[Federal Register Volume 77, Number 82 (Friday, April 27, 2012)]
[Rules and Regulations]
[Pages 25097-25100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-10240]



National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120208116-2416-03]
RIN 0648-BB83

Fisheries of the Northeastern United States; 2012-2013 Northeast 
Skate Complex Fishery Specifications

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

ACTION: Final rule.


SUMMARY: This rule implements catch limits and associated measures for 
the Northeast skate complex fishery for the 2012-2013 fishing years. 
The action was developed by the New England Fishery Management Council 
pursuant to the provisions of the Northeast Skate Complex Fishery 
Management Plan. The catch limits are supported by the best available 
scientific information and reflect recent increases in skate biomass.

DATES: This rule is effective May 1, 2012.

ADDRESSES: An environmental assessment (EA) was prepared that describes 
the action and other considered alternatives, and provides a thorough 
analysis of the impacts of the proposed measures and alternatives. 
Copies of the EA and the Initial Regulatory Flexibility Analysis 
(IRFA), are available on request from Paul J. Howard, Executive 
Director, New England Fishery Management Council, 50 Water Street, 
Newburyport, MA 01950. These documents are also available online at 

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


[[Page 25098]]


    The New England Fishery Management Council (Council) is responsible 
for developing management measures for skate fisheries in the 
northeastern U.S. through the Northeast Skate Complex Fishery 
Management Plan (Skate FMP). Seven skate species are managed under the 
Skate FMP: Winter, little, thorny, barndoor, smooth, clearnose, and 
rosette. The Council's Scientific and Statistical Committee reviews the 
best available information on the status of skate populations and makes 
recommendations on acceptable biological catch (ABC) for the skate 
complex (all seven species). This recommendation is then used as the 
basis for catch limits and other management measures for the skate 
    A detailed description of how the 2012-2013 skate ABC and 
associated specification measures were derived is provided in the 
proposed rule for this action (February 22, 2012, 77 FR 10463), and in 
its supplementary materials (see ADDRESSES). The final approved 
specifications for the 2012-2013 skate fishery are described below, and 
are mostly consistent with the measures implemented by Secretarial 
emergency action during the 2011 fishing year (October 28, 2011, 76 FR 
66856), except as noted.

Final Measures

    NMFS is implementing the following specifications for the skate 
fishery for the 2012-2013 fishing years:
    1. Skate ABC and annual catch limit (ACL) of 50,435 mt;
    2. Annual catch target (ACT) of 37,826 mt;
    3. Total allowable landings (TAL) of 21,561 mt (the skate wing 
fishery is allocated 66.5 percent of the TAL (14,338 mt) and the skate 
bait fishery is allocated 33.5 percent of the TAL (7,223 mt, divided 
into three seasons according to the regulations at Sec.  648.322));
    4. The skate bait possession limit is increased from 20,000 lb 
(9,072 kg) to 25,000 lb (11,340 kg) whole weight per trip for vessels 
carrying a valid Skate Bait Letter of Authorization; and,
    5. The skate wing possession limits will remain at status quo 
levels, as defined in Sec.  648.322(b): 2,600 lb (1,179 kg) wing weight 
per trip for Season I (May 1 through August 31), and 4,100 lb (1,860 
kg) wing weight per trip for Season II (September 1 through April 30) 
for vessels fishing on a Northeast Multispecies, Monkfish, or Scallop 
Day-at-Sea. The Northeast Multispecies Category-B Day-at-Sea possession 
limit remains at 220 lb (100 kg) wing weight per trip, and the non-Day-
at-Sea incidental possession limit remains at 500 lb (227 kg) wing 
weight per trip.
    The proposed rule included reductions to the skate wing possession 
limits, as recommended by the Council, in an effort to prolong the 
fishing season and avoid implementation of the incidental skate wing 
possession limit before the end of the fishing year (i.e., closure of 
the directed skate wing fishery). The possession limit analysis used by 
the Council was based on skate landing rates in 2010 and early 2011 
when landing rates were particularly high. However, landing rates 
slowed during 2011, and as of March 31, 2012, the wing fishery only 
landed 77 percent of its TAL, and is not projected to land its entire 
TAL before the end of the fishing year. Upon the reasonable assumption 
that landing rates in 2012 and 2013 will be similar to this year's, 
implementing the reduced possession limits recommended by the Council 
may prevent the TAL from being harvested. Therefore, there is no 
justification to reduce the skate wing possession limits for the 2012-
2013 fishing years, and the proposed reduction is disapproved. The 
skate wing possession limits will remain at status quo levels.
    For the reasons described in the proposed rule and environmental 
assessment for this action (see ADDRESSES), this final rule implements 
updates to stock status determination criteria for skates that reflect 
the most recent scientific information. These updates include 
refinement of the survey strata used for determining the stock status 
of each skate species, and adjusts the overfishing definition for 
clearnose skate. Overfishing would be deemed to be occurring if the 3-
year moving average trawl survey biomass of clearnose skate declines by 
40 percent or more.
    Additionally, this final rule implements the requirement that skate 
bait transfers at sea, as recorded on vessel trip reports, be counted 
against the skate bait fishery quotas. Recent analysis indicated that 
bait transfers at sea, on average, represented approximately 18 percent 
of total skate landings, and need to be considered when monitoring 
    Finally, in order to be consistent with the requirements of 
Amendment 3, this final rule removes a reference to Northeast 
multispecies sectors in the skate wing possession limit regulations 
found at Sec.  648.322(b). The skate wing possession limits were not 
intended to apply to sector vessels, and this reference should have 
been removed from the Amendment 3 final rule (June 16, 2010, 75 FR 

Comments and Responses

    On February 22, 2012, NMFS published a proposed rule soliciting 
public comment on the proposed skate fishery specifications, and 
accepted comments through March 23, 2012. NMFS received seven comments 
on the proposed rule. This section summarizes the principal comments 
contained in the comment letters, and NMFS's response to those 
    Comment 1: Four commercial fishing groups and the Massachusetts 
Division of Marine Fisheries were supportive of the proposed TALs, but 
were opposed to reducing the skate wing possession limits.
    Response: NMFS agrees that the TALs reflect the best available 
science and are consistent with the requirements of the Skate FMP. NMFS 
also agrees that the skate wing possession limits do not need to be 
reduced as more fully discussed above in the preamble. Therefore, this 
final rule maintains the status quo possession limits for the skate 
wing fishery through the 2013 fishing year.
    Comment 2: Three of the commercial fishing groups commented that 
the prohibition on possession of barndoor skate should be removed, and 
an incidental possession limit of barndoor skate wings should be 
    Response: The issue of barndoor skate possession is beyond the 
scope of these specifications, and was not part of the proposed rule. 
Therefore, this issue cannot be added to this final rule. To date, the 
Council has rejected measures to allow possession of this species, 
which is no longer overfished, but not yet rebuilt to its target 
population size. The Council may reconsider species prohibitions in 
future actions.
    Comment 3: One commenter was generally critical of NMFS and opposed 
to the proposed catch limits. The commenter suggested that skate stock 
status was inaccurate, and skate quotas should be reduced by 50 
    Response: No justification was offered by the commenter to indicate 
that the proposed specifications were based on inaccurate science. 
Justification for reducing the skate quotas by 50 percent was also not 
provided. These specifications are based upon the best available 
scientific information, as required by the Magnuson-Stevens Act. Skate 
stock status determinations were developed following stock assessments 
conducted by the Northeast Fisheries Science Center and rigorously 
peer-reviewed by external fishery scientists. The skate ABC was 
recommended by

[[Page 25099]]

the Council's Scientific and Statistical Committee, and was based upon 
precautionary catch levels designed to promote biomass increases in all 
skates. Therefore, the commenter's assertions are unfounded, and NMFS 
disagrees that quotas should be reduced.
    Comment 4: One commenter was opposed to the proposed catch limits 
due to concerns of the impacts on thorny skate, a prohibited species 
that is currently overfished. The commenter argued that these 
specifications would promote illegal landings of thorny skate, increase 
discards, and ultimately hinder the rebuilding of this stock. The 
commenter was particularly critical of NMFS's lack of documented 
enforcement actions against vessels that may have illegally landed 
thorny skates. The commenter argued that vessels should be required to 
report all skate landings by species, skates should only be landed in 
whole form to improve dockside species identification and enforcement, 
and additional measures should be implemented to help rebuild thorny 
skates (e.g., time/area closures in essential thorny skate habitats).
    Response: In response to similar comments received on the 2011 
emergency action (October 28, 2011, 76 FR 66856), NMFS disagrees that 
these specifications would have significant negative impacts on thorny 
skates. NMFS acknowledges the overfished condition and vulnerability of 
thorny skates, but the skate ABC recommended by the Council was 
specified at a level that should help promote long-term biomass 
increases in this stock (which needs to be rebuilt by 2028). Fishing 
effort in the skate fishery is not greatly affected by skate catch 
limits, as the vast majority of vessels that land skates catch them 
incidentally to trips targeting groundfish or monkfish. Effort in these 
fisheries has declined in recent years, and may decline further in 
coming years. Discards of all skates have declined in recent years. 
Therefore, increasing skate catch limits is not expected to promote 
more fishing effort for, or discards of, thorny skates.
    The lack of documented enforcement actions citing illegal 
possession of thorny skates is not reflective of a total lack of 
enforcement of this prohibition. As described in NMFS's negative 90-day 
finding on a petition to list thorny skate as endangered under the 
Endangered Species Act (December 20, 2011, 76 FR 78891), between 2007 
and 2010, thorny skate wings were found in less than 1 percent of 
sampled skate wing landings. Therefore, there is no basis for 
concluding that enforcement of this provision is inadequate, and NMFS 
has ongoing education and outreach efforts in the skate fishery to 
improve prohibited species compliance (e.g., http://www.nero.noaa.gov/sfd/sfdskate.html). If prohibited species regulations were not being 
adequately enforced, port sampling would reveal more frequent landings 
of thorny skate wings. NMFS agrees that landing skates in whole form 
would improve monitoring of species-specific landings, and help further 
enforce species prohibitions. However, the Council has rejected such 
requirements for the skate fishery to date. In addition to closed areas 
and other measures, the Council may reconsider such measures to help 
rebuild thorny skate in future actions.

Changes From the Proposed Rule

    In Sec.  648.322(b)(1), the proposed change to the skate wing 
possession limits are not included in this final rule due to the 
disapproval of this proposed measure.


    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has made a determination that this rule is 
consistent with the Skate FMP, other provisions of the Magnuson-Stevens 
Act, and other applicable law.
    The Office of Management and Budget has determined that this rule 
is not significant for the purposes of Executive Order 12866.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
to waive the requirement for a 30-day delay in effectiveness under the 
provisions of section 553(d) of the Administrative Procedure Act. This 
action would result in a benefit of additional revenues associated with 
a skate bait possession limit that is 25 percent higher, and provides 
more opportunity for skate bait vessels to harvest their full 
allocation of quota. This rule increases the possession limit for skate 
bait and, consequently, extends fishing opportunity for fishermen that 
would otherwise be constrained under the current possession limits, 
which are unnecessarily restrictive. If this rulemaking was delayed to 
allow for a 30-day delay in effectiveness, the fishery would likely 
forego some amount of landings and revenues during the delay period. 
While these restrictions would be alleviated after this rule becomes 
effective, fishermen may be not able to recoup the lost economic 
opportunity of foregone landings of skate bait that would result from a 
delay in the effectiveness of this action. For these reasons, the AA 
finds good cause to waive the 30-day delay and to implement this rule 
on May 1, 2012.
    Pursuant to section 604 of the Regulatory Flexibility Act (RFA), 
NMFS has prepared a Final Regulatory Flexibility Analysis (FRFA) in 
support of this action. The FRFA incorporates the IRFA, a summary of 
the significant issues raised by the public comments in response to the 
IRFA, NMFS's responses to those comments, relevant analyses contained 
in the action and its EA, and a summary of the analyses completed to 
support the action in this rule. A copy of the analyses done in the 
action and EA are available from the Council (see ADDRESSES). A summary 
of the IRFA was published in the proposed rule for this action and is 
not repeated here. A description of why this action was considered, the 
objectives of, and the legal basis for this rule is contained in the 
preamble to the proposed rule and this final rule and is not repeated 

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 

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

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

    These final specifications will impact vessels that hold Federal 
open access commercial skate permits that participate in the skate 
fishery. According to the Framework 1 final rule and its Final 
Regulatory Flexibility Analysis (76 FR 28328, May 17, 2011), as of 
December 31, 2010, the maximum number of small fishing entities (as 
defined by the SBA) that may be affected by this action is 2,607 
entities (number of skate permit holders). However, during fishing year 
2010, only 601 vessels landed any amount of skate.

Description of Projected Reporting, Recordkeeping, and Other Compliance 

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

[[Page 25100]]

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

    The purpose of this action is to specify catch limits and other 
management measures that reflect the best available scientific 
information and the requirements of the Skate FMP. The Council 
considered one ACL alternative (no action) to the preferred alternative 
being implemented. The preferred ACL and TALs are expected to extend 
the duration of the fishing season relative to the no action 
alternative, and help to prevent the negative economic impacts that 
would be associated with an early closure of the directed skate 
fisheries. Under the no action alternative, the skate catch limit would 
remain at 41,080 mt. This alternative was not selected because it does 
not represent the best available scientific information, and would 
likely result in negative economic impacts as compared to the preferred 
alternative. Compared to the other alternative considered, this action 
is expected to better maximize profitability for the skate fishery by 
allowing higher levels of landings for the duration of the 2012 and 
2013 fishing years while still being consistent with requirements of 
the Magnuson-Stevens Act and other applicable law. Therefore, the 
economic impacts resulting from this action as compared to the no 
action alternative are positive, since the action would provide 
additional fishing opportunity for vessels participating in the skate 
fishery for the 2012-2013 fishing years.
    The action is almost certain to result in greater revenue from 
skate landings. Based on recent landing information, the skate fishery 
is able to land close to the full amount of skates allowable under the 
quotas. The estimated potential revenue from the sale of skates under 
the revised catch limits is approximately $9.0 million, compared to 
$5.8 million if this action were not implemented. Due to the 
implications of closing the directed skate fisheries early in the 
fishing year, the higher catch limits associated with this action will 
result in additional revenue if fishing is prolonged. According to 
analyses in Framework 1, vessels that participate in the skate fishery 
derive most (an average of 96 percent) of their revenues from other 
fisheries (e.g., groundfish, monkfish). Therefore, relative to total 
fishing revenues, catch limits of other species would be expected to 
have more significant economic impacts than revenues derived from 
skates alone. However, as skate prices have begun increasing in recent 
years, more vessels are deriving a greater proportion of their income 
from skates.
    The final possession limits in the skate wing and bait fisheries 
are also expected to result in positive economic impacts compared to 
the other alternatives considered. The reduced skate wing possession 
limits described in the proposed rule would have slightly reduced trip 
level revenues of skates. Maintaining the status quo skate wing 
possession limits, as implemented in this final rule, will help 
maintain consistent trip level revenues for skate wings, as well as 
allow the fishery to operate throughout the fishing year without 
closures. The increased skate bait possession limit implemented by this 
final rule is also expected to increase trip level revenue for bait 
skates, and may help the bait fishery land more of its allocated TAL in 
2012 and 2013.

Small Entity Compliance Guide

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

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: April 24, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

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


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

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

2. In Sec.  648.322, revise paragraph (b) introductory text and 
paragraph (c)(4) to read as follows:

Sec.  648.322  Skate allocation, possession, and landing provisions.

* * * * *
    (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, and fishes under an Atlantic sea scallop, NE multispecies, 
or monkfish DAS as specified at Sec. Sec.  648.53, 648.82, and 648.92, 
respectively, 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:
* * * * *
    (c) * * *
    (4) The vessel owner or operator possesses or lands no more than 
25,000 lb (11,340 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.
* * * * *

[FR Doc. 2012-10240 Filed 4-26-12; 8:45 am]