[Federal Register Volume 76, Number 109 (Tuesday, June 7, 2011)]
[Rules and Regulations]
[Pages 32873-32876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13974]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 110303179-1290-02]
RIN 0648-XA163


Fisheries of the Northeastern United States; 2011 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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[[Page 32874]]

SUMMARY: NMFS announces specifications and management measures for the 
spiny dogfish fishery for the 2011 fishing year (FY) (May 1, 2011, 
through April 30, 2012). NMFS is implementing a spiny dogfish quota of 
20 million lb (9,071.85 mt) for FY 2011, and is maintaining the 
possession limit of 3,000 lb (1.36 mt). These measures are consistent 
with the Spiny Dogfish Fishery Management Plan (FMP) and promote the 
utilization and conservation of the spiny dogfish resource.

DATES: Effective July 7, 2011, through April 30, 2012.

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: Dr. Christopher M. 
Moore, Executive Director, Mid-Atlantic Fishery Management Council, 
Suite 201, 800 N. State St, Dover, DE 19901. The final EA/RIR/IRFA 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

    Spiny dogfish were declared overfished by NMFS on April 3, 1998. 
Consequently, the Magnuson-Stevens Act required NMFS to prepare 
measures to end overfishing and rebuild the spiny dogfish stock. During 
1998 and 1999, the Mid-Atlantic Fishery Management Council (MAFMC) and 
the New England Fishery Management Council (NEFMC) developed a joint 
FMP, with the MAFMC designated as the administrative lead. The FMP 
implemented a rebuilding program that held fishing mortality rates to a 
level that would allow the stock to rebuild and that specified a semi-
annual quota, allocating 57.9 percent of the coastwide quota to the 
fishery in Period 1 (May 1-October 30) and 42.1 percent of the quota in 
Period 2 (November 1-April 30). The FMP also prohibits ``finning,'' 
with a maximum of 5 percent fin to carcass ratio by weight; allows for 
a framework adjustment process; and implements annual FMP review, 
permit and reporting requirements for the spiny dogfish fishery, and 
other general administrative requirements (65 FR 1557, January 11, 
2000).
    The regulations implementing the Spiny Dogfish 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 ensure that the target fishing mortality 
rate (target F) specified in the FMP will not be exceeded in any FY 
(May 1-April 30), for a period of 1-5 FYs.
    The regulations at Sec.  648.230(b) specify that the Spiny Dogfish 
Monitoring Committee (MC), which is 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), recommend to the Council's Joint Spiny Dogfish 
Committee (Joint Committee) a commercial quota and other management 
measures necessary to achieve the target F for 1-5 FYs based on the 
best available information. The Joint Committee considers the MC's 
recommendations and any public comment in making its recommendation to 
the two Councils. The Councils then review the recommendations of the 
MC and Joint Committee separately 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.
    A proposed rule for this action was published in the Federal 
Register on March 17, 2011 (76 FR 14644), with public comment accepted 
through April 18, 2011. Consistent with the Councils' recommendations, 
NMFS proposed an FY 2011 commercial quota of 20 million lb (9,071.85 
mt), a level that will prevent overfishing, after accounting for other 
sources of fishing mortality (U.S. discards, recreational catch, and 
Canadian landings). NMFS also proposed maintaining the possession limit 
of 3,000 lb (1.36 mt) for FY 2011. A complete discussion of the 
development of the specifications and management measures appears in 
the preamble of the proposed rule and is not repeated here.

Final 2011 Specifications and Management Measures

    The spiny dogfish commercial quota for FY 2011 is 20 million lb 
(9,071.85 mt). The current possession limit of 3,000 lb (1.36 mt) 
remains unchanged. As specified in the FMP, quota Period 1 (May 1 
through October 31) is allocated 57.9 percent of the quota (11,580,000 
lb (5,252.6 mt)), and quota Period 2 (November 1 through April 30) is 
allocated 42.1 percent of the quota (8,420,000 lb (3,819.25 mt)). The 
2011 spiny dogfish commercial quota is consistent with the 20-million-
lb quota adopted by the Atlantic States Marine Fisheries Commission 
(Commission) on November 12, 2010. However, on March 31, 2011, the 
Commission approved Addendum 3 to the Interstate FMP to divide the 
southern region annual quota of 42 percent into state-specific shares 
and allows for quota transfer between states, rollovers of up to 5 
percent, and state-specified possession limits. Although this final 
rule implements the same commercial quota as the Commission for FY 2011 
(20 million lb), the final 2011 quota implemented by the Commission, 
adjusting for overages from the previous year, is approximately 19.5 
million lb (a difference of 500,000 lb from the Federal quota). The 
issue of quota allocation will be reconsidered by the Councils in the 
upcoming Amendment 3 to the FMP.

[[Page 32875]]

Comments and Responses

    NMFS received three comments on the proposed measures by three 
individuals.
    Comment 1: One individual opposed the spiny dogfish commercial 
quota increase for FY 2011 and commented that the commercial quota 
should be decreased.
    Response: The spiny dogfish fishery was declared rebuilt on June 
22, 2010, based an analysis of biological reference points presented at 
the Transboundary Resource Assessment Committee (TRAC) meeting in 
January 2010. In the fall of 2010, the NMFS 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), 2009 catch data, and results from the 2010 spring 
bottom trawl survey. The update specified that the female spawning 
stock biomass (SSB) for 2010 is 164,066 mt (362 million lb), about 3 
percent above the maximum spawning stock biomass, SSBmax 
(159,288 mt), the maximum sustainable yield biomass (Bmsy) 
proxy. The 2010 NEFSC stock status update confirmed that overfishing of 
spiny dogfish is not occurring, the stock is not overfished, and the 
stock has been rebuilt since 2008. The quota increase of 5 million lb 
(2,268 mt) for FY 2011 is justified because as the stock continues to 
be rebuilt, the fishery is no longer constrained to 
Frebuild, and fishing mortality rates can increase without 
compromising the status of the current or future stock.
    Comment 2: Two individuals supported the increase in the FY 2011 
commercial spiny dogfish quota. One individual noted that maintaining 
the current possession limit of 3,000 lb (1.36 mt) would not allow for 
the development of a directed spiny dogfish fishery.
    Response: NMFS agrees that increasing the FY 2011 commercial spiny 
dogfish quota will allow utilization of the spiny dogfish resource, 
while still protecting the stock from overfishing.
    NMFS does not agree that the possession limit should be increased 
for FY 2011. The FMP was developed to halt 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 female portion of 
the population to rebuild. The Councils did not consider alternatives 
that would have increased the FY 2011 possession limits specifically to 
limit the development of a large-scale directed fishery and allow the 
stock to fully rebuild. It is for these reasons that the possession 
limit is maintained at 3,000 lb (1.36 mt) for FY 2011.

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).
    Pursuant to section 604 of the Regulatory Flexibility Act, NMFS has 
prepared a final regulatory flexibility analysis (FRFA), which is 
included in this final rule, in support of the FY 2011 spiny dogfish 
specifications and management measures. The FRFA describes the economic 
impact that this final rule, 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).

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 this final rule and is not 
repeated here.

Summary of Public Comment on IRFA and Agency Response

    NMFS received three comments from three individuals on the proposed 
measures. While the comments were not specifically directed to the 
IRFA, two individuals were supportive of the positive economic impact 
the increase in the commercial quota would have on the spiny dogfish 
fishing industry. In addition, one individual stated that due to the 
low ex-vessel value of spiny dogfish, the possession limit should be 
increased to allow for the development of a directed spiny dogfish 
fishery that can supply a burgeoning market. The response to this 
comment is in the ``Comments and Responses'' section in the preamble to 
this rule.

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

    The entities potentially affected by this rule include vessels with 
Federal spiny dogfish permits. According to NMFS permit file data, 
3,020 vessels were issued Federal spiny dogfish permits, while only 398 
of these vessels were active in the fishery in FY 2009. All of these 
potentially affected businesses are considered small entities under the 
standards described in NMFS guidelines because their gross receipts do 
not exceed $4 million annually (13 CFR 121.201(2006)).

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

    NMFS and the Council considered three distinct alternatives for 
this rule, which are assessed in greater detail in the IRFA. The 
potential impacts of each alternative were evaluated using information 
from FY 2009, as that is the most recent year for which data are 
complete. The action recommended in this rule (Alternative 2) specifies 
a commercial quota for spiny dogfish of 20 million lb (9,071.85 mt), 
which is higher than quota in the Status Quo (Alternative 1) option 
that would maintain the FY 2011 commercial quota for spiny dogfish at 
15 million lb (5,443.11 mt). Alternative 3 would specify a commercial 
quota of 31.4 million lb (14,242.8 mt), a level set to achieve the 
existing Ftarget of 0.207. None of the alternatives propose 
to modify the current 3,000-lb (1.36-mt) possession limit.
    Assuming that the quota will be fully attained and that FY 2011 
prices for spiny dogfish will be similar to those in FY 2009, 
Alternatives 2 and 3 would increase revenue levels for affected 
businesses, thereby having a positive economic impact on small 
entities. The positive economic impacts would be greater under 
Alternative 3 than Alternative 2. In contrast, Alternative 1 (status 
quo) would maintain the current revenue levels. Total spiny dogfish 
revenue from the last complete FY (2009) was reported as $2.360 
million. Using the average FY 2009 price/lb

[[Page 32876]]

($0.22), landing the full FY 2010 quota of 15 million lb (5,443.11 mt), 
(and also the FY 2011 quota under Alternative 1) would yield $3.300 
million in fleet revenue. Applying the same approach, revenue would be 
expected to increase to $4.400 million under the proposed action 
(Alternative 2), and $6.898 million under Alternative 3. The quota 
level under Alternative 2 will allow the highest level of harvest of 
spiny dogfish while taking into account scientific uncertainty about 
the stock. Although the level of increased revenue for small entities 
will be less than under Alternative 3, Alternative 2 is more likely to 
prevent overfishing of the spiny dogfish resource and promote a more 
stable stream of commercial landings and revenues over the long term.

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/.

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

    Dated: June 1, 2011.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2011-13974 Filed 6-6-11; 8:45 am]
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