[Federal Register Volume 66, Number 87 (Friday, May 4, 2001)]
[Rules and Regulations]
[Pages 22473-22477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11160]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 010319071-1103-02; I.D. 030101H]
RIN 0648-AN71


Fisheries of the Northeastern United States; Spiny Dogfish 
Fishery; 2001 Specifications

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

ACTION:  Final rule; final specifications.

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SUMMARY:  NMFS issues final specifications for the 2001 spiny dogfish 
fishery (May 1, 2001, through April 30, 2002). This final rule 
establishes a commercial quota and possession limits for the 2001 
fishing year to address overfishing of the spiny dogfish resource. In 
addition, the current trip limits are modified to be possession limits, 
specified as the maximum amount allowed to be landed within any one 24-
hour period (per-calendar-day possession limit). The intent of this 
action is to comply with implementing regulations for the Fishery 
Management Plan for the Spiny Dogfish Fishery (FMP), which require NMFS 
to impose measures for each upcoming fishing year that will prevent 
overfishing of this fishery.

DATES:  The 2001 annual commercial quota is effective from May 1, 2001, 
to April 30, 2002. The amendments to Secs. 648.14(aa)(7), 
648.230(d)(1), 648.235(a), and 648.235(b) are effective May 1, 2001.

ADDRESSES: Copies of supporting documents used by the Spiny Dogfish 
Monitoring Committee (Monitoring Committee), the Regulatory Impact 
Review (RIR), the Final Regulatory Flexibility Analysis (FRFA) 
contained within the RIR, and the Environmental Assessment (EA) are 
available from the Northeast Regional Office, National Marine Fisheries 
Service, One Blackburn Drive, Gloucester, MA 01930-2298. The EA/RIR/
FRFA is also accessible via the Internet at http:/www.nero.gov/ro/doc/nr.htm.

FOR FURTHER INFORMATION CONTACT: Richard A. Pearson, Fishery Policy 
Analyst, (978)281-9279, fax (978)281-9135, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:  A proposed rule for this action was 
published in the Federal Register on March 30, 2001, (66 FR 17391). The 
comment period closed on April 14, 2001.

Background

    The FMP was developed jointly by the Mid-Atlantic Fishery 
Management Council (MAFMC) and the New England Fishery Management 
Council (NEFMC) (Councils). The implementing regulations for the FMP 
are found at 50 CFR part 648, subpart L.
    Pursuant to 50 CFR 648.230, the Administrator, Northeast Region, 
NMFS (Regional Administrator), imposes measures for each fishing year 
designed to ensure that the target fishing mortality rate (F) for the 
fishing year, as specified in the FMP, is not exceeded. The target F 
for fishing year 2001 and the management measures (i.e., semi-annual 
commercial quota and possession limits) for that year are summarized 
here. Detailed background information regarding the development of the 
specifications for the 2001 spiny dogfish fishing year was provided in 
the preamble to the proposed specifications (66 FR 17391, March 30, 
2001) and is not repeated here.

Annual Commercial Quota

    The FMP specifies a target F of 0.03 for 2001, to be attained 
through a commercial quota and possibly other management measures. This 
final rule establishes a 2001 fishing year commercial quota of 4 
million lb (1.81 million kg), allocated on a semi-annual basis as 
follows: Quota Period 1 (May 1-October 31) is allocated 57.9 percent of 
the 4-million lb (1.81-million kg) quota, or 2,316,000 lb (1,050,512 
kg); Quota Period 2 (November 1-April 30) is allocated 42.1 percent of 
the 4-million lb (1.81-million kg) quota, or 1,684,000 lb (763,849 kg). 
This commercial quota was recommended by the Spiny Dogfish Monitoring 
Committee (Monitoring Committee) to achieve the target F of 0.03, as 
required in the FMP for the 2001 fishing year. Although the Monitoring 
Committee and the Councils also recommended that an additional 500,000 
lb (226,796 kg) be allocated for experimental fishing projects, the FMP 
and its implementing regulations do not contain a provision to allow 
for the allocation of such a set-aside quota for

[[Page 22474]]

experimental fishing projects. It was only through interim action by 
the Secretary of Commerce that such a provision was possible for the 
2000 fishing year. Therefore, an additional quota set-aside for 
experimental fishing projects for 2001 is not contained in this final 
rule.

Possession Limits

    The Councils differed in their possession limit recommendations. 
During the rebuilding period, the objective of the FMP is to rebuild 
the mature female component of the spiny dogfish stock to prevent 
possible recruitment failure. This portion of the stock, which is the 
primary spawning biomass of the stock, has traditionally been targeted 
by the directed spiny dogfish fishery and, consequently, is most in 
need of protection and rebuilding. In order to discourage directed 
fishing for spiny dogfish and to allow dogfish caught incidentally in 
other fisheries to be landed for the entire quota period, the MAFMC 
recommended per-calendar-day possession limits of 600 lb (272 kg) for 
Quota Period 1, and 300 lb (136 kg) for Quota Period 2. The NEFMC, 
however, recommended a per-calendar-day possession limit of 5,000 lb 
(2,268 kg) for both quota periods.
    A possession limit of 5,000 lb (2,268 kg) could facilitate a 
directed fishery for spiny dogfish. NMFS believes that a directed 
fishery is not advisable because that fishery has traditionally 
targeted mature females, due to their larger size and higher value. The 
primary objective of the FMP is to rebuild the mature female component 
of the population. In fact, both the disapproved rebuilding target 
recommended by the Councils and the rebuilding target supported by the 
Spiny Dogfish Technical Committee are based upon attaining a specified 
level of abundance of adult female spiny dogfish. To establish 
possession limits through these specifications at levels that 
facilitate a directed fishery on adult female spiny dogfish would be 
counterproductive. Therefore, this final rule establishes per-calendar-
day possession limits of 600 lb (272 kg) and 300 lb (136 kg) for Quota 
Period 1 and Quota Period 2, respectively, to allow for the retention 
of spiny dogfish caught incidentally in fisheries for other species 
throughout the entire fishing year, and to provide protection for adult 
female spiny dogfish.
    This final rule also changes the current landing limits. The 
landing limits are changed to be the maximum amount of spiny dogfish 
that may be possessed on board and landed in any 1 calendar day. The 
intent of this change is to enhance at-sea enforcement and to prohibit 
multiple landings of spiny dogfish in any 1 day. This change is 
consistent with recent changes in the landing limits for several other 
Mid-Atlantic fisheries (Loligo squid, scup, and black sea bass).

Comments and Responses

    Two comment letters were submitted to NMFS during the comment 
period for the proposed rule. One was submitted on behalf of a 
commercial fishing industry association and the other on behalf of two 
conservation organizations. These letters addressed two main points: 
The level of the commercial quota, and the 500,000-lb (2,268-kg) quota 
set-aside for experimental fisheries.
    NMFS considered all comments received during the comment period in 
making its decision regarding the final specifications and summarizes 
and responds to these comments here.
    Comment 1: One commenter stated that the level of the proposed 
commercial quota was too low because it was based upon a fishing 
mortality rate target (F=0.03) that is intended to achieve what the 
commenter believes to be an inappropriate biomass rebuilding target. 
The commenter stated that the current biomass rebuilding target is 
incorrect and that NMFS has rejected other more flexible alternatives 
proposed by the Councils (167,000 mt in 2000; 180,000 mt in 1999). 
Further, the commenter believes that achievement of the rebuilding 
target in the FMP will ultimately result in a record high total level 
of abundance of spiny dogfish.
    Response: The quota of 4.0 million lb (1.81 million kg) will 
achieve F=0.03 for the 2001 fishing year, as required by the FMP, and 
as recommended by the Monitoring Committee. A higher quota would be 
inconsistent with the FMP's approved rebuilding strategy and, 
therefore, cannot be implemented by NMFS.
    Although the rebuilding strategy contained in the FMP has been 
approved, the FMP does not currently have an approved biomass 
rebuilding target. An adult female biomass rebuilding target of 200,000 
mt (SSBmax) was determined by the Council's Joint Scientific and 
Statistical Committee on January 19, 1999, to be the most appropriate 
value for Bmsy (the biomass that achieves maximum sustainable yield), 
based on current information. The Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act) requires rebuilding of 
overfished stocks to a level that will achieve maximum sustainable 
yield, based upon the best available information. Therefore, NMFS could 
not approve the adult female biomass rebuilding target of 180,000 mt 
that was recommended in the original submission of the FMP by the 
Councils. The Councils must, in the near future, develop an amendment 
to the FMP to establish an acceptable biomass rebuilding target for 
spiny dogfish. Some technical work has been done to advance the 
discussion of this issue. With regard to the commenter's assertion that 
the Agency rejected an adult female biomass rebuilding target of 
167,000 mt, the Council has not submitted such a recommendation to the 
agency. The 167,000-mt biomass rebuilding target was considered by the 
Spiny Dogfish Technical Committee as an adjusted figure that could 
reflect a hypothesized increase in the area covered by the NEFSC survey 
trawl, as described at the March 6, 2000, meeting of the Spiny Dogfish 
Technical Committee. However, the Councils have not yet determined if 
or how they will utilize this information. As a result, no new 
additional alternatives have been recommended for further action.
    NMFS noted in the final rule that implemented the FMP (65 FR 1557, 
January 11, 2000) that it considered fully the concern that a 200,000-
mt adult female biomass rebuilding target would result in a 
historically high total level of abundance of spiny dogfish (see 
Comment 22). In summary, the current spiny dogfish age structure has 
been seriously distorted by the selective removal of mature females by 
the fishery. The management measures in the FMP, including the 
commercial quota, reduce fishing mortality rates to allow the total 
population to return to equilibrium at a lower level of abundance than 
that observed in 1999. The preliminary projections in the FMP indicated 
that the total long-term biomass of a sustainable dogfish fishery would 
be about 416,000 mt, which is lower than the total 1999 biomass of 
515,513 mt.
    Comment 2: One commenter supported a commercial quota of no more 
than 4 million lb (1.81 million kg), but asserted that a 3-million lb 
(1.36 million kg) quota would be more appropriate, given the scientific 
advice and rebuilding strategy outlined in the FMP.
    Response: The quota of 4.0 million lb (1.81 million kg) that NMFS 
is establishing through these final specifications is consistent with 
the objective to achieve F=0.03 for the 2001 fishing year, as required 
by the FMP, and as recommended by the Monitoring Committee. The 
Monitoring Committee initially calculated the yield projection

[[Page 22475]]

at F=0.03 for 2001 to be about 3.5 million lb (1.59 million kg) using a 
mean estimated population size. After considering the uncertainty and 
variability in the population estimates for spiny dogfish that were 
previously described in the interim final rule (65 FR 25887, May 4, 
2000), the Monitoring Committee recommended a commercial quota of 4 
million lb (1.81 million kg).
     Comment 3: One commenter urged NMFS to establish a 500,000-lb 
(2,268-kg) quota set-aside for experimental fishing projects. The 
commenter indicated that a failure to do so would delay the collection 
of additional management and scientific information and delay efforts 
by the fishing industry to devise gear and fishing modifications to 
harvest male spiny dogfish exclusively.
    Another commenter opposed the establishment of a quota set-aside 
for experimental projects. The commenter mentioned that no projects 
were submitted during the 2000 fishing year, so justification for the 
additional allocation this year is lacking. The commenter wrote that 
any quota set-aside should be deducted from the overall 4-million lb 
(1.81 million kg) commercial quota.
    Response: Although no proposals were received in 2000 when the 
provision was included as part of the interim rule, industry members 
have expressed some interest in investigating alternative fishing 
methods for male-only dogfish fisheries. A limited experimental fishery 
was conducted for this purpose in North Carolina state waters. Both 
Councils proposed that NMFS should allow for a set-aside quota for 2001 
and they analyzed the set-aside quota in their submission. However, 
there is currently no provision in the FMP to allow the establishment 
of a set-aside quota. The set-aside quota could be implemented through 
an amendment to the FMP if the Councils decide to pursue this measure.

Changes From the Proposed Rule

    The final rule contains a provision not contained in the proposed 
rule. The final rule revises Sec. 648.230(d)(1) to correct a one-day 
error in the length of the first allocation period to extend it through 
October 31 rather than through October 30.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This action establishes annual quotas and related management 
measures for the spiny dogfish fishery, which are used to control the 
harvest of spiny dogfish and to restrict landings when quotas are 
attained. This action must be taken immediately upon the start of the 
2001 fishing year on May 1, 2001, to conserve this resource. It would 
be impracticable to delay implementation of the quota provisions, 
because doing so would prevent NMFS from carrying out its mandate to 
prevent overfishing of the spiny dogfish resource. Therefore, there is 
good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delayed 
effectiveness period for the implementation of the 2001 spiny dogfish 
quotas and related management measures, including the possession limit 
restrictions, which are needed to enforce effectively the possession 
limits. With respect to the change to Sec. 648.230(d)(1), which merely 
corrects a one-day error in the length of the first allocation period, 
a delay in effective date is unnecessary given that the one-day 
extension occurs six months from May 1.
    NMFS and the MAFMC prepared a FRFA for this action. A copy of the 
FRFA is available from the Regional Administrator (see ADDRESSES). The 
preamble to the proposed specifications included a detailed summary of 
the analyses contained in the IRFA, which is not repeated here. A 
summary of the FRFA focusing upon the impacts of the final measures 
follows:
    A description of the reasons why this action is being taken by the 
agency and the objectives of this final rule are explained in the 
preambles to the proposed rule and this final rule. This action does 
not contain any collection-of-information, reporting, recordkeeping, or 
other compliance requirements. It does not duplicate, overlap, or 
conflict with any other Federal rules. There are no compliance costs 
associated with this final rule.

Public Comments

    There were no comments received in reference to the Initial 
Regulatory Flexibility Analysis (IRFA) description of the expected 
impacts of the proposed regulations on small entities.

Number of Small Entities

    These measures potentially impact a total of 596 vessels that 
reported (based on vessel trip report data) spiny dogfish landings to 
NMFS in 1999. However, any of the 2,759 vessels that obtained Federal 
spiny dogfish permits could potentially be affected by the proposed 
measures. Data for individual vessels were not available from the 2000 
fishing year at the time of analysis.

Minimizing Significant Economic Impact on Small Entities

    In the IRFA, NMFS analyzed three alternatives. The MAFMC 
alternative (Alternative 1) included a commercial quota of 4 million lb 
(1,814 mt); possession limits of 600 lb (272 kg) during Quota Period 1 
and 300 lb (136 kg) during Quota Period 2; and a 500,000-lb (2,268-kg) 
experimental fishery quota. The NEFMC alternative (Alternative 2) 
included a commercial quota of 4 million lb (1,814 mt); a possession 
limit of 5,000 lb (2,268 kg) for both quota periods; and a 500,000-lb 
(2,268-kg) experimental quota. Alternative 3 was no management action.
    In this final rule, NMFS is implementing Alternative 1, without the 
500,000-lb (2,268-kg) experimental quota set-aside. This final rule 
also modifies the trip limits to be possession limits, with the 
additional provision that these levels are the maximum amount that may 
be landed in any single calendar day. Although the spiny dogfish quota 
set-aside of 500,000 lb (2,268 kg) for experimental fisheries was 
analyzed under the three alternatives in the IRFA by the Councils, 
there is no authority under the FMP to make such an allocation.
    The modification of the trip limits to possession limits and the 
requirement that these levels be set at the maximum amount that may be 
landed in 1 calendar day will enhance at-sea enforcement by prohibiting 
possession of spiny dogfish on board a vessel in excess of the 
specified levels, rather than simply prohibiting landings in excess of 
the specified levels. Prohibiting multiple landings of spiny dogfish in 
1 day will prevent vessels from landing excessive amounts when spiny 
dogfish are in nearshore areas. These changes are necessary to adhere 
to the original intent of the trip limits and to ensure that the 
conservation objectives of the management measures are not compromised. 
They are not expected to result in any significant economic impacts or 
differential impacts on small entities. Such measures should provide 
fair and equal access of vessels to the spiny dogfish quota.
    The measures implemented by this final rule are intended to 
minimize economic impacts on small entities while achieving the 
conservation goals and objectives of the FMP and the Magnuson-Stevens 
Act. The potential change in overall revenues under the 4-million lb 
(1,814-mt) quota was evaluated relative to landings and revenues 
derived during the 2000

[[Page 22476]]

fishing year (6.7 million lb (3,039 mt) of landings, valued at $1,072 
million). The analysis assumed that the revenues of the 596 vessels 
that landed spiny dogfish in 1999 would be reduced proportionately by 
the measures to be implemented by this final rule for the 2001 fishing 
year. The reduction in overall gross revenues to vessels was estimated 
to be about $432,000, or about $725 per vessel, compared to the 2000 
fishing year. Of the 596 vessels, 36 would be expected to experience a 
reduction in total gross revenues (all species combined) of more than 5 
percent as a result of the 2.7-million lb (1,224-mt) reduction from 
actual 2000 fishing year landings. This represents 6 percent of the 
vessels that landed spiny dogfish in 1999. The remaining 560 vessels 
would be expected to experience a reduction in total gross revenues of 
less than 5 percent. Although revenues would increase in the short-term 
without a commercial quota (status-quo, no-action alternative) as 
compared to year 2000 spiny dogfish landings, long-term revenues from 
an unregulated fishery would continuously decline as the stock size is 
further reduced, due to continued overfishing.
    Under the possession limits implemented through this final rule, it 
is projected that landings in Quota Period 1 may reach the semi-annual 
quota allocation (2,316,000 lb (1,050 mt)) before the close of Quota 
Period 1 on about July 24, 2001 (128 days into the quota period) and 
that landings during Quota Period 2 would not achieve the full semi-
annual quota allocation (1,684,000 lb (764 mt)) by the end of Quota 
Period 2 on April 30, 2002. Therefore, landings for the entire 2001 
fishing year are projected to reach only 2,930,663 lb (1,329 mt) of the 
entire 4-million lb (1,814-mt) annual quota. This translates to a 
reduction in spiny dogfish trips of 21 percent for Quota Period 1 and 
no reduction in the amount of trips for Quota Period 2. The analysis 
assumed that trips would be eliminated to the extent that the 
possession limits on spiny dogfish make those trips unprofitable. 
However, the analysis did not account for behavioral changes by vessel 
operators, which could impact the amount of landings. These changes 
could not be analyzed. Also, since vessels without Federal permits 
(i.e., state-permitted vessels) are not captured in the analysis, 
additional landings are likely to occur.
    The possession limits implemented by this final rule were 
preferable to the status quo alternative (no possession limits) and the 
possession limit recommendation under Alternative 2 (5,000 lb (2,268 
kg) for both quota periods) because they achieve conservation benefits 
consistent with the objectives of the FMP and with the Magnuson-Stevens 
Act, and provide economic relief to small entities by allowing landings 
of incidentally caught spiny dogfish for the entire fishing year, 
thereby possibly reducing discards. The other two alternatives did not 
achieve the conservation objectives of the FMP and the Magnuson-Stevens 
Act, or, in the case of Alternative 2, would encourage a short, derby-
style fishery lasting approximately 41 days per quota period, after 
which all landings of spiny dogfish would be prohibited.
    The impact of the final specifications for the 2001 fishing year 
will be greatest in Massachusetts, North Carolina, Maryland, Maine, and 
New Jersey, which accounted cumulatively for 90 percent of spiny 
dogfish landings from 1988 through 1997. The communities of 
Wachapreague, VA, Plymouth, MA, and Scituate, MA, have benefitted from 
dogfish landings that made up 76 percent, 74 percent, and 21 percent, 
respectively, of the value of all landed fish, based on 1997 NMFS 
landings data. Because these communities have recently derived a 
relatively high percentage of their fishing income from spiny dogfish, 
they will be most impacted by the commercial quota and possession 
limits in the final specifications. These impacts were also experienced 
in the 2000 fishing year. Two of these communities, Plymouth and 
Scituate, MA, are suburban areas of a large city (Boston) and are 
substantially engaged in the businesses of the metropolitan area. The 
other community, Wachapreague, VA, has significant fishing activities, 
but also attracts retirees and tourism, and is substantially dependent 
on these two sectors for economic activity. The analysis also concludes 
that small vessels (25 to 49 ft (7.6 to 14.9 m)) constitute 91 percent 
of affected vessels (those vessels experiencing a reduction in revenues 
of greater than 5 percent) under a 4-million lb (1,814-mt) commercial 
quota. However, if no action is taken, communities benefitting from 
dogfish landings would experience greater lost revenues in the long 
term due to stock collapse as a result of allowing a directed fishery 
in the short term.
    A formal section 7 consultation under the Endangered Species Act 
(ESA) was reinitiated for the FMP by NMFS on May 4, 2000, as a result 
of recent entanglements of endangered and threatened marine mammals and 
sea turtles to determine whether this fishery jeopardizes ESA-listed 
species. In a biological opinion dated August 13, 1999, the Assistant 
Administrator for Fisheries, NOAA, determined that fishing activities 
conducted under the FMP and its implementing regulations may adversely 
affect but are not likely to jeopardize the continued existence of any 
endangered or threatened species under the jurisdiction of NMFS or 
result in the destruction or adverse modification of right whale 
critical habitat. For endangered whales, this conclusion assumed the 
Atlantic Large Whale Take Reduction Plan, as implemented, would be 
effective at reducing incidental mortality and serious injury of the 
whales to insignificant levels approaching zero mortality and serious 
injury rate.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: April 30, 2001.
John Oliver,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

    2. In Sec. 648.14, paragraph (aa)(7) is added to read as follows:


Sec. 648.14  Prohibitions.

* * * * *
    (aa) * * *
    (7) Possess more than the possessi/on limit of spiny dogfish 
specified under Sec. 648.235. The possession limit is the maximum 
amount that may be landed in any 1 calendar day.
* * * * *

    3. In Sec. 648.230, paragraph (d)(1) is revised to read as follows:


Sec. 648.230   Catch quotas and other restrictions.

* * * * *
    (d) * * *
    (1) The annual quota specified according to the process outlined in 
paragraph (a) of this section shall be allocated between two semi-
annual quota periods as follows: May 1 through October 31 (57.9 
percent) and November 1 through April 30 (42.1 percent).
* * * * *

    4. Section 648.235 is added to read as follows:

[[Page 22477]]

Sec. 648.235   Possession and landing restrictions.

    (a) Quota Period 1. From May through October 31, vessels issued a 
valid Federal spiny dogfish permit specified under Sec. 648.4(a)(11) 
may:
    (1) Possess up to 600 lb (272 kg) of spiny dogfish per trip; and
     (2) Land only one trip of spiny dogfish per calendar day.
    (b) Quota Period 2. From November 1 through April 30, vessels 
issued a valid Federal spiny dogfish permit specified under 
Sec. 648.4(a)(11) may:
    (1) Possess up to 300 lb (136 kg) of spiny dogfish per trip; and
    (2) Land only one trip of spiny dogfish per calendar day.
[FR Doc. 01-11160 Filed 4-30-01; 4:55 pm]
BILLING CODE 3510-22-S