[Federal Register Volume 71, Number 136 (Monday, July 17, 2006)]
[Rules and Regulations]
[Pages 40436-40439]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-11134]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 060418103-6181-02; I.D. 040706F]
RIN 0648-AT59


Fisheries of the Northeastern United States; Final 2006-2008 
Specifications for the Spiny Dogfish Fishery

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

ACTION: Final rule.

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SUMMARY: NMFS announces final specifications for the 2006-2008 fishing 
years, which is May 1, 2006, through April 30, 2009. NMFS is also 
establishing possession limits for dogfish at 600 lb (272 kg) for both 
quota periods 1 and 2 of the fishery.

DATES: The regulatory change at 50 CFR 648.235 that sets the dogfish 
possession limits at 600 lb (272 kg) is effective August 16, 2006. The 
specifications are effective August 16, 2006, through April 30, 2009.

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 May 8, 2006 (71 FR 26726), with public comment accepted 
through May 23, 2006. 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.

2006-2008 Specifications

    The commercial spiny dogfish quota for the 2006-2008 fishing years 
is 4 million lb (1.81 million kg) annually, to be divided into two 
semi-annual periods as follows: 2,316,000 lb (1.05 million kg) for 
quota period 1 (May 1 - Oct. 31); and 1,684,000 lb (763,849 kg) for 
quota period 2 (Nov. 1 - April 30). The possession limits are 600 lb 
(272 kg) for quota periods 1 and 2, to discourage a directed fishery.

Comments and Responses

    There were 1,099 comments submitted on the proposed measures, by 4 
organizations and 1,095 individuals.
    Comment 1: Three organizations and 1,081 individuals argued that 
NMFS should have followed the Monitoring Committee's recommendation, 
setting the quota at 2 million lb (907 mt) and the possession limits at 
600 lb (272 kg) and 300 lb (136 kg), respectively. These commenters 
argued that the Monitoring Committee's recommendation represented the 
best available scientific information.
    Response: The Council's analysis concluded that the U.S. commercial 
spiny dogfish landings are controlled more by the possession limits 
than the overall quota. Maintaining the limits of 600 lb (272 kg) for 
both quota periods does not erode the control over landings and would 
allow for a limited level of retention of spiny dogfish caught 
incidentally while fishing for other species. Standardizing the 
possession limits for both quota periods will address a perceived 
inequity that has been identified by some vessel operators, without 
creating an incentive for directed fishing. Discouraging directed 
fishing through this modest possession limit and an incidental catch 
quota will provide protection for mature female spiny dogfish, the 
portion of the stock that has traditionally been targeted by the 
directed fishery, and the stock component that is most in need of 
protection and rebuilding. These measures would also be consistent with 
the measures being implemented under the Atlantic States Marine 
Fishieries Commission's (ASMFC) Interstate Fishery Management Plan in 
state waters, at least for FY 2006. This would have the benefit of 
establishing consistent management measures in Federal and state 
jurisdictions, and would simplify monitoring and enforcement. As 
demonstrated in previous years, when measures differed in state and 
Federal waters, the benefits of a more restrictive quota in Federal 
waters would likely be slight because fishing would continue in state 
waters

[[Page 40437]]

under the less restrictive ASMFC quota. In addition, discard mortality 
associated with continuing incidental catches would continue to occur 
after a quota period was closed, further undermining the conservation 
benefits expected from a more restrictive quota in Federal waters. The 
Northeast Fisheries Science Center's (NEFSC) review of the proposed 
measure concluded that the higher quota would not significantly alter 
the rebuilding period (no more than 1 or 2 years), though continued low 
recruitment could change this conclusion. Although the specifications 
are being set for 3 years, the Council and NMFS will continue to review 
new information in intervening years, and if that information indicates 
that the specifications need to be modified to ensure continued 
rebuilding of the stock, the specifications-setting process would be 
re-initiated to take that information into account.
    Comment 2: One organization argued that by not following the 
Monitoring Committee's recommendation, NMFS would be violating the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) because it would allow mortality to increase, and 
therefore increase the time horizon for rebuilding.
    Response: The Dogfish Fishery Management Plan (FMP) implemented a 
strategy to eliminate the directed fishery for dogfish, which was the 
largest source of dogfish mortality prior to management. A quota was 
established to allow a limited amount of incidental catch to be landed. 
Even if the quota were reduced to 0, dogfish mortality would continue 
to occur since dogfish are caught incidentally in other fisheries. 
Thus, this action maintains the FMP strategy of eliminating mortality 
associated with directed fishing for dogfish and allowing limited 
landings of incidental catch. NMFS believes that this incidental level 
of harvest is a reasonable exercise of its discretion in line with the 
court's decision in Natural Resources Defense Council, Inc., v. 
National Marine Fisheries Service 4211 F.3d 872, (9th Cir. 2005). This 
level will allow those fishing for other species to land a limited 
amount of dogfish caught incidentally. This will not allow a directed 
fishery for dogfish, which is the principal objective of the Dogfish 
FMP. NMFS believes that setting an incidental quota in line with the 
Monitoring Committee's recommendation would result in discard mortality 
of dogfish caught incidentally that would otherwise be landed under a 
higher incidental quota. This deprives fishermen of the limited income 
they could derive from fish that they would have to discard under the 
lower quota without having a material benefit to the stock. While 
section 304(e) of the Magnuson-Stevens Act specifies that a rebuilding 
period should be short as possible, it invests NMFS with a certain 
amount of discretion to take into account other factors such as the 
stock status and biology and the needs needs of fishing communities in 
determining the length of any rebuilding period.
    Comment 3: One organization also did not agree with NMFS's 
contention that setting the quota at 4 million lb, and possession 
limits at 600 lb (272 kg) for both periods would be beneficial because 
it would mirror the ASFMC management measures for 2006. This 
organization argued that such a decision, ``turned the requirements of 
the Magnuson-Stevens Act on its head,'' because instead of mirroring 
the ASFMC, NMFS should focus on rebuilding the stock as quickly as 
possible. The commenter also suggested that the preemption section of 
the Magnuson-Stevens Act could be used to resolve conflicts with state 
law.
    Response: As noted in the response to comment 2, NMFS has 
discretion to take into account other factors in determining how long 
the rebuilding period should be. There is no absolute legal requirement 
that a rebuilding period needs to be as short as possible. NMFS has 
determined that an incidental harvest of dogfish should be allowed. The 
views of the commenters differ from that of the agency as to what that 
level should be. Only one commenter suggested that the level should be 
set at 0. Obviously, there is a recognition that dogfish mortality 
would continue even were the quota 0, since it is caught incidentally 
in other fisheries. It would also be a questionable exercise of agency 
authority to close other fisheries to prevent the incidental mortality 
of dogfish. NMFS believes that it is a reasonable exercise of its 
discretion to allow for a 4-million lb (1,814-mt) incidental quota. 
This will prevent discards of incidentally caught dogfish that would 
otherwise be landed but for a lower quota, and not allow for directed 
fishing. The fact that the 4-million lb (1,814-mt) quota will mirror 
that set by the ASMFC and achieve a consistent management program is 
important yet ancillary to the establishment of an incidental quota 
that NMFS believes is reasonable and does not represent a material 
delay in rebuilding the dogfish fishery.
    Preempting state law under the Magnuson-Stevens Act is a 
politically sensitive process involving strongly held states rights. It 
is not invoked lightly. It has been used only once or twice during the 
history of the Magnuson-Stevens Act and then only with the cooperation 
of the affected state. The Magnuson-Stevens Act reserves the use of 
this provision only for rare occasions where a state has taken any 
action or omitted to take any action, the results of which will 
substantially and adversely affect the carrying out of a FMP. The 
implementation of a dogfish quota higher than the Federal quota by the 
states does not fall within those narrowly prescribed circumstances 
that would allow preemption under the Magnuson-Stevens Act.
    Comment 4: Seven individuals argued that the proposed action was 
not supported by the science, but they did not recommend a specific 
alternative.
    Response: Although these measures do not reflect the Monitoring 
Committee's recommendation, they are not without scientific support, as 
is indicated by the analysis presented in the Council's environmental 
assessment. Specifically, the measures will continue to preclude a 
directed fishery and contribute to the rebuilding of the stock. As 
noted in the response to comment 1, the NEFSC's review of the proposed 
measure concluded that the higher quota, if reached, would not 
significantly alter the rebuilding period (no more than 1 or 2 years); 
and given the restraining influence of the low possession limit, it is 
unlikely that the higher quota will be attained. In light of this, and 
comments made in other responses included in this action, these 
measures are a reasonable exercise of the discretion invested in NMFS 
by the Magnuson-Stevens Act.
    Comment 5: One organization and five individuals claimed that there 
were too many dogfish in the ocean, that NMFS has mismanaged the 
resource and relied on faulty assessment science, and that NMFS should 
increase the quota and the possession limits.
    Response: NMFS does not question that fishermen frequently 
encounter dogfish and in large numbers while fishing. However, the best 
available science indicates that spiny dogfish are overfished and, as 
such, the Magnuson-Stevens Act requires the development of a management 
program to rebuild the stock. Given the status of the stock, a directed 
fishery is not appropriate at this time. Increasing the quota and the 
possession limits would risk the re-initiation of a directed fishery.
    Comment 6: One individual agreed that there were too many dogfish 
and urged NMFS to allow a male-only fishery.

[[Page 40438]]

    Response: A directed fishery of any type is inappropriate in light 
of the overfished condition of the spiny dogfish stock. No one has 
identified a way to successfully direct fishing on males 
only.Therefore, If a directed fishery for male dogfish developed, it 
would likely require the discard of female dogfish, and increase the 
associated discard mortality. That would likely have a negative impact 
on the rebuilding program, as it could increase the mortality of mature 
females.
    Comment 7: One individual wanted the dogfish quota set at zero.
    Response: For the reasons cited in response 3, NMFS believes that 
this is not appropriate.
    Comment 8: One organization urges NMFS to limit the specifications 
to 1 year until the 2006 stock assessment is completed and analyzed. 
After that assessment is completed, the commenter argued, multi-year 
specifications can be set.
    Response: Because the recovery trajectory for spiny dogfish is 
expected to be rather gradual under the most conservative management 
regime, NMFS believes that it is appropriate to set the specifications 
for 3 years. As noted in the response to comment 1, the Council and 
NMFS will continue to review new information as it is brought forward, 
and if that information indicates that the specifications need to be 
modified to ensure continued rebuilding of the stock, the 
specifications-setting process would be re-initiated to take that 
information into account. Thus, if the 2006 stock assessment warrants a 
change in the specifications, in either direction, such a change will 
be made.

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 this 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 2004 fishing year was used to evaluate impacts of 
this action, as that is the most recent year for which data are 
complete. According to NMFS permit file data, 2,911 vessels possessed 
Federal spiny dogfish permits in 2004, while 180 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

    The FRFA evaluated three alternatives. The action described in this 
final rule establishes a commercial quota of 4 million lb (1,814 mt), 
and a possession limit of 600 lb (272 kg), in both quota periods, for a 
period of 3 years. Alternative 2 is the MAFMC proposal, which 
establishes a 2-million lb (907-mt) quota with possession limits of 600 
lb (272 kg) in both quota periods, for a period of 3 years. Alternative 
3 is the NEFMC proposal, which establishes a commercial quota of 4-
million lb (1,814 mt), with possession limits of 600 lb (272 kg) in 
both quota periods, for a period of 1 year.
    Based on NMFS dealer reports, spiny dogfish landings in fishing 
year 2004 were roughly 1.5 million lb (680 mt). These landings occurred 
at a time when the Federal and state management measures for spiny 
dogfish were identical, with a quota of 4 million lb (1,814 mt), and 
the possession limits for periods 1 and 2 set at 600 lb (272 kg) and 
300 lb (136 kg), respectively. This shows that the U.S. commercial 
spiny dogfish landings are controlled more by the possession limits 
than the overall quota, unless the quota is set so low as to be 
constraining.
    All three of the alternatives to the no-action alternative 
considered could lead to a slight increase in revenues to individual 
fishermen from the sale of dogfish. This is because all three of the 
alternatives would increase the possession limit in quota period 2 to 
600 lb (272 kg). Setting the possession limit at 600 lb (272 kg) 
throughout the year, as opposed to 600 (272 kg) and 300 lb (136 kg) in 
periods 1 and 2 respectively, would allow fishermen to land higher 
amounts of dogfish in the second period as compared to what was landed 
in fishing year 2004. If the 1,124 fishing trips that landed spiny 
dogfish in period 2 of FY2004 had all landed 600 lb (272 kg), periodic 
landings would have increased from 320,000 lb (145 mt) to 560,000 lb 
(254 mt), for a net increase of 240,000 lb (109 mt), which, at the 
average price of 0.17 cents per pound of dogfish, equals roughly an 
addition $41,000 in net revenue.

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 fishery. 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

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: July 11, 2006.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out above, 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.  648.235, paragraph (b)(1) is revised as follows:


Sec.  648.235  Possession and landing restrictions.

* * * * *
    (b) * * *

[[Page 40439]]

    (1) Possess up to 600 lb (272 kg) of spiny dogfish per trip; and
* * * * *
[FR Doc. E6-11134 Filed 7-14-06; 8:45 am]
BILLING CODE 3510-22-S