[Federal Register Volume 70, Number 84 (Tuesday, May 3, 2005)]
[Rules and Regulations]
[Pages 22806-22807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8815]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 050302053-5112-02; I.D. 022805C]
RIN 0648-AS24


Fisheries of the Northeastern United States; Spiny Dogfish 
Fishery

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

ACTION: Final rule, 2005 specifications.

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SUMMARY: NMFS announces final specifications for the 2005 fishing year, 
which is May 1, 2005, through April 30, 2006.

DATES: Effective June 2, 2005, through April 30, 2006.

ADDRESSES: Copies of supporting documents used by the Joint Spiny 
Dogfish Committee and the Spiny Dogfish Monitoring Committee 
(Monitoring Committee); the Environmental Assessment, Regulatory Impact 
Review, Initial Regulatory Flexibility Analysis (EA/RIR/IRFA); and the 
Essential Fish Habitat Assessment (EFHA) are available from Daniel 
Furlong, Executive Director, Mid-Atlantic Fishery Management Council 
(MAFMC), Federal Building, Room 2115, 300 South Street, Dover, DE 
19904. The EA, RIR, IRFA and EFHA are accessible via the Internet at 
http:/www.nero.gov.

FOR FURTHER INFORMATION CONTACT: Eric Jay Dolin, Fishery Policy 
Analyst, (978)281-9259, fax (978)281-9135.

SUPPLEMENTARY INFORMATION:

Background

    A proposed rule for this action was published in the Federal 
Register on March 11, 2005 (70 FR 12168), with public comment accepted 
through March 28, 2005. The final specifications are unchanged from 
those that were proposed. A complete discussion of the development of 
the specifications appears in the preamble to the proposed rule and is 
not repeated here.

2005 Specifications

    The commercial spiny dogfish quota for the 2005 fishing year is 4 
million lb (1.81 million kg), to be divided into two semi-annual 
periods as follows: 2,316,000 lb (1.05 million kg) for quota period 1 
(May 1, 2005 - Oct. 31, 2005); and 1,684,000 lb (763,849 kg) for quota 
period 2 (Nov. 1, 2005 - April 30, 2006). The possession limits are 600 
lb (272 kg) for quota period 1, and 300 lb (136 kg) for quota period 2, 
to discourage a directed fishery.

Comments and Responses

    There were 73 comments submitted on the proposed measures, by 71 
individuals, a fishing company, and a non-governmental organization.
    Comment 1: Two commenters supported the proposed rule and 
encouraged NMFS to continue rebuilding the spiny dogfish stock.
    Response: NMFS is implementing measures that will continue the 
rebuilding of the spiny dogfish stock.
    Comment 2: Two commenters wanted NMFS to implement a male-only and 
subadult female fishery for dogfish, contending that optimum yield can 
be achieved and bycatch reduced by such measures. The commenters 
claimed that, with a 1,500-lb (680-kg) possession limit, such a fishery 
would not compromise the rebuilding of the stock.
    Response: The MAFMC recommended that a 1,500-lb (680-kg) male-only 
possession limit should be established to allow for a limited directed 
fishery. NMFS determined that a directed fishery is inappropriate in 
light of the overfished condition of the spiny dogfish stock, even with 
a prohibition on possession of female dogfish. The MAFMC's staff 
analysis of the MAFMC recommendation noted that, if a directed fishery 
for male dogfish developed, it could require the discard of female 
dogfish, and may increase the associated discard mortality of these 
animals. The MAFMC staff analysis expressed concern that this may have 
a negative impact on the rebuilding program as it could increase the 
mortality of mature females. The measure recommended by the commenters 
would allow the possession of up to 1,500 lb (680 kg) of males or 
subadult females. NMFS notes that a directed fishery for subadult 
females would be inconsistent with the rebuilding program, as it is 
necessary to allow those animals to reach maturity so that they can 
spawn and contribute to stock rebuilding.
    NMFS also notes that the Atlantic States Marine Fisheries 
Commission's Interstate Fishery Management Plan requires the states to 
establish possession limits of 600 lb (272 kg) in quota period 1, and 
300 lb (136 kg) in quota period 2. As a result, it would not be 
possible for a vessel operator to land 1,500 lb (680 kg) of dogfish in 
any state.
    Comment 3: One commenter suggested that all quotas should be cut by 
50 percent this year and by 10 percent each succeeding year, but 
provided no basis for these recommendations.
    Response: The commercial quota established by this action is based 
on extensive analyses conducted by the MAFMC and reviewed by NMFS, and 
is based on the best available scientific information. There is no 
information to support the reductions suggested by the commenter.
    Comment 4: Sixty-five commenters stated that there were too many 
dogfish in the ocean. Most of them requested that NMFS implement no 
management measures and, therefore, allow an unlimited directed 
fishery. Most of the commenters felt that NMFS should not be worrying 
about dogfish because they prey on other more valuable commercial fish 
species and, by virtue of their great numbers, make it difficult for 
commercial and recreational fishermen to catch the fish they are 
targeting. Some commenters stated that the science on dogfish is faulty 
and that dogfish are not overfished.
    Response: Dogfish are overfished and, as such, the Magnuson-Stevens 
Fishery Conservation Management Act (MSFCMA) requires the development 
of a management program to rebuild the stock. The 
overfished determination for dogfish is 
restricted to adult females. Reproduction of dogfish, and ultimately 
the future fishery, is closely tied to the abundance of reproductive 
females. In the 1990's, the spiny dogfish population biomass was at a 
historic high. The rapid expansion of commercial harvest, however, 
quickly depleted the number of mature females in the stock. The Spiny 
Dogfish Fishery Management Plan (FMP) was implemented in 2000, and 
established a rebuilding program intended to protect mature female 
spiny dogfish so that stock rebuilding could be achieved as quickly as 
practicable. However, complementary measures were not implemented in 
state waters until May 2004, and this, as well as delays in the 
implementation of the FMP, has delayed stock rebuilding. Recent 
population projections by the NMFS Northeast Fisheries Science Center 
(NEFSC), which factor in U.S. commercial harvest and stock removals 
from all other sources (U.S. commercial discards, Canadian commercial 
fishery landings, U.S. recreational discards and landings) suggest a 
time span of 15 to 20 years before the stock will have fully recovered.
    The most recent peer-reviewed evaluation of the status of the 
Northwest Atlantic spiny dogfish stock was conducted at the 37th 
Northeast Regional Stock Assessment Workshop (SAW) in 2003. The mature 
female component of the stock (spawning stock

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biomass (SSB)) had declined from the historic high in 1990 of roughly 
500 million lb (226,796 mt) to about 115 million lb (52,163 mt) in 2003 
(29 percent of the recommended biomass target of 400 million lb 
(181,437 mt). The low level of SSB was expected to result in low 
recruitment for the next several years, and recruitment estimates from 
1997 to 2003 were observed to represent the seven lowest values in the 
entire time series. The fishing mortality rate (F) in 2002 was 
estimated to be about 0.09. The 37th SAW recommended that total 
removals (landings, discards, Canadian catch) be constrained below 
levels consistent with F=0.03 (Frebuild).
    The commenters noted that they encounter dogfish in large numbers, 
and stated that the overall population remains relatively high. 
However, recent data support the trends found by the 37th SAW. Due to 
high inter-year variability in the NEFSC spring survey's catches of 
spiny dogfish, current assessment methods use smoothed estimates of 
biomass to characterize population trends. According to the latest 
(2004) spring survey values, the 3-year moving average of total stock 
biomass decreased from 916 million lb (415,533 mt) in 2001-2003, to 857 
million lb (388,767 mt) in 2002-2004. Mature female biomass decreased 
from 144 million lb (65,466 mt) in 2001-2003, to 132 million lb (60,033 
mt) in 2002-2004. Pup abundance, however, increased from 338 thousand 
lb (153 mt) in 2001-2003 to 1.440 million lb (653 mt) in 2002-2004. 
While this increase in pup adundance is encouraging, there is still a 
long way to go before the stock is rebuilt.
    As for the concern about dogfish preying on commercially important 
species, NMFS notes that dogfish prey on a wide range of species, not 
just those that are commercially fished. Analyses of over 40,000 
stomach samples over several decades reveals high percentages of forage 
species, especially herring and mackerel, and a variety of 
invertebrates. Commercially important species such as gadoids (cod, 
haddock, pollock) and flatfish do not exceed 10 percent of the total 
diet. Invertebrates, notably comb jellies and squid, make up about 50 
percent of the diet of spiny dogfish in NMFS autumn samples. Several 
recent scientific papers have documented the low occurrence of 
commercially important finfish in dogfish diets.

Classification

    Included in this final rule is the FRFA prepared pursuant to 5 
U.S.C. 604(a). The FRFA incorporates the discussion that follows, the 
comments and responses to the proposed rule, and the initial regulatory 
flexibility analysis (IRFA) and other analyses completed in support of 
this action. A copy of the IRFA is available from the Regional 
Administrator (see ADDRESSES).

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the reasons why this action is being considered, 
and the objectives of and legal basis for this action, is contained in 
the preamble to the proposed rule and is not repeated here.

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

    All of the potentially affected businesses are considered small 
entities under the standards described in NMFS guidelines because they 
have gross receipts that do not exceed $3.5 million annually. 
Information from the 2003 fishing year was used to evaluate impacts of 
this action, as that is the most recent year for which data are 
complete. According to unpublished NMFS permit file data, 3,025 vessels 
possessed Federal spiny dogfish permits in 2003, while 94 of these 
vessels contributed to overall landings.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This action does not contain any new collection-of-information, 
reporting, recordkeeping, or other compliance requirements. It does not 
duplicate, overlap, or conflict with any other Federal rules.

Minimizing Significant Economic Impacts on Small Entities

    Impacts were assessed by the MAFMC, the New England Fisheries 
Management Council (NEFMC), and NMFS for two sets of measures that were 
evaluated as alternatives to the measures enacted by this rule. The 
first alternative would have set the commercial quota at the same level 
as this rule, but would have established different possession limits 
for vessels landing dogfish. It would not increase the overall landings 
of spiny dogfish and, therefore, would not minimize economic impacts on 
the small entities participating in the fishery.
    The second alternative would have eliminated the commercial quota 
and possession limits, and was projected to result in landings of about 
25 million lb (11.3 million kg), the level observed in the unregulated 
period of the fishery. This would constitute a 525-percent increase in 
landings compared to the status quo quota of 4.0 million lb (1.81 
million kg), and a 696-percent increase in landings compared to actual 
2003 landings of 3.14 million lb (1.42 million kg). Although the short-
term social and economic benefits of an unregulated fishery would be 
positive because of the revenue generated for the fishery participants, 
this unregulated harvest would be inconsistent with the requirements of 
the FMP and the MSFCMA, and would lead to depletion of the spiny 
dogfish population. Therefore, this alternative was rejected by the 
MAFMC, the NEFMC, and NMFS.

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 small entity compliance 
guide will be sent to all holders of permits issued for the spiny 
dogfish. In addition, copies of this final rule and guide (i.e., permit 
holder letter) are available from the Regional Administrator (see 
ADDRESSES) and may be found at the following web site: http://www.nmfs.gov/ro/doc/nero.html.

    Dated: April 28, 2005.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 05-8815 Filed 5-2-05; 8:45 am]
BILLING CODE 3510-22-S