[Federal Register Volume 75, Number 121 (Thursday, June 24, 2010)]
[Rules and Regulations]
[Pages 36012-36014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15324]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100201058-0260-02]
RIN 0648-AY50


Fisheries of the Northeastern United States; 2010 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 specifications and management measures for the 
spiny dogfish fishery for the 2010 fishing year (FY) (May 1, 2010, 
through April 30, 2011). NMFS is implementing a spiny dogfish quota of 
15 million lb (6,803.89 mt) for FY 2010, and maintaining the possession 
limit of 3,000 lb (1.36 mt). These measures are consistent with the 
Spiny Dogfish Fishery Management Plan (FMP) and based on new biological 
reference points announced by peer reviewers of the Transboundary 
Resource Assessment Committee (TRAC), which indicated the stock is 
rebuilt.

DATES: Effective July 26, 2010 through April 30, 2011.

ADDRESSES: 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 Fishery Management Council, Room 
2115, Federal Building, 300 South New Street, Dover, DE 19904-6790. The 
revised EA/RIR/IRFA updated after the announcement of new biological 
reference points is also accessible via the Internet at http://www.nero.noaa.gov.
    NMFS prepared a Final Regulatory Flexibility Analysis (FRFA), which 
is contained in the Classification section of the preamble of this 
rule. Copies of the FRFA and the Small Entity Compliance Guide are 
available from the Regional Administrator, Northeast Regional Office, 
NMFS, 55 Great Republic Drive, Gloucester, MA 01930-2276, and are also 
available via the internet at http://www.nero.nmfs.gov.

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

SUPPLEMENTARY INFORMATION:

Background

    A proposed rule for this action was published in the Federal 
Register on April 2, 2010 (75 FR 16716), with public comment accepted 
through May 3, 2010. NMFS proposed to establish a commercial quota of 
12 million lb (5,443.11 mt), the level calculated to achieve the 
fishing mortality rate (F) that would rebuild the stock 
(Frebuild) after accounting for other sources of fishing 
mortality. NMFS also proposed maintaining the possession limit of 3,000 
lb (1.36 mt) for FY 2010. As noted in the preamble to the proposed 
rule, the proposed commercial quota of 12 million lb (5,443.11 mt) was 
consistent with the rebuilding F level (Frebuild = 0.11) in 
existence at that time. As also noted, the Transboundary Resource 
Assessment Committee (TRAC) conducted a benchmark stock assessment for 
spiny dogfish in February 2010, and planned to re-examine biological 
reference points. The proposed rule explained that the FMP provides a 
mechanism to allow updated stock status determination criteria to be 
used in setting final specifications. Details about the proposed 
measures were included in the preamble of the proposed rule and are not 
repeated here.
    The TRAC met in early February 2010, and determined that additional 
analysis would be conducted by a group of selected peer reviewers to 
further define biological reference points, in particular to determine 
the status of the spiny dogfish stock for the purposes of U.S. 
management.

Revised Stock Status Determination Criteria

    On April 6, 2010, the group of peer reviewers selected by the TRAC 
accepted a newly defined biomass target of 159,288 mt, based on 
analysis of information in the TRAC assessment. The reviewers concluded 
that the updated stochastic estimate of spawning stock biomass (SSB) 
for 2009 (163,256 mt) exceeded the newly defined biomass target, and 
that estimates of SSB have been above the new biomass target since 
2008, consistent with a rebuilt stock. Therefore, the spiny dogfish 
stock can be considered rebuilt for the purposes of U.S. management. In 
addition, the peer reviewers agreed on a new fishing mortality rate 
target (Ftarget) of 0.207 (previously 0.28), which allows 
1.5 pups per recruit, and a fishing mortality rate threshold 
(Fthreshold) of 0.325 (previously 0.39). Based on the 
updated stock status determination criteria, NMFS sent a letter to the 
Councils that the spiny dogfish stock is rebuilt.
    The Ftarget of 0.207 could allow the 2010 quota to be 
specified as high as 21.5 million lb (9,752.24 mt). However, the Mid-
Atlantic and New England Fishery Management Councils' Joint Spiny 
Dogfish Committee (Committee) submitted a comment on the proposed rule 
that supported increasing the FY 2010 commercial quota to a level that 
employs a constant catch management approach and avoids dramatic 
fluctuations in annual quota levels. In addition, there are still a 
number of concerns about the spiny dogfish stock condition. The 2009 
updated stock assessment shows evidence of strong recruitment; however, 
low pup production from 1997 through 2003 has been implicated by survey 
catches of pups and is further supported by subsequent low survey 
catches of the size categories these age classes have grown into. As 
such, a decline in the stock is expected when these small 1997-2003 
year-classes recruit into the SSB (in approximately 2015). 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. A harvest scenario of 21.6 million lb (9,797.6 mt) over the 
next 5 years has only a 27 percent chance of exceeding the biomass 
target (\1/2\ Bmsy) when the small year classes from years 
of low pup production recruit into the fishery.

2010 Specifications and Management Measures

    The commercial spiny dogfish quota for FY 2010 is 15 million lb 
(6,803.89 mt), the level that equates to an F of 0.167 when discard 
mortality and Canadian harvest estimates are accounted for. In setting 
the FY 2010 commercial quota at 15 million lb (6,803.89 mt), there is a 
98-percent chance that the stock will not decline to the level where it 
would once again be deemed overfished, and a significant decrease in 
annual quota levels will not be necessary when the small year-classes 
from years of low pup production recruit into the fishery.
    As specified in the FMP, quota Period 1 (May 1 through October 31) 
would be

[[Page 36013]]

allocated 57.9-percent of the 15-million-lb quota (8,685,000 lb), and 
quota Period 2 (November 1 through April 30) would be allocated 42.1-
percent of the quota (6,315,000 lb). The possession limit of 3,000 lb 
(1.36 mt) is maintained for FY 2010.

Comments and Responses

    NMFS received six comments on the proposed measures from: The Maine 
Department of Marine Resources (ME DMR); the Mid-Atlantic and New 
England Fishery Management Councils' Joint Spiny Dogfish Committee 
(Committee); Shark Advocates International, on behalf of nine 
conservation organizations including itself; and three individuals.
    Comment 1: The Committee supported an increase in the FY 2010 spiny 
dogfish quota from the 12-million-lb level in the proposed rule, based 
on analysis of the TRAC results. It specifically supported a commercial 
quota greater than in the proposed rule (12 million lb) but less than 
the maximum quota analyzed by the Councils (29.5 million lb), in order 
to ensure stability in future landings of spiny dogfish.
    Response: NMFS considered the Committee recommendation along with 
the results from the peer reviewed analysis of the TRAC assessment in 
setting the FY 2010 specifications. NMFS understands the desirability 
of a constant catch management approach and anticipates that the 15-
million-lb (6,803.89 mt) quota for FY 2010 will avoid the need for 
significant quota fluctuations in future years.
    Comment 2: ME DMR suggested NMFS take the TRAC analysis results 
into account in preparing the final specifications for FY 2010 and 
increase the commercial quota and possession limit as high as possible. 
The three individuals, all from Maine, opposed maintaining the 3,000-lb 
(1.36 mt) possession limit, and suggested it be increased to 6,000 lb. 
One individual suggested the possession limit increase to either 6,000 
lb per day, or 12,000 lb per trip.
    Response: NMFS utilized the results from the peer-reviewed analysis 
of the TRAC when setting the FY 2010 specifications for the spiny 
dogfish fishery. Although recruitment to the fishery increased in 2009, 
due to estimated low pup production from 1997-2003 implicated by survey 
catches of pups and low survey catches of size categories for those 
year classes, a decline in the stock is expected when these small 1997-
2003 year-classes recruit to the SSB (approximately 2015). 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. Therefore, the FY 2010 commercial quota is being increased 
to a level where F is equal to 0.167 after other sources of fishing 
mortality are accounted for.
    NMFS does not agree that the possession limit should be increased 
for FY 2010. The FMP was developed in 1998 and implemented in 2000 in 
order to halt large-scale depletion of reproductively mature female 
spiny dogfish and to allow the stock to rebuild. Because the commercial 
fishery concentrated primarily on mature females, the FMP established 
possession limits to control the directed fishery for spiny dogfish and 
allow for the reproductively mature portion of the population to 
recover.
    Neither the Councils nor the Atlantic States Marine Fisheries 
Commission (Commission) considered alternatives that would have 
increased the FY 2010 possession limits. In fact, the Commission plan 
specifies that spiny dogfish possession limits may be established by 
the states at a maximum of 3,000 lb (1.36 mt), and many states have set 
possession limits that are considerably lower than that for some or all 
of the year. It is for these reasons that the possession limit is 
maintained at 3,000 lb (1.36 mt) for the FY 2010.
    Comment 3: Shark Advocacy International, on behalf of nine 
conservation groups, including itself, supported maintaining the 
commercial quota at 12-million-lb (5,443.11 mt) and the possession 
limit at 3,000-lb (1.36 mt) to ensure the spiny dogfish fishery is 
fully rebuilt. They state that a significant increase in quota would 
encourage fishing on already stressed populations of mature females. 
They also expressed concern about the Commission setting a 15-million-
lb (6,803.89 mt) quota because it is inconsistent, in their view, with 
the best scientific information available. They encouraged NMFS to 
track state landings, anticipate when catch limits are met, and close 
Federal fisheries to avoid overages.
    Response: NMFS's decision to specify the FY 2010 commercial quota 
at 15 million lb (6,803.89 mt) is based on new biological reference 
points established for the spiny dogfish stock, and the determination 
that the stock is rebuilt.
    NMFS concluded that that the commercial quota could be increased to 
15 million lb (6,803.89 mt) without negative effects on reproductively 
mature females. Analysis indicates this quota level equates to an F of 
0.167, when discard mortality and Canadian harvest estimates are 
incorporated into total catch. Projections also indicate that this 
harvest level could be held constant for 5 years, with a 98-percent 
probability the stock would not decline to the level where it would 
once again be deemed overfished.
    NMFS does monitor state landings on a weekly basis and closes the 
fishery when it is anticipated that the commercial quota is met for 
that quota period; however NMFS and the Commission differ in their 
quota allocation schemes, which can cause confusion among different 
parties. NMFS manages the spiny dogfish stock by allocating the quota 
into two periods, where Period 1 (May 1 through October 31) is 
allocated 57.9-percent of the commercial quota (8,685,000 lb), and 
quota Period 2 (November 1 through April 30), which is allocated 42.1-
percent of the quota (6,315,000 lb). The Commission allocates the 
commercial quota by region; the Northern region is allocated 58-percent 
of the quota, the Southern region is allocated 26-percent of the quota, 
and North Carolina is allocated 16-percent of the quota. While the 
Federal fishery is closed when the commercial quota is project to be 
harvested, it is the responsibility of the individual states to close 
their fishery at the recommendation of the Commission when the regional 
allocation is projected to be harvested. Implementing a commercial 
quota of 15 million lb (6,803.89 mt) ensures consistency with the 
Commission. However, there are still inconsistencies in the quota 
allocation scenario between the state and Federal FMPs, which is 
sometimes confusing for fishermen and creates administrative burden. 
The issue of quota allocation will be reconsidered by the Councils in 
upcoming Amendment 3 to the FMP, and is not the subject of this 
rulemaking.

Classification

    Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this rule is 
consistent with the Spiny Dogfish FMP, other provisions of the 
Magnuson-Stevens Act, and other applicable law.
    This action is authorized by 50 CFR part 648 and has been 
determined to be not significant for purposes of Executive Order 12866 
(E.O. 12866).
    NMFS, pursuant to section 604 of the Regulatory Flexibility Act, 
has prepared a final regulatory flexibility analysis (FRFA), included 
in this final rule, in support of the FY 2010 spiny dogfish 
specifications and management measures. The FRFA describes the economic 
impact that this final rule,

[[Page 36014]]

along with other non-preferred alternatives, will have on small 
entities.
    The FRFA incorporates the economic impacts and analysis summarized 
in the IRFA, a summary of the significant issues raised by the public, 
and a summary of analyses prepared to support the action (i.e., the EA 
and the RIR). The contents of these documents are not repeated in 
detail here. A copy of the IRFA, the RIR, and the EA are available upon 
request (see ADDRESSES). A complete 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 this 
final rule, and is not repeated here.

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.

Summary of Public Comment on IRFA and Agency Response

    NMFS received six comments on this rule but none of them concerned 
the IRFA or the economic impacts of the proposed action.

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 their 
gross receipts 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. According to unpublished NMFS 
permit file data, 3,142 vessels were issued Federal spiny dogfish 
permits in FY 2008, while 229 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 IRFA was revised from the original submitted by the Councils 
after the results of the TRAC review were announced. The revised IRFA 
considered four distinct alternatives. Alternative 1, which was the 
preferred alternative in the proposed rule, is equivalent to No Action, 
and was proposed to achieve Frebuild = 0.11 with a commercial quota of 
12.0-million-lb (5,443.11 mt). Alternative 2 is based on an Ftarget of 
0.20, with a resultant commercial quota of 21.6 million lb (9,797.60 
mt). Alternative 3 is based on the target F of 0.28 with a resultant 
quota of 29.5-million-lb (13,380.97 mt). Alternative 4, the action 
being implemented, is based on an F below the revised Ftarget, and is 
equal to an F of 0.167 after other sources of fishing mortality are 
accounted for. Alternative 4 results in a commercial quota of 15.0-
million-lb (6,803.89 mt). None of the alternatives proposed to modify 
the current 3,000-lb (1.36 mt) possession limit.
     None of the alternatives under consideration are expected to 
result in negative economic impacts. Higher quotas (Alternatives 2, 3, 
and 4) are expected to increase revenue from the dogfish fishery, 
assuming that the quota implemented would be attained. In general, no 
negative economic impacts are expected because the alternatives are 
consistent with the goals of the FMP and are unlikely to result in 
significant (negative) deviation from the status quo. Total spiny 
dogfish revenue from the last FY for which data are complete (FY 2008) 
was reported as $2.157 million. Using the average FY 2008 price/lb 
($0.24), landing the full FY 2009 quota (and therefore also the quota 
under Alternative 1) corresponds to $2.880 million. Using the same 
approach, landing the 15-million-lb (6,803.89 mt) quota under 
Alternative 4 would increase revenue to $3.600 million. Revenue would 
be expected to increase to $5.191 million under Alternative 2, and 
$7.070 million under Alternative 3. The economic benefits would be 
greatest under Alternative 3, and to a lesser extent Alternatives 2 and 
4, but fishermen would still benefit compared to the maintained revenue 
levels under Alternative 1. Although Alternatives 2 and 3 would provide 
the greatest economic benefits, the quota proposed under Alternative 4 
is the action being implemented due to concerns about the stock 
condition and the desire to avoid dramatic fluctuations in annual quota 
levels, as explained earlier in this preamble. Implementing a 
commercial quota that employs a constant catch management strategy and 
that takes into account potential future declines in SSB will provide 
the industry with a more stable and economically beneficial fishery in 
the future.

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 (guide) was prepared and 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 Northeast Regional Administrator (see 
ADDRESSES) and may be found at the following web site: http://www.nero.noaa.gov/nero/.

    Dated: June 18, 2010
Eric C. Schwaab,
Assistant Administrator For Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2010-15324 Filed 6-23-10; 8:45 am]
BILLING CODE 3510-22-S