identified (i.e., an overage in 2010 would be
identified in 2011, once complete data on FY 2010 are available, and
the AM would be implemented in FY 2012).
Comment 2: The Council noted that section 5.1.5 of the amendment
recommended that the skate bait fishery TAL be monitored based upon
attributing skate landings by vessels with a valid, active Skate Bait
LOA to the skate bait fishery, regardless of how those landings are
classified by Federal dealers (i.e., as either food or bait). The
Council's concern appears to be that dealers may misclassify skates
landed in one form as another product form due to processing and/or
marketing reasons. The Council further states that the monitoring
method proposed by NMFS in Sec. 648.322(a) may lack transparency and
result in unexpected possession limit adjustments.
Response: NMFS disagrees that the TAL monitoring method proposed by
the Council is the best approach to accurately monitoring the skate
TALs being established through this amendment. Council and NMFS staff
engaged in several discussions on this issue during the development of
Amendment 3. As a result of those discussions, which involved NMFS
staff experienced in monitoring landings of other NE fisheries, NMFS
determined that using the product classification provided by Federal
dealers, as required under Sec. 648.7(a)(1)(i), is the most reliable
approach to monitoring the skate TALs, because it most accurately
reflects how the product is being utilized, versus the form (wing or
whole) in which it was landed. Furthermore, the regulations deemed by
the Council to be consistent with Amendment 3 clearly state that the
dealer's product classification will be used to allocate skate landings
to the appropriate TAL, not possession of the Skate Bait LOA as
suggested by the Council in the comments on the proposed rule. Thus,
the method described in the proposed rule to monitor skate landings is
being implemented in this interim final rule.
Comment 3: The Council further noted that a provision in Sec.
648.322(b) of the proposed regulations would have exempted vessels
targeting skate that also participate in an approved sector under the
NE Multispecies FMP from the requirement to use either a NE
multispecies, monkfish, or scallop DAS
[[Page 34054]]
in order to land skate wings was not the intent of the Council in
developing Amendment 3. The Council cites the baseline measure
identified in section 4.16.1 of the original Skate FMP as evidence that
the Skate FMP relies on the DAS mechanism in other fisheries to control
access to the skate resource. The Council also notes that section 5.1.8
of Amendment 3 establishes a 500-lb (227-kg) whole weight (200-lb (91-
kg) wing weight) possession limit for vessels fishing under a NE
multispecies Category B DAS to prevent vessels from using these DAS to
target skates because these DAS were originally intended under the NE
Multispecies FMP to allow vessels to target stocks at ``healthy''
biomass levels, while Amendment 3 is intended to reduce skate fishing
effort. The Council further cites inequity with non-sector vessels and
concern over how the removal of the DAS requirement for sector vessels
could increase targeting of skates by these vessels.
Response: The Council's Amendment 3 document is internally
inconsistent with respect to this issue, stating that vessels targeting
skates must be under a DAS in some sections and not in others.
Furthermore, the regulations deemed by the Council to be consistent
with Amendment 3 at its April 2009 meeting were silent on this issue.
As a result, NMFS included a provision in the proposed rule to address
the complicated interaction between the new NE multispecies sectors
authorized by Amendment 16 and the skate fishery. However, given the
Council's comments on this issue, it is clear that it did not intend
for sector vessels to be exempt from DAS requirements for the purpose
of targeting skate wings. Thus, it appears the regulations deemed by
the Council to be consistent with Amendment 3 were consistent with its
intent. Therefore, this interim final rule removes the sector provision
in the proposed rule from the regulations. As a result, all vessels
landing skate wings in excess of the proposed 500-lb (227-kg) (wing
weight) incidental limit will be required to utilize a NE multispecies,
monkfish, or scallop DAS. This change is consistent with the Council's
comments on this issue, as well as similar comments made by MADMF.
Comment 4: Three industry members and one industry group submitted
comments recommending that some form of limited access or history-based
allocations be developed and implemented for the bait skate fishery to
mitigate the economic impacts of Amendment 3 and ensure a steady supply
of bait for the lobster fishery. Three of these individuals
specifically asked that such a provision be included in Amendment 3.
Response: This measure was not included nor specifically considered
in Amendment 3, and, therefore, NMFS has no legal authority to
establish such a measure as part of the implementation of Amendment 3.
However, the Council is aware that some members of the bait skate
fishery would like such a program, and on July 30, 2009, at the request
of the Council, NMFS established a control date for the bait skate
fishery for this purpose. The effect of this control date is to
preserve the opportunity for the Council, should it elect at some time
in the future to develop and implement a limited access program for the
bait fishery that may distinguish participation before and after July
30, 2009. The Council may take up this issue at any time deemed
appropriate.
Comment 5: One individual, two industry groups, and two state
agencies raised concerns about the TALs and possession limits proposed
in Amendment 3. The commenters suggest that new scientific information
indicates that the TALs proposed in the January 21, 2010, proposed
rule, which would have represented substantial reductions from recent
landings, along with the proposed possession limits, are unnecessary
and would result in economic harm to the fishing industry dependent on
skates. These commenters urged NMFS and the Council to incorporate this
new scientific information as soon as possible and set FY 2010 total
allowable catch and trip limits accordingly.
Response: The ``new scientific information'' referred to in the
comment letters is the 2008 fall trawl survey data, which were reviewed
by the SSC at its March 17, 2010, meeting. As explained earlier in this
preamble, the SSC reconsidered the FY 2010-2011 ABC recommendation for
the skate complex using the updated survey data, and provided a new ABC
recommendation of 41,080 mt. Based on the recommendation of the SSC,
the Skate PDT met on April 7, 2010, to discuss options for revising the
trip limits for the wing fishery to achieve the new target TAL.
Therefore, as urged by these commenters, this interim final rule
revises the specifications in the proposed rule and implements final
specifications that are consistent with the new scientific information.
This interim final rule adjusts the ABC, associated TALs, and wing
possession limit to be consistent with the most recent recommendation
of the SSC, as requested by the Council.
Comment 6: One individual submitted a comment opposing a bait trip
limit lower than the amount he currently catches, and stated that the
wing fishery should not be included in the bait fishery.
Response: This interim final rule implements a trip limit of 20,000
lb (9,072 kg) of whole skate for the skate bait fishery. Originally,
the Council's preferred option had no trip limit for the bait fishery,
but relied entirely on a seasonal quota to control landings. However,
at the request of members of the bait fishery that serve on the
Council's industry advisory panel, the Council adopted a 20,000-lb
(9,072-kg) trip limit implemented in this interim final rule as a means
of ensuring a steady supply of bait by preventing the seasonal quotas
from being reached too quickly. Additionally, NMFS clarifies that the
skate wing fishery is not considered part of the bait skate fishery.
The Council and NMFS recognize the differences between these two
fisheries and, through the Skate FMP, have adopted specific measures to
manage these fisheries differently. This individual may be confused as
to how the TALs for the skate wing fishery and the bait skate fishery
are derived. An overall TAL is established for the NE skate complex,
which is then split into specific TALs for the skate wing fishery and
bait skate fishery based upon the percentages approved in Amendment 3
and implemented through this interim final rule.
Comment 7: In addition to the comments above regarding the proposed
TAL and possession limits, RIDEM also provided several other comments.
The RIDEM questioned the rationale for imposing ``drastic reductions''
on the bait skate fishery, suggested that the proposed rule is contrary
to the alternatives selected by the Council, and suggested that steps
should be taken to address the seasonality of the bait skate fishery
and the need for a steady supply of bait skates.
Response: NMFS is not proposing to implement an alternative not
selected by the Council. RIDEM suggests that the Council selected
alternative 1B for the wing fishery and alternative 4 for the bait
fishery; however, the Amendment 3 document, and the Council record,
clearly indicate that the Council's final decision was to select
alternative 3B for the wing fishery, along with alternative 4 for the
bait fishery. Alternative 1B would have required implementation of time
and area closures for all fishing gear capable of catching skates,
which would have included gear used in the sea scallop, monkfish, and
groundfish fisheries. This alternative was not favored by either the
Council or the fishing industry that provided
[[Page 34055]]
comments to the Council during the development of Amendment 3.
As to the comments on the measures for the bait fishery, the
Amendment 3 document clearly explains that the catch and landings of
skates cannot be reliably distinguished by species, and that the best
scientific advice from the Council's SSC is to establish catch limits
(ABC, ACL, TALs) at the complex level (that is, inclusive of all seven
skate species). Therefore, if the complex-level ABC is reduced, or
discards of skates increase, then the resulting reduction in the
overall skate TAL would necessitate a reduction in the TALs available
to both the bait and wing fisheries. Also, RIDEM appears to
misunderstand the specific actions proposed in Amendment 3 for the bait
fishery. The proposed system of three quota periods (rather than a
single annual quota) was designed precisely to maximize the probability
of ensuring a steady supply of bait skates when most needed. The annual
TAL is not divided equally among the three quota periods, but is
allocated based on evidence of the seasonality of this fishery; in
fact, 66.7 percent of the annual TAL is allocated to the quota period
May-October, which is the season RIDEM indicates has the highest demand
for bait skates. Also, the 20,000-lb (9,072-kg) possession limit
proposed for the bait skate fishery was suggested initially by members
of the bait skate fishing industry as a way to maintain a consistent
supply of skates by controlling landings and avoiding a derby fishery.
Changes From Proposed Rule to Interim Final Rule
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
sections 304(b) and 305(d) of the Magnuson-Stevens Act. This interim
final rule makes minor technical changes to the proposed rule to
address an issue of clarity concerning ACL overages that was raised by
the Council in its comments; to clarify the regulatory text concerning
the Skate Bait LOA; and to correct an incorrect cross-reference in the
proposed rule. These changes are listed below in the order in which
they appear in the regulations.
In Sec. 648.322(c), the wording ``when a vessel is fishing
pursuant to the terms of the authorization'' is added to the
introductory paragraph for clarity. Additionally, the last sentence
under Sec. 648.322(c)(4) is removed and a new Sec. 648.322(c)(5) is
added to more clearly reflect the conditions under which a vessel in
possession of a Skate Bait LOA may retain skate wings.
In Sec. 648.323(b), the phrase ``in the subsequent fishing year''
is revised to read ``in the second fishing year following the fishing
year in which the ACL overage occurred,'' to more accurately reflect
when the intended action will occur.
In Sec. 648.323(c), the cross-reference to paragraph Sec.
648.323(c) is corrected to read paragraph (d).
In addition to the changes identified above, and consistent with
the requirement under National Standard 2 of the Magnuson-Stevens Act
that ``any regulation promulgated to implement any such [FMP] . . .
shall be based upon the best scientific information available,'' NMFS
is implementing final specifications for FY 2010 and 2011 that differ
from the proposed specifications. The authority for NMFS to deviate
from the specifications included in Amendment 3 is provided at Sec.
648.320(a)(7), which stipulates that the specifications published in
the Federal Register may differ from those recommended by the Council,
so long as the reasons for the differences are clearly stated and the
revised specifications satisfy the criteria in the regulations. This
regulation (Sec. 648.320(a)(7)) was deemed by the Council to be
necessary and appropriate for the implementation of Amendment 3, and
was included in the January 21, 2010, proposed rule. The scientific
basis for the revised final specifications is provided earlier in the
preamble to this interim final rule and is not repeated here. As part
of the final specifications for FY 2010 and 2011, the following
regulation has been revised.
In Sec. 648.322(b)(1), the skate wing possession limit is revised
to read ``Up to 5,000 lb (2,268 kg) of skate wings (11,350 lb (5,148
kg) whole weight) per trip, except . . .''
Classification
The Administrator, Northeast Region, NMFS, determined that the
management measures implemented by this interim final rule are
necessary for the conservation and management of the NE skate fishery,
and are consistent with the Magnuson-Stevens Act and other applicable
laws.
This interim final rule has been determined to be not significant
for purposes of Executive Order (E.O.) 12866.
The Council prepared an FEIS for Amendment 3. A notice of
availability was published on January 22, 2010 (75 FR 3730). The FEIS
describes the impacts of Amendment 3 measures on the environment. Most
of these measures were designed to reduce skate landings. As a result,
the impacts are primarily social and economic, as well as biological.
In general, all biological impacts are expected to be positive.
Although some of 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. In
approving the Amendment 3 on March 23, 2010, NMFS issued a Record of
Decision (ROD) identifying the selected alternatives. A copy of the ROD
is available from NMFS (see ADDRESSES).
The Assistant Administrator for Fisheries, NOAA, finds good cause
pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the
opportunity for public comment on the revised final specifications for
FY 2010 and 2011 because it is unnecessary, impracticable, and would be
contrary to the public interest. On January 21, 2010, NMFS published a
proposed rule in the Federal Register for Amendment 3 to the Skate
Complex FMP. This proposed rule included proposed specifications for FY
2010 and 2011 that were consistent with the best scientific information
available at the time (i.e., the September 2009 recommendations of the
Council's SSC) and that were derived according to the protocols in
Amendment 3 for calculating an ACT and associated TALs based on the ABC
recommendation. After the comment period on the proposed rule closed,
but before this interim final rule was prepared, the Council's SSC
reconvened in late March 2010 to consider newly available information
regarding the status of the skate complex. As a result of this new
information, the SSC revised its recommendation for the skate ABC for
FY 2010 and 2011. At its April 28, 2010, meeting, the Council accepted
the revised ABC and requested that NMFS incorporate this new scientific
information into the implementation of Amendment 3. The final
specifications implemented in this interim final rule are consistent
with the new ABC recommendation, which is now considered to be the best
scientific information available.
Providing an additional opportunity for public comment on the final
specifications is unnecessary because the public was provided an
opportunity to consider, and provide comments on, the changes to the
specifications resulting from the revised ABC recommendation in advance
of and
[[Page 34056]]
during a public meeting of the Council held on April 28, 2010, and NMFS
has fully considered those comments in modifying the specifications in
this interim final rule.
The April 28, 2010, Council meeting was open to the public, and
prior notice of this meeting was announced in the Federal Register on
April 8, 2010 (75 FR 17901). The meeting notice explained that the
Council's SSC would provide its report to the Council on the revised
ABC recommendation for skates, and that the Council would consider
taking action and potentially revising management measures for the
skate fishery. Members of the skate fishing industry and the general
public attended the meeting, and several provided comments to the
Council on the issue at hand (i.e., revising the FY 2010 and 2011
specifications to be consistent with the new ABC recommendation). At
that meeting, following an open public discussion, the Council adopted
a motion to incorporate the new ABC from the SSC into Amendment 3 and
adjust the skate wing possession limit. The motion passed unanimously,
with one abstention. Also, based on the comments received on the
proposed rule, and the public review by the Council of the new ABC and
its implications for the FY 2010 and 2011 specifications, there is
widespread expectation in the skate fishing industry that the
specifications will be revised as soon as possible to reflect the new
ABC. Therefore, providing an additional opportunity for public comment
on the final specifications is unnecessary.
Providing an additional opportunity for public comment on the final
specifications is impracticable and contrary to the public interest for
two reasons: (1) FY 2010 began on May 1, 2010, and until these final
specifications are implemented, there is significant uncertainty and
confusion within the fishing industry regarding the regulations to
which the fishery is currently subject, and as to the regulations that
will be implemented for the remainder of FY 2010; and (2) until these
final specifications are implemented, the fishery is subject to the
less restrictive measures in place prior to Amendment 3, which are
inconsistent with the best available scientific information on the
status of the skate resource and could result in disruptions to the
fishing industry. Amendment 3 to the Skate FMP represents a significant
change in the management regime for the skate fishery. For one,
Amendment 3 establishes an ACL and AMs consistent with the reauthorized
Magnuson-Stevens Act. As part of the ACL and AM management structure,
specific TALs are derived and allocated separately to the skate wing
and bait skate segments of the skate fishery. A possession limit is
imposed for the first time on the bait skate fishery, which will now
operate under three seasonal quotas, with the potential for the
possession limit to be reduced if the seasonal quota trigger threshold
is reached. Although the skate wing fishery has operated under a
possession limit prior to Amendment 3, the amendment proposed a
significant reduction in this limit (and although higher than initially
proposed, these final specifications implement a possession limit that
remains substantially below the pre-Amendment 3 limits), and the wing
fishery now faces further restrictions in allowable landings if the TAL
trigger threshold is reached too early in the FY. These new measures
are necessary for the conservation and management of the skate
resources, and are required under the reauthorized Magnuson-Stevens
Act. However, until this interim final rule, including the revised
final specifications, is implemented, the fishery remains free to
operate under the less restrictive pre-Amendment 3 regulations.
Continued operation under the less restrictive pre-Amendment 3
regulations for the time it would take to proceed with an additional
proposed rule and opportunity for public comment would significantly
increase the risk of substantial disruptions to the skate fishery and
the businesses that depend upon it, due to unexpected reductions in
possession limits if TAL trigger thresholds are reached earlier than
planned. This could also have the effect of limiting the availability
of skate products on the market to the detriment not only of skate
vessels and dealers, but also of the entire southern New England
lobster fishery, which depends almost entirely on skates for use as
bait. As noted above, the FY began on May 1, 2010, and the fishery is
currently operating under the less restrictive pre-Amendment 3
regulations, which include unlimited possession by the bait fishery and
much higher possession limits by the wing fishery than allowed under
this rule. However, all landings by the bait and wing fisheries that
occur between May 1, 2010, and the effective date of this interim final
rule will be counted against the respective fishery TALs once the TALs
are implemented. If landings during this interim period exceed those
that would be expected under the Amendment 3 measures, then it is
likely that the TAL trigger thresholds may be reached earlier in the FY
than planned or expected. This could result in disruptions not just to
the skate fisheries, which would be subject to earlier than expected
reductions in allowable landings, but also to the lobster fishery and
the businesses that depend upon it, due to an unexpected reduction in
the supply of lobster bait (which is the primary use of bait skates).
The lobster fishery, in particular, depends upon a steady, consistent
supply of bait skates year round. The measures in Amendment 3, with the
bait skate TAL allocated across three quota periods, in combination
with a 20,000-lb (9,072-kg) per trip possession limit, were carefully
crafted in consultation with the fishing industry to minimize such
disruptions. Delaying implementation of the final specifications even
longer than has already occurred, in order to solicit additional public
comments, would only increase the likelihood of early reductions in
allowable landings and disruptions in the fishery that are contrary to
the public's interest.
NMFS could not have completed prior notice and comment rulemaking
on the final specifications for FY 2010 and 2011 any earlier, because
the Council's SSC did not meet until late March 2010 to consider the
newly available information on the skate resources, and did not present
a final recommendation on the revised ABC until the April 28, 2010,
Council meeting. The Council, similarly, did not take a position on
incorporating this new ABC into the Amendment 3 specifications process
until April 28, 2010, nor did the Council evaluate the analyses
completed by its PDT regarding the need to modify the skate wing
fishery possession limit to be consistent with the revised
specifications until this time. Immediately following the conclusion of
the April 2010 Council meeting, and the decisions and recommendations
by the Council and its SSC therein, NMFS undertook to revise this
interim final rule implementing Amendment 3 to ensure it remains
consistent with the best available scientific information and the
intent of the Council.
Although prior notice and comment have been waived for the final FY
2010 and 2011 specifications implemented in this rule, NMFS is
publishing this rule as an interim final rule and providing an
opportunity for additional public comment to be submitted for 30 days
following publication. NMFS will consider any comments submitted and
may further revise the final specifications based on the comments
received.
[[Page 34057]]
NMFS, pursuant to section 604 of the Regulatory Flexibility Act
(RFA), has prepared a FRFA in support of Amendment 3. 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, and a summary of the analyses completed to support the
action. A copy of the IRFA, RIR, and FEIS are available upon request
(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
interim 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
Eleven public comments were submitted on the proposed rule.
Although none of these comments were specific to the IRFA, several
commenters noted the negative economic effects of the proposed
possession limit for the skate wing fishery in Amendment 3. NMFS has
responded to these comments in the Comments and Responses section of
this preamble. Several changes were made to the final specifications
for FY 2010 and 2011 implemented in this interim final rule that are
pertinent to some of the comments received. As described earlier in
this preamble, the final specifications implemented in this action have
been revised to be consistent with the most recent scientific
information represented by the new ABC recommendation from the
Council's SSC. Thus, consistent with several of the comments on the
proposed rule, the final specifications for FY 2010 and 2011 are as
follows: (1) An ABC and ACL = 41,080 mt; (2) an ACT = 30,810 mt; (3) a
Federal waters TAL = 13,848 mt; (4) wing and bait TALs = 9,209 mt and
4,639 mt, respectively; and (5) a skate wing possession limit of 5,000
lb (2,268 kg) per day (wing weight).
Description and Estimate of Number of Small Entities to Which the Final
Rule Will Apply
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.
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.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
This action does not introduce any new reporting, recordkeeping, or
other compliance requirements. This interim final 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
All of the alternatives considered in this action were developed by
the Council based on input from members of the skate fishing industry
that serve on the Council's industry advisory panel. Other than the no
action alternative, of all the alternatives developed by the Council
and considered in Amendment 3, the set of management measures
implemented in this interim final rule represent those with the least
economic impact on small entities. Based on the best available
scientific information on the status of the skate complex, in order to
be consistent with the requirements and intent of the ACL provisions of
the reauthorized Magnuson-Stevens Act, as well as the National Standard
1 guidelines, the overall catch (inclusive of landings and dead
discards) of skates must be reduced up to 26 percent from recent catch
levels. All of the alternatives considered in Amendment 3, with the
exception of the no action alternative, were designed to achieve this
reduction in catch, albeit in different ways. But, because all of the
relevant alternatives are designed around a catch reduction, there are
economic impacts associated with them that would be borne by the
fishing industry. The only alternative considered in Amendment 3 that
would not result in any direct economic impacts on the skate fishing
industry was the no action alternative; however, this alternative could
not be implemented because it is inconsistent with the requirements and
intent of the Magnuson-Stevens Act.
Alternatives 1A, 1B, 2, and 4 proposed time and/or area closures
for bottom-tending fishing gears in the Gulf of Maine and Southern New
England as a method to reduce skate catch in the NE multispecies,
monkfish, and scallop fisheries primarily. These closures, however,
would have restricted vessels from harvesting their more valuable
target species. One reason the preferred alternative was selected (a
combination of Alternatives 3B and 4) was that it did not include any
time/area closures, and minimized the impact of the Skate FMP on other
fisheries that only incidentally catch skates. The preferred
alternative puts more focus on reducing only skate landings, and
therefore skate revenues, rather than potentially reducing landings and
revenues from higher valued species across a broader spectrum of New
England fisheries, which would have had a direct economic impact on far
more small entities than the preferred alternative. Because skates are
a comparatively low value species, the preferred alternative focuses
the anticipated economic impacts to the skate fishery, rather than on
the NE multispecies, monkfish, or scallop fisheries.
The preferred alternative also attempts to minimize economic
impacts by using a target TAC approach rather than a hard TAC approach.
Under the target TAC alternatives, landings of skates are never
completely prohibited as the TAC is approached. Possession limits will
be reduced, but as incidental catch of skates is unavoidable in many
fisheries, those catches could be converted to landings rather than to
discards. Under the hard TAC alternatives, when the TAC was harvested,
all skate catch would have to be discarded.
Dividing the skate bait fishery TAL into three seasons, as
described in Alternative 4, in combination with the 20,000-lb (9,072-
kg) per trip bait skate possession limit, is anticipated to minimize
economic impacts on the skate bait fishery. Due to the market dynamics
in the skate bait fishery and the need to fill bait orders for the
lobster fishery, a bait fishery closure too early in the year could
result in economic hardship for skate bait fishermen as well as lobster
fishermen. The three seasonal quotas are intended to help ensure that
any skate bait fishery closures would be short term, and landings would
be able to continue late in the FY, allowing for
[[Page 34058]]
a relatively constant supply of bait year round.
This interim final rule also implements revised final
specifications for FY 2010 and 2011, consistent with the best
scientific information available, as described above. These final
specifications are substantially higher than the specifications
described in the proposed rule and IRFA, and are expected to impose
less significant costs to the fishing industry in the form of overall
landings limits (TALs) 47 percent higher than initially proposed. Also,
based in part on comments received on the proposed rule and relevant to
the IRFA, this action increases the per-trip possession limit for the
skate wing fishery from 1,900 lb (862 kg) to 5,000 lb (2,268 kg) wing
weight. This measure will also minimize the economic impacts associated
with this action on the participants of the wing fishery.
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. As part of this rulemaking
process, a small entity compliance guide was prepared. The guide will
be sent to all holders of permits issued for the Northeast skate
fishery. In addition, copies of this interim final rule and guide
(i.e., permit holder letter) are available from the Regional
Administrator, NMFS (see ADDRESSES).
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: June 10, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out 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. 648.13, paragraph (h) 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 underSec. 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).
* * * * *
0
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 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).
* * * * *
0
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, 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, and complies with the requirements specified at
Sec. 648.322(c); or
* * * * *
0
5. Section 648.320 is revised 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 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
[[Page 34059]]
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:
(i) Possession limits in each fishery;
(ii) In-season possession limit triggers for the wing and/or bait
fisheries; and
(iii) 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 consider the
recommendations and publish a rule in the Federal Register proposing
specifications and associated measures, consistent with the
Administrative Procedure Act. The Regional Administrator may propose
specifications different than those recommended by the Council. 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, the FMP, and other applicable laws. 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.
0
6. Section 648.321 is revised 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 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
[[Page 34060]]
(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.
0
7. Section 648.322 is revised 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 5,000 lb (2,268 kg) of skate wings (11,350 lb (5,148 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 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 when
the vessel is fishing pursuant to the terms of authorization at least
the following requirements and conditions are met:
[[Page 34061]]
(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.
(5) Vessels that choose to possess or land skate wings during the
participation period of this letter of authorization must comply with
possession limit restrictions under paragraph (b) of this section for
all skates or skate parts on board. Vessels possessing skate wings in
compliance with the possession limit restrictions under paragraph (b)
may fish for, possess, or land skates for uses other than bait.
(6) 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).
0
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 (d), 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 second fishing year following the
fishing year in which the ACL overage occurred, 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. 2010-14555 Filed 6-15-10; 8:45 am]
BILLING CODE 3510-22-S