[Federal Register Volume 77, Number 99 (Tuesday, May 22, 2012)]
[Rules and Regulations]
[Pages 30224-30226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12366]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120213130-2435-02]
RIN 0648-XA973


Fisheries of the Northeastern United States; Final 2012 Spiny 
Dogfish Fishery Specifications

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

ACTION: Final rule.

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SUMMARY: This rule implements a catch limit, commercial quota, and 
possession limit for the spiny dogfish fishery for the 2012 fishing 
year. The action was developed by the Mid-Atlantic and New England 
Fishery Management Councils pursuant to the fishery specification 
requirements of the Spiny Dogfish Fishery Management Plan. The final 
management measures are supported by the best available scientific 
information and reflect recent increases in spiny dogfish biomass. The 
action is expected to result in positive economic impacts for the spiny 
dogfish fishery while maintaining the conservation objectives of the 
Spiny Dogfish Fishery Management Plan.

DATES: This rule is effective June 21, 2012, through April 30, 2013.

ADDRESSES: An environmental assessment (EA) was prepared that describes 
the action and other considered alternatives and provides a thorough 
analysis of the impacts of the proposed measures and alternatives. 
Copies of the EA and the Initial Regulatory Flexibility Analysis 
(IRFA), are available on request from Dr. Christopher M. Moore, 
Executive Director, Mid Atlantic Fishery Management Council, Suite 201, 
800 N. State St., Dover, DE 19901. The EA/IRFA is also accessible via 
the Internet at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Tobey Curtis, Fishery Policy Analyst, 
(978) 281-9273; fax: (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    Spiny dogfish (Squalus acanthias) were declared overfished by NMFS 
in 1998. Consequently, the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) required NMFS to implement 
measures to end overfishing and rebuild the spiny dogfish stock. The 
Mid-Atlantic Fishery Management Council

[[Page 30225]]

(MAFMC) and the New England Fishery Management Council (NEFMC) 
developed a joint fishery management plan (FMP) that was implemented in 
2000. As a result of the conservation measures in the FMP, the spiny 
dogfish stock was declared to be successfully rebuilt in 2010.
    The regulations implementing the FMP at 50 CFR part 648, subpart L, 
outline the process for specifying an annual catch limit (ACL), 
commercial quota, possession limit, and other management measures for a 
period of 1-5 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 MAFMC's Scientific and Statistical Committee (SSC) reviews the 
best available information on the status of the spiny dogfish 
population and makes recommendations on acceptable biological catch 
(ABC). This recommendation is then used as the basis for catch limits 
and other management measures developed by the MAFMC's Spiny Dogfish 
Monitoring Committee and Joint Spiny Dogfish Committee (which includes 
members of the NEFMC). The MAFMC and NEFMC then review the 
recommendations of the committees and make their specification 
recommendations to NMFS. NMFS reviews those recommendations, and may 
modify them if necessary to ensure that they are consistent with the 
FMP and other applicable law. NMFS then publishes proposed measures for 
public comment. NMFS proposed the specifications set here in the 
Federal Register on March 19, 2012 (77 FR 15991), with a 30-day public 
comment period. NMFS received six comments, which are addressed below.
    A detailed description of how the 2012 spiny dogfish ABC and 
associated specification measures were derived, and the range of 
alternatives analyzed, are provided in the proposed rule and in its 
supplementary materials (see ADDRESSES), and are not repeated here. The 
final approved specifications for the 2012 spiny dogfish fishery are 
described below.

Final Measures

    NMFS is implementing the following specifications for the spiny 
dogfish fishery for the 2012 fishing year:
    1. The spiny dogfish annual catch limit (ACL) is 44.737 million lb 
(20,292 mt);
    2. The spiny dogfish commercial quota is 35.694 million lb (16,191 
mt); and,
    3. The spiny dogfish possession limit remains at 3,000 lb (1,361 
kg) per trip.
    Based on the percentage allocations specified in the FMP, quota 
Period 1 (May 1 through October 31) is allocated 20.667 million lb 
(9,374 mt), and quota Period 2 (November 1 through April 30) is 
allocated 15.027 million lb (6,816 mt). The significant quota increase 
from fishing year 2011 quota, in conjunction with the status quo 
possession limit, should help avoid prolonged fishery closures, extend 
the fishing season, reduce regulatory discards, and maximize revenues 
for vessels that land spiny dogfish.

Comments and Responses

    NMFS received six comments to the proposed specifications. These 
commenters offered five distinct comments.
    Comment 1: Two Massachusetts-based commercial fishing organizations 
commented that they support the proposed spiny dogfish commercial quota 
and possession limit.
    Response: NMFS agrees that the final commercial quota and status 
quo possession limit meet the objectives of the Spiny Dogfish FMP and 
will maximize landings for the fishery during the 2012 fishing year.
    Comment 2: The North Carolina Division of Marine Fisheries 
commented that it supports the proposed quota, but recommended that the 
possession limit be increased to 4,000 lb (1,815 kg), consistent with 
the MAFMC's recommendation.
    Response: NMFS disagrees that the spiny dogfish possession limit 
should be increased. NMFS considers the 3,000 lb (1,361 kg) possession 
limit to be the most appropriate spiny dogfish possession limit for the 
2012 fishing year. As noted above, NMFS believes that the status quo 
possession limit in conjunction with the increased quota has the 
greatest likelihood of prolonging the fishing season, and of preventing 
mid-season fishery closures and their associated negative economic 
impacts. NMFS expects these specifications will distribute spiny 
dogfish landings and revenues across the fishing year, rather than 
increasing per-trip revenues under a shorter fishing season. The 
Atlantic States Marine Fisheries Commission (Commission) has also 
implemented this possession limit in state waters for 2012.
    Comment 3: One fishing industry commenter argued that the science 
used in the spiny dogfish stock assessment and for setting 
specifications is flawed. The commenter suggested that spiny dogfish 
biomass has been underestimated, and that catch limits for female spiny 
dogfish should be between 66 and 75 million lb (30,000-34,000 mt), 
while catch limits for male spiny dogfish should be between 70 and 100 
million lb (32,000-45,000 mt). The commenter further argued that the 
high biomass of male dogfish contributes to predation on spiny dogfish 
pups and more valuable groundfish species, and suggested that a male-
only spiny dogfish fishery should be implemented.
    Response: National Standard 2 of the Magnuson-Stevens Act requires 
that fishery management measures be based upon the best available 
scientific information. The final catch limits and specifications being 
implemented by this rule represent the best available scientific 
information. They are based on the results of peer-reviewed stock 
assessments, the recommendations of the SSC, and the goals of the FMP. 
A description of how the 2012 spiny dogfish catch limits were 
calculated is given in the proposed rule for this action. There is no 
scientific justification for specifying the catch limits at the levels 
recommended by the commenter, and such high limits would be 
inconsistent with the requirements of the FMP. The issue of a male-only 
spiny dogfish fishery is beyond the scope of this rule, and would 
require an amendment to the FMP. NMFS notes that the MAFMC and NEFMC 
are currently developing Amendment 3 to the Spiny Dogfish FMP, but have 
removed from the range of alternatives consideration of male-only spiny 
dogfish management measures.
    Comment 4: One comment submitted by a conservation organization 
opposed the proposed spiny dogfish commercial quota, and recommended 
that the quota only be increased to 30 million lb (13,608 mt), 
consistent with the Commission's initial 2012 quota recommendation. The 
commenter cited numerous concerns with the status of the spiny dogfish 
stock, including vulnerable life history traits, poor pup production, 
projected future declines in spawning stock biomass, declines in the 
average size of pups and mature females, skewed sex ratios, and several 
sources of uncertainty in the stock assessment. The commenter argued 
that the proposed quota represents an unnecessarily high increase that 
is not in the best long-term interests of the fishery. Additionally, 
the commenter suggested that the MAFMC's risk policy used to calculate 
the spiny dogfish ABC (i.e., using the catch level that corresponds to 
a 40-percent probability of overfishing) should be more precautionary 
given the stock's inherent vulnerability. For comparison, the commenter 
noted that the Atlantic

[[Page 30226]]

Highly Migratory Species Fishery Management Plan for coastal sharks 
uses a 70-percent probability of success to select management measures, 
and there should be less than a 20-percent chance of a management 
measure resulting in a stock decline.
    Response: NMFS agrees that the commercial quota of 35.694 million 
lb (16,191 mt) recommended by both Councils represents a dramatic 
increase from earlier quota levels that favors short-term yield over 
long-term fishery stability. NMFS also acknowledges that all of the 
other listed concerns with spiny dogfish stock status are valid. Most 
importantly, spiny dogfish spawning stock biomass is projected to 
decline significantly between 2014 and 2020 due to poor pup production. 
However, while the proposed quota represents the upper limit of the 
range of acceptable quota alternatives, it is not expected to result in 
overfishing. If spiny dogfish biomass declines in future years, harvest 
levels will have to be appropriately reduced in those years. While a 
30-million-lb (13,608-mt) quota may be a more precautionary and 
stabilizing recommendation, the quota set here still reflects the best 
available scientific information, and is consistent with the 
recommendations of the SSC and the requirements of the FMP and 
Magnuson-Stevens Act. Therefore, there is no compelling biological or 
legal justification to reject the commercial quota recommendation of 
both Councils.
    Comment 5: One public commenter argued that the spiny dogfish quota 
should be reduced by 50 percent, to 10 million lb (4,536 mt). No 
justification was provided for this reduction.
    Response: NMFS disagrees that such a reduction in spiny dogfish 
harvest levels is necessary at this time. Spiny dogfish spawning stock 
biomass has been increasing in recent years, and is currently above 
target levels. The proposed increase in quota is supported by the best 
available scientific information and follows the ABC and specification 
process defined in the FMP.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has made a determination that this rule is 
consistent with the Spiny Dogfish FMP, other provisions of the 
Magnuson-Stevens Act, and other applicable law.
    The Office of Management and Budget has determined that this rule 
is not significant for the purposes of Executive Order 12866.
    Pursuant to section 604 of the Regulatory Flexibility Act (RFA), 
NMFS has prepared a Final Regulatory Flexibility Analysis (FRFA) in 
support of this action. The FRFA incorporates the IRFA, a summary of 
the significant issues raised by the public comments in response to the 
IRFA, NMFS' responses to those comments, relevant analyses contained in 
the action and its EA, and a summary of the analyses completed to 
support the action in this rule. A copy of the analyses done in the 
action and EA are available from the Council (see ADDRESSES). A summary 
of the IRFA was published in the proposed rule for this action and is 
not repeated here. A description of why this action was considered, the 
objectives of, and the legal basis for this rule is contained in the 
preamble to the proposed rule and this final rule and is not repeated 
here.

A Summary of the Significant Issues Raised by the Public in Response to 
the IRFA, a Summary of the Agency's Assessment of Such Issues, and a 
Statement of Any Changes Made in the Proposed Rule as a Result of Such 
Comments

    Six comments were received on the proposed rule. For a summary of 
the comments, and NMFS's responses to them, see the Comments and 
Responses section above. None of the comments raised issues or concerns 
related to the IRFA, and no changes were made to the rule as a result 
of the comments.

Description and Estimate of Number of Small Entities To Which the Rule 
Would Apply

    The increase in the spiny dogfish commercial quota would impact 
vessels that hold Federal open access commercial spiny dogfish permits, 
and participate in the spiny dogfish fishery. According to MAFMC's 
analysis, 2,942 vessels were issued spiny dogfish permits in 2010. 
However, only 326 vessels landed any amount of spiny dogfish. While the 
fishery extends from Maine to North Carolina, most active vessels were 
from (in descending order) Massachusetts, New Jersey, New Hampshire, 
Rhode Island, New York, North Carolina, and Virginia.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This action does not introduce any new reporting, recordkeeping, or 
other compliance requirements. This rule does not duplicate, overlap, 
or conflict with other Federal rules.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes

    The purpose of this action is to increase spiny dogfish catch 
limits and landings, consistent with the best available science, 
thereby extending the duration of the fishing season and increasing 
revenue relative to the status quo. The action is expected to maximize 
the short-term profitability for the spiny dogfish fishery during the 
2012 fishing year, without jeopardizing the long-term sustainability of 
the stock. Therefore, the economic impacts resulting from the action 
are expected to be positive, and there were no other alternatives 
considered that could have further increased the economic yield from 
the fishery while remaining constant with the Magnuson-Stevens Act and 
the goals of the FMP.

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 (the guide) was prepared. Copies of this 
final rule are available from the Northeast Regional Office, and the 
guide, i.e., permit holder letter, will be sent to all holders of 
permits for the spiny dogfish fishery. The guide and this final rule 
will be available upon request, and posted on the Northeast Regional 
Office's Web site at www.nero.noaa.gov.

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

    Dated: May 16, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. 2012-12366 Filed 5-21-12; 8:45 am]
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