[Federal Register Volume 75, Number 63 (Friday, April 2, 2010)]
[Proposed Rules]
[Pages 16716-16718]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7489]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100201058-0158-01]
RIN 0648-AY50


Fisheries of the Northeastern United States; Proposed 2010 
Specifications for the Spiny Dogfish Fishery

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes specifications for the spiny dogfish fishery for 
the 2010 fishing year (FY) (May 1, 2010, through April 30, 2011). The 
implementing regulations for the Spiny Dogfish Fishery Management Plan 
(FMP) require NMFS to publish specifications for up to a period of 5 
years and to provide an opportunity for public comment. This 
specification setting will apply to FY 2010 only. The intent of this 
rulemaking is to specify the commercial quota and other management 
measures, and to rebuild the spiny dogfish resource. NMFS proposes that 
the annual quota be set at 12 million lb (5,443.11 mt), and that the 
possession limit for dogfish remain set at 3,000 lb (1.36 mt). These 
proposed specifications and management measures are consistent with the 
FMP and promote the utilization and conservation of the spiny dogfish 
resource.

DATES: Public comments must be received no later than 5 p.m. eastern 
standard time on May 3, 2010.

ADDRESSES: You may submit comments, identified by RIN 0648-AY50, by any 
one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
     Fax: 978-281-9135, Attn: Lindsey Feldman.
     Mail: Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 
01930. Mark the outside of the envelope: ``Comments on 2010 Dogfish 
Spex.''
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. 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.
    Copies of supporting documents used by the Mid-Atlantic Fishery 
Management Council (MAFMC), including the Environmental Assessment (EA) 
and Regulatory Impact Review (RIR)/Initial Regulatory Flexibility 
Analysis (IRFA), are available from: Richard Seagraves, Acting Deputy 
Director, Mid-Atlantic

[[Page 16717]]

Fishery Management Council, Room 2115, Federal Building, 300 South New 
Street, Dover, DE 19904-6790. The EA/RIR/IRFA is also accessible via 
the Internet at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Lindsey Feldman, Fisheries Management 
Specialist, phone: 978-675-2179, fax: 978-281-9135.

SUPPLEMENTARY INFORMATION: Spiny dogfish were declared overfished by 
NMFS on April 3, 1998, and added to the list of overfished stocks in 
the Report on the Status of the Fisheries of the United States, 
prepared pursuant to section 304 of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). Consequently, 
the Magnuson-Stevens Act required the preparation of measures to end 
overfishing and to rebuild the spiny dogfish stock. A joint FMP was 
developed by the MAFMC and NEFMC during 1998 and 1999. The Mid-Atlantic 
Fishery Management Council (MAFMC) was designated as the administrative 
lead on the FMP.
    The regulations implementing the FMP at 50 CFR part 648, subpart L, 
outline the process for specifying the commercial quota and other 
management measures (e.g., minimum or maximum fish sizes, seasons, mesh 
size restrictions, possession limits, and other gear restrictions) 
necessary to assure that the target fishing mortality rate (target F) 
specified in the FMP will not be exceeded in any fishing year (May 1-
April 30), for a period of 1-5 fishing years. The annual quota is 
allocated to two semi-annual quota periods as follows: Period 1, May 1 
through October 31 (57.9 percent); and Period 2, November 1 through 
April 30 (42.1 percent).
    The Spiny Dogfish Monitoring Committee (MC), comprised of 
representatives from states; MAFMC staff; NEFMC staff; NMFS staff; 
academia; and two non-voting, ex-officio industry representatives (one 
each from the MAFMC and NEFMC regions) is required to review the best 
available information and to recommend a commercial quota and other 
management measures necessary to achieve the target F for 1-5 fishing 
years, with the fishing year being from May 1 through April 30. The 
Council's Joint Spiny Dogfish Committee (Joint Committee) then 
considers the MC's recommendations and any public comment in making its 
recommendation to the two Councils. The MAFMC and the NEFMC review the 
recommendations of the MC and Joint Committee and make their 
recommendations to NMFS. NMFS reviews those recommendations, and may 
modify them if necessary to assure that the target F will not be 
exceeded. NMFS then publishes proposed measures for public comment.

Spiny Dogfish Stock Status Update

    In the fall of 2009, the Northeast Fisheries Science Center (NEFSC) 
updated the spiny dogfish stock status using the population modeling 
approach from the 43rd Stock Assessment Workshop (43rd SAW, 2006), 2008 
catch data, and results from the 2009 trawl survey. The update 
indicates that the female spawning stock biomass (SSB) for 2009 is 
163,256 mt (360 M lb), about 2.7% below the maximum spawning stock 
biomass, SSBmax (167,800mt), the current maximum sustainable 
yield biomass (Bmsy) proxy. However, no biomass target 
currently exists in the Federal FMP because the Councils' recommended 
target (90% SSBmax) was disapproved during the review of the 
FMP in 2000.
    The NEFSC stock status update estimated that overfishing is not 
occurring. Total removals (U.S. commercial dead discards, recreational 
landings and discards, and Canadian commercial landings) in 2008 were 
approximately 10,828 mt (23.871 M lb), corresponding to a fishing 
mortality (F) estimate of 0.11, well below the overfishing threshold of 
F = 0.39 and equivalent to the F level necessary to rebuild the stock 
(Frebuild).
    While the stock status update shows that the stock is close to the 
biomass target proxy, the 2009 stock assessment could not conclude that 
the stock is rebuilt. In addition, there are still a number of concerns 
about the stock condition. Although recruitment to the fishery 
increased in 2009, a decline in SSB is expected when these small 1997-
2003 year-classes recruit to the SSB (approximately 2015) due to 
estimated low pup production from 1997-2003 and low survey catches of 
the size categories for these year classes. In addition, the current 
survival rate of pups may be lower than historic levels due to reduced 
maternal size and a skewed male-to-female sex ratio in the population.

Technical Recommendations

    The MAFMC's Scientific and Statistical Committee (SSC) met on 
October 27, 2009, to develop an acceptable biological catch (ABC) 
recommendation for spiny dogfish for FY 2010 based on the NEFSC stock 
status update. The SSC discussed the fact that the stock had not been 
declared rebuilt, and that the appropriate target fishing mortality for 
spiny dogfish should be one consistent with continuing to achieve 
Frebuild (0.11). According to model projections, the ABC 
associated with Frebuild for spiny dogfish would be 10,064 
mt (22.188 million lb).
    The MC met on October 29, 2009, and November 13, 2009, to recommend 
the appropriate quota and possession limits for FY 2010 based on the 
SSC's ABC recommendation. To set the appropriate commercial quota, the 
MC took into account all other sources of fishing mortality for the 
spiny dogfish stock (U.S. commercial dead discards, recreational 
landings and discards, and Canadian commercial landings). The 
commercial quota that is available after deducting the estimated values 
for these other factors is 12.251 million lb (5,556.96 mt). The MC 
chose to recommend a commercial quota of 12.0 million lb (5,443.11 mt) 
in order to maintain the same quota in FY 2010 as in FY 2009. The MC 
felt that maintaining the slightly lower (status quo) commercial quota 
accommodated some management uncertainty for FY 2010. The MC also 
recommended maintaining possession limits at 3,000 lb (1.36 mt), 
unchanged from 2009.

Joint Committee Recommendations

    The Joint Committee did not meet to review the Monitoring 
Committee's recommendations due to time limitations associated with the 
specification process. The Joint Committee review was encompassed in 
the meetings of both of the full Councils.

Council Recommendations

    The MAFMC and NEFMC met in December and November 2009, 
respectively, to review the technical recommendations. While management 
measures may be established in the specification setting process for up 
to five years, the Councils are both recommending that the 
specifications and management measures be set for FY 2010 only. This is 
primarily because the Transboundary Resource Assessment Committee 
(TRAC) conducted a benchmark stock assessment for spiny dogfish in 
early February 2010, the results of which are expected in late March 
2010. The Councils intend to utilize these results in developing 
specifications for FY 2011 and beyond.
    The MAFMC adopted the MC's recommendation for 12.0 million lb 
(5,443.11 mt). The NEFMC did not adopt the MC recommendation and 
instead derived their recommendation from an ABC based on F = 0.20. The 
commercial quota that results after

[[Page 16718]]

deductions of U.S. commercial dead discards, recreational landings, and 
Canadian commercial landings is 21.6 million lb (9,797.60 mt). Both 
Councils recommended maintaining the possession limits of 3,000 lb 
(1.36 mt).

Proposed Measures

    The FMP provides for disagreement between the Councils on 
management measures for the upcoming fishing year by specifying that 
NMFS may propose measures that were not rejected by both Councils 
assuring that the target F (in this case Frebuild until the 
fishery is declared rebuilt) will not be exceeded in any fishing year.
    NMFS reviewed both Councils' recommendations and concluded that the 
MC's recommendation would assure that the Frebuild (0.11) is 
not exceeded, as required by the FMP until the stock is determined to 
be rebuilt. Therefore, NMFS proposes the measures recommended by the 
MAFMC: a commercial spiny dogfish quota of 12.0 million lb (5443.11 mt) 
and maintaining the current possession limit of 3,000 lb (1.36 mt). As 
specified in the FMP, quota Period 1 (May 1 through October 31) would 
be allocated 6,948,000 lb (3,151.56 mt), and quota Period 2 (November 1 
through April 30) would be allocated 5,052,000 lb (2,291.55 mt).
    The FMP authorizes NMFS to update biological reference points 
through the specification process based on the results of a peer-
reviewed resource assessment such as the TRAC. Therefore, this rule 
also proposes that; if the results of the TRAC assessment, including 
any additional analysis, provide a biomass target that indicates the 
stock is rebuilt, NMFS may consider setting a higher quota for FY 2010 
in the final rule consistent with an appropriate F value. The Councils 
have analyzed the impacts of a quota of 29.5 million lb (13,380.97 mt), 
consistent with a target F (0.28) which is the current F target for a 
rebuilt stock.

Measures Adopted by the Atlantic States Marine Fisheries Commission 
(ASMFC)

    NMFS notes that the proposed 2010 spiny dogfish commercial quota is 
inconsistent with the commercial quota adopted by the ASMFC. On 
February 5, 2010, the ASMFC approved a 15 million lb (6,803.89 mt) 
quota with a maximum possession limit of 3,000 lb (1.36 mt) for FY 
2010. As the quota implemented under the ASMFC is higher, the proposed 
Federal quota is likely to be exceeded by landings by vessels 
authorized to fish only in state waters. As in previous years, when the 
federal spiny dogfish fishery is closed but state fisheries remain 
open, fishing vessels issued federal permits may not fish for, possess, 
or land spiny dogfish from state or federal waters. In addition, 
Addendum II to the ASMFC's Interstate FMP for Spiny Dogfish allocated 
the ASMFC quota with 58 percent to states from Maine through 
Connecticut, 26 percent to New York through Virginia, and 16 percent to 
North Carolina. Due to this difference in allocation, state and Federal 
waters may close at different times, depending on regional and seasonal 
quota attainment.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that the proposed rule is 
consistent with the Spiny Dogfish FMP, other provisions of the 
Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the action, why it is 
being considered, and the legal basis for this action are contained at 
the beginning of this section in the preamble and in the SUMMARY 
section of the preamble. A copy of this analysis is available from the 
Council (see ADDRESSES). A summary of the analysis follows:

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

    According to NMFS permit file data, 3,019 vessels were issued 
Federal spiny dogfish permits in FY 2008, while 229 of these vessels 
contributed to overall landings. 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 FY 2008 was used to evaluate 
impacts of this action, as that is the most recent year for which data 
are complete.

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 IRFA considered three distinct alternatives. The proposed 
action (Alternative 1, Status quo and equivalent to No Action) is 
expected to achieve Frebuild = 0.11 and recommends a 
commercial quota of 12.0 million lb (5,443.11 mt) and a possession 
limit of 3,000 lb (1.36 mt), for FY 2010. The proposed commercial quota 
is lower than those that result from the higher F targets associated 
with Alternative 2 (F = 0.20) and Alternative 3 (F = 0.28). Alternative 
2 proposes a 21.6 million lb (9,797.60 mt) quota and Alternative 3 
proposes a 29.5 million lb (13,380.97 mt) quota. None of the 
alternatives propose to modify the current 3,000 lb possession limit.
    Assuming that the quota implemented would be attained, the proposed 
action would be expected to maintain current revenue levels. 
Alternatives 2 and 3 would be expected to increase revenue from dogfish 
landings, which would have positive or null economic impact on small 
entities. Total spiny dogfish revenue from the last complete fishing 
year (FY 2008) was reported as $2.157 million. Using the average FY 
2008 price/lb ($0.24), landing the 12 million lb (5,443.11 mt) quota 
would yield $2.880 million in fleet revenue. Using the same approach, 
revenue would be expected to increase to $5.191 million under 
Alternative 2 and $7.070 million under Alternative 3. However, under 
Alternative 1, the proposed quota assures that Frebuild 
(0.11) is not exceeded until the stock is determined to be rebuilt, as 
required by the FMP.

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

    Dated: March 29, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2010-7489 Filed 4-1-10; 8:45 am]
BILLING CODE 3510-22-P