[Federal Register Volume 77, Number 82 (Friday, April 27, 2012)]
[Proposed Rules]
[Pages 25117-25120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-10121]



National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120417417-2417-01]
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: Proposed rule, request for comments.


SUMMARY: NMFS proposes to modify 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 
from July through October of each year, outside of the NE multispecies 
days-at-sea (DAS) program. This action would allow vessels to harvest 
skates in a manner that is consistent with the bycatch reduction 
objectives of the NE Multispecies FMP.

DATES: Comments must be received no later than 5 p.m., eastern daylight 
time, on May 14, 2012.

ADDRESSES: An environmental assessment (EA) was prepared for the 
Secretarial Amendment that describes the proposed action and other 
considered alternatives, and provides an analysis of the impacts of the 
proposed 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.
    You may submit comments, identified by FDMS docket number NOAA-
NMFS-2012-0098, by any one of the following methods:
     Written comments (paper, disk, or CD-ROM) should be sent 
to Paul J. Howard, Executive Director, New England Fishery Management 
Council, 50 Water Street, Mill 2, Newburyport, MA 01950. Mark the 
outside of the envelope, ``Comments on Skate Bait Exempted Fishery.''
     Comments also may be sent via facsimile (fax) to (978) 
     Submit all electronic public comments via the Federal e-
Rulemaking Portal: http://www.regulations.gov.
    Instructions: Comments will be posted for public viewing as they 
are received. All comments received are a 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: Travis Ford, Fishery Management 
Specialist, 978-281-9233; fax 978-281-9135; email: 



    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 Southern New England (SNE) Exemption 
Areas found in 50 CFR 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 
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

[[Page 25118]]

fishery for trawl vessels using 6.5-inch 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 proposed rule as Alternative 2). 
Sector vessels targeting skate bait and fishing on a trip in SNE are 
currently required to declare a NE multispecies DAS trip. These vessels 
are charged a discard rate that is determined by the Northeast 
Fisheries Observer Program (NEFOP) and at-sea monitoring (ASM) discard 
data. The discard rate is based on the sector, area fished, and gear 
type, referred to as a discard stratum. Because ``target species'' is 
not part of each discard stratum, vessels that are targeting skate bait 
(and catching very little to no groundfish) are being charged the same 
discard rate as all other declared groundfish trips in that discard 
stratum. This has led to higher than observed discard rates of 
groundfish when targeting skate bait when compared to actual discard 
rates on observed skate bait trips. Forfeiting the value of discards at 
a higher rate than is actually occurring has imposed an economic burden 
on sector fishermen, as the discarded fish that are charged to the 
sector's Annual Catch Entitlement (ACE) could otherwise be landed for 
sale. Reducing a sector's ACE by a higher rate than is actually 
occurring has particularly adversely affected the sector's ``choke 
stocks,'' i.e., fish for which the sector has a small amount of ACE, 
either because of a low catch history or a small annual catch limit 
(ACL) for the stock.
    NEFOP and 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 to July through 
October (referred to in the EA and in this proposed 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. It is important to note that 
large portions of the original area requested by industry had no 
associated observer data, and thus could not be evaluated. Therefore, 
the size of the exemption area was reduced to cover only areas where 
ASM and NEFOP covered trips existed.
    For Alternative 1, all large mesh (6.5-inch mesh) DAS trips from 
2010 to 2011 were analyzed, and the data showed that no trips caught 
more than 5 percent groundfish. Therefore, there were no trips that 
caught over 5 percent NE multispecies that would be exempted under this 
action. The data indicate that Alternative 2 (the non-preferred 
alternative) would likely result in a higher percentage of groundfish 
catch in the months of June and November than in July through October.
    Exempted fisheries have a maximum allowable bycatch of 5 percent 
regulated groundfish under Sec.  648.80(a)(8)(i). For the months of 
July through October, from 2006 to 2011, the average percentage of 
regulated groundfish catch for trips in the directed SNE skate bait 
fishery was 1.25 percent, well under the 5 percent limit for an 
exempted fishery. No single month's average NE multispecies catch 
exceeded 2 percent of the total catch. The vast majority of groundfish 
bycatch species in the skate bait fishery are SNE winter flounder and 
southern windowpane flounder. Following a recent assessment, SNE winter 
flounder is no longer experiencing overfishing but remains overfished. 
Recent information has changed the status of the Southern windowpane 
flounder stock, which was previously experiencing overfishing but not 
overfished; it is currently not overfished, is no longer experiencing 
overfishing, and was rebuilt in 2009. The discards expected from this 
exemption should not cause the ACL for these species to be exceeded.
    Further, because of the relationship between the skate bait fishery 
and the lobster fishery, this action is not likely to increase effort 
in the skate bait fishery. Although this action would exempt vessels 
targeting skate bait from the NE multispecies regulations, the demand 
for skate bait is dependent on the lobster fishery's demand for bait. 
Consequently, this exemption is not expected to increase the demand for 
skate bait. Further, the skate bait fishery is controlled by a Total 
Allowable Landing (TAL) limit that prevents the overharvesting of skate 
bait. Because it would neither increase demand for skate bait nor 
significantly affect other regulated species, this action is not 
expected to jeopardize mortality objectives of any stock and would ease 
some of the burdens on vessels participating in the NE multispecies 

Proposed 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) because, based on the analysis of available 
data, the bycatch of regulated species by vessels targeting skate bait 
in a portion of SNE is less than 5 percent, by weight, of the total 
catch. Therefore, this rule proposes to implement an exempted fishery 
for eligible vessels when using 6.5-inch mesh trawl gear in a portion 
of SNE from July through October of each year. The area of this 
proposed exempted fishery would be referred to as the SNE Skate Bait 
Trawl Exemption Area.
    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 RA upon request):

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

    As required by existing regulations, Vessels participating in the 
exempted skate fishery would 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 allows them 
to land whole skates for use as bait. A participating vessel may 
possess and land up to 20,000 lb (9,072 kg) of whole skates of less 
than 23 inches (59 cm) total length. In addition, vessels would be 
limited by the skate bait 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 would 
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)).
    Granting the SNE Skate Bait Trawl Exemption Area should result in a 
more accurate discard calculation for skate bait and NE multispecies 
DAS trips. Exempted skate bait trips would be exempt from NE 
multispecies regulations. Discards of regulated NE multispecies from 
skate bait trips would no longer be deducted from sector or common pool 
sub-ACLs that make up the commercial groundfish sub-ACL. Instead, the 
calculated discards would be deducted from the ``other subcomponents'' 
    In the NE multispecies fishery, calculated discard rates for 

[[Page 25119]]

species are calculated over an entire discard stratum, i.e., sector, 
area, and gear type. Currently, when SNE skate bait vessels are fishing 
on declared groundfish trips, they are charged a calculated discard 
rate equivalent to trips targeting groundfish in the same discard 
stratum. For example, a skate bait vessel catching 20,000 pounds of 
skate is charged a groundfish discard rate as if that vessel caught 
20,000 pounds of groundfish and results in the resulting amount being 
deducted from the sector or common pool sub-ACL. The data analyzed from 
observed SNE skate bait trips, however, showed that skate bait trips 
averaged a catch of 1.25% of multispecies (250 pounds). Calculating 
discards using this more accurate rate results in a lower deduction 
from the sub-ACL than applying the groundfish discard rate to 20,000 
pounds of catch. Granting this exemption would provide vessels the 
opportunity to catch the groundfish formerly counted as discarded. 
Conversely, because the lower multispecies discards observed on skate 
bait trips will no longer be included when determining the groundfish 
discard rate for targeted groundfish trips, the actual amounts 
discarded on declared groundfish trips will be more accurately 
reflected. The increase in the calculated discard rate for targeted 
groundfish trips is not expected to be significant.


    NMFS has determined that this proposed rule is consistent with the 
FMP and preliminarily determined that the rule is consistent with the 
Magnuson-Stevens Fishery Conservation and Management Act and other 
applicable laws.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Pursuant to 5 U.S.C. 603, an IRFA has been prepared, which 
describes the economic impacts that this proposed rule, if adopted, 
would have on small entities. A description of the reasons why this 
action is being considered, as well as the objectives of and legal 
basis for this proposed rule, can be found in the preamble to this 
proposed rule and are not repeated here. There are no Federal rules 
that duplicate, overlap, or conflict with the proposed rule. This 
proposed rule does not include any new reporting, recordkeeping or 
other compliance requirements. This action proposes to create 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 proposed exemption include exempting a 
larger portion of SNE for a longer period of time, from June through 
November, and a 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 
Proposed 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 2-4 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 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 Proposed Action

    Compared to the No Action alternative, the Preferred Alternative 
(Alternative 1) 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 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 ACE when 
fishing under a groundfish DAS. Thus, the proposed 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 proposed action 
estimates that the exemption could save the fleet approximately $24,490 
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 overall sector's discard 
rate, the increase will not represent a significant cost to the SNE 
sector vessels that are not participating in 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.

Economic Impacts of Alternatives to the Proposed 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 the Preferred Alternative, 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. 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 was no 
observer or ASM data available. Providing an exemption for trips that 
caught over 5 percent groundfish, or areas where no data is available, 
would be contrary to the purpose and requirements of the Magnuson 
Stevens Conservation and Management Act and its implementing 
regulations. For these reasons, this alternative was not selected.
    The No Action Alternative would have a negative economic impact on 
SNE skate bait vessels relative to the preferred alternative. 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 $24,490 a year in discards and DAS alone 
compared to

[[Page 25120]]

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 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.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: April 23, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

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


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

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

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

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 
* * * * *
    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 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...........  71/00'
SBT 2................  41/00'....................  71/00'
SBT 3................  41/00'....................  72/05'
SBT 4................  Southern CT...............  72/05'

    (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.  
    (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. 2012-10121 Filed 4-26-12; 8:45 am]