[Federal Register Volume 79, Number 135 (Tuesday, July 15, 2014)]
[Rules and Regulations]
[Pages 41141-41144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-16477]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 130103003-4550-02]
RIN 0648-BC77


Fisheries of the Northeastern United States; Spiny Dogfish 
Fishery; Amendment 3

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

ACTION: Final rule.

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SUMMARY: NMFS approves and implements measures in Amendment 3 to the 
Spiny Dogfish Fishery Management Plan, which was developed by the Mid-
Atlantic and New England Fishery Management Councils. The approved 
management measures include implementing a research set-aside program, 
updating essential fish habitat definitions, allowing rollover of 
specifications, and eliminating the seasonal allocation of the 
commercial quota. These administrative measures are intended to improve 
the implementation of the Spiny Dogfish Fishery Management Plan and 
provide benefits to the spiny dogfish fishery.

DATES: This rule is effective August 14, 2014.

ADDRESSES: Copies of the amendment, including the Environmental 
Assessment and Initial Regulatory Flexibility Analysis (EA/IRFA) and 
other supporting documents for the action are available from Dr. 
Christopher M. Moore, Executive Director, Mid-Atlantic Fishery 
Management Council, Suite 201, 800 N. State Street, Dover, DE 19901. 
The amendment 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 this rule. Copies of the 
FRFA and the Small Entity Compliance Guide are available from the 
Regional Administrator, Greater Atlantic Regional Fisheries Office, 
NMFS, 55 Great Republic Drive, Gloucester, MA 01930, and are available 
via the Internet at: http://www.nero.noaa.gov.

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

SUPPLEMENTARY INFORMATION: 

Background

    This final rule approves and implements measures contained in 
Amendment 3 to the Spiny Dogfish Fishery Management Plan (FMP), which 
was approved by NMFS on behalf of the Secretary of Commerce on June 20, 
2014. Amendment 3 was developed and submitted to NMFS by the Mid-
Atlantic and New England Fishery Management Councils, who jointly 
manage the spiny dogfish fishery. A Notice of Availability of the 
amendment published in the Federal Register on March 26, 2014 (79 FR 
16752), with public comments accepted through May 27, 2014. A proposed 
rule to implement the measures contained in Amendment 3 published in 
the Federal Register on April 10, 2014 (79 FR 19861), with public 
comments accepted through May 12, 2014. The Councils recommended, and 
NMFS proposed, the following measures: (1) Adding an option for 
allocation of a small percentage (up to 3 percent) of the commercial 
quota for use in the Research Set-Aside (RSA) Program; (2) updating the 
definitions of essential fish habitat (EFH) for all life stages of 
spiny dogfish; (3) maintaining existing annual management measures 
until replaced via rulemaking (i.e., specifications rollover); and (4) 
eliminating the seasonal allocation of the commercial quota in order to 
minimize conflicts with spiny dogfish fishing operations that occur in 
both state and Federal waters. Details concerning the development of 
Amendment 3 and the proposed measures were contained in the preamble of 
the proposed rule and are not repeated here.

Approved Measures

Research Set-Aside

    NMFS has approved a new RSA program under the Spiny Dogfish FMP. A 
number of FMPs include an RSA program, in which a percentage of the 
quota may be set aside each year to fund research. In the annual 
specifications process, the Councils may set aside up to 3 percent of 
the spiny dogfish commercial quota as RSA quota. The revenues generated 
by those landings will be used for scientific research aimed at 
improving our understanding of the spiny dogfish stock and its related 
fisheries, consistent with the Councils' research priorities.

Essential Fish Habitat

    NMFS has approved the updated spiny dogfish EFH definitions and 
descriptions contained in Amendment 3. The Magnuson-Stevens Fishery 
Conservation and Management Act requires that EFH be defined for all 
managed stocks, and that it should be periodically reviewed and 
updated. The

[[Page 41142]]

updated EFH information includes updated text and maps, using the most 
recent fishery-independent data, to describe EFH for the following 
spiny dogfish size and sex categories: Recruits (juvenile males and 
females < 36 cm); sub-adult females (36-79 cm); sub-adult males (36-59 
cm); adult females (>79 cm); and adult males (>59 cm). Detailed EFH 
maps and text descriptions are provided in the supporting documents 
(see ADDRESSES).

Rollover of Specifications

    The specifications (annual catch limit, commercial quota, etc.) of 
the current fishing year will carry forward to the subsequent fishing 
year, in the event that rulemaking and implementation of revised 
specifications are delayed. If the implementation of new final 
specifications is delayed beyond the start of the new fishing year (May 
1), the previous year's specifications would apply to the new fishing 
year until replaced by the final rule.

Commercial Quota Allocation

    The Spiny Dogfish FMP's seasonal quota allocation is removed, and 
replaced with a single, annual coastwide commercial quota. The Federal 
spiny dogfish fishery will now only be closed when 100 percent of the 
coastwide commercial quota is projected to be landed. The states, 
through the Atlantic States Marine Fisheries Commission's Interstate 
Spiny Dogfish FMP, will be responsible for controlling their spiny 
dogfish allocations to ensure the participation of all states.

Comments and Responses

    A total of five comments were collectively received on the Notice 
of Availability and proposed rule for Amendment 3. One comment was 
submitted by the Commission, and four comments were submitted by 
members of the general public. One of the public commenters did not 
provide comments relevant to the proposed measures, so no response is 
given. This section summarizes the comments contained in the remaining 
individual comment letters and NMFS' response to those comments. No 
changes were made to the final rule as a result of the comments 
received.
    Comment 1: The Commission expressed support for all of the measures 
in Amendment 3. Specifically, they commented that the measure removing 
the seasonal allocation of the Federal commercial quota would improve 
alignment with the Commission's Spiny Dogfish FMP, and reduce confusion 
within the fishing industry over differing regulations in Federal and 
state waters. They stated that the other measures in Amendment 3 would 
not negatively impact state management of spiny dogfish.
    Response: NMFS agrees with the Commission's assessment of the 
amendment's potential impacts on state management of the spiny dogfish 
fishery. Part of the purpose of Amendment 3 was to improve alignment 
with the Commission's Interstate Spiny Dogfish FMP.
    Comment 2: Three public commenters opposed the preferred 
alternative of allowing up to 3 percent of the commercial quota to be 
specified as RSA quota. They favored an alternative that would allow up 
to 5 percent of the quota to be used for RSA, citing the comparatively 
low value of spiny dogfish, and a high need for more research.
    Response: NMFS acknowledges that there are research priorities for 
spiny dogfish and the 5-percent RSA alternative would potentially 
allocate more funds for spiny dogfish research. However, NMFS disagrees 
that a 3-percent RSA quota would be limiting given the commercial 
quotas currently in place. For example, the spiny dogfish commercial 
quota for fishing year 2014 is currently specified at 41.784 million lb 
(18,953 mt), 3 percent of which would equal 1.254 million lb (569 mt) 
worth approximately US$250,000. The proposed RSA program is an 
appropriate balance between providing adequate research opportunities 
and maximizing optimum yield and, therefore, is consistent with the 
goals of the Spiny Dogfish FMP, other FMPs with an RSA component, and 
the Magnuson-Stevens Act.
    Comment 3: One public commenter opposed the proposed measure that 
would allow the rollover of specifications, arguing that it could 
provide incentives for managers to deliberately delay the rulemaking 
progress, particularly if new specification measures would result in 
negative economic impacts.
    Response: The specification rollover provision exists in many of 
the Councils' FMPs, and this measure was included in Amendment 3 to 
make the Spiny Dogfish FMP more consistent with those other FMPs. This 
measure is intended to help control fishing mortality on the stock in 
the event that rulemaking for updated specifications is delayed beyond 
the start of the new fishing year. Currently, under the status quo 
alternative, if rulemaking is delayed, the spiny dogfish fishery 
operates without any effective quota, and NMFS has no authority to 
close the fishery. The provision does not excuse the Councils or NMFS 
from their responsibilities to recommend annual management measures 
consistent with the requirements of the Spiny Dogfish FMP and the 
Magnuson-Stevens Act.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator determined that this rule is consistent 
with the Spiny Dogfish FMP, other provisions of the Magnuson-Stevens 
Act, and other applicable law.
    This action has been determined to be not significant for purposes 
of Executive Order (E.O.) 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 Initial Regulatory 
Flexibility Analysis (IRFA), a summary of the significant issues raised 
by the public comments in response to the IRFA, NMFS' response 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 and the 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 
Statement of Any Changes Made in the Proposed Rule as a Result of Such 
Comments

    Five comments were received on the proposed rule. For a summary of 
the comments, and NMFS' responses, see the Comments and Responses 
section above. The comments did not raise any issues or concerns 
related to the IRFA or the economic impacts of the rule more generally, 
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

    This rule will impact fishing vessels, including commercial fishing 
entities. In 2012, 2,666 vessels held spiny dogfish permits. However, 
not all of those vessels are active participants in

[[Page 41143]]

the fishery; only 489 vessels landed spiny dogfish in 2012. If two or 
more vessels have identical owners, these vessels should be considered 
to be part of the same firm, because they may be the same entity. When 
permit ownership data is considered, in 2012, 1,976 fishing firms held 
at least one spiny dogfish permit. According to the Small Business 
Administration (SBA), firms are classified as finfish or shellfish 
firms based on the activity from which they derive the most revenue. 
Using the $5M cutoff for shellfish firms (NAICS 114112) and the $19M 
cutoff for finfish firms (NAICS 114111), there are 1,953 directly 
regulated small entities and 23 directly regulated large entities. 
There are 488 active fishing firms, of which 482 are small entities and 
6 are large entities. On average, for small entities, spiny dogfish is 
responsible for a small fraction of landings, and active participants 
derive a small share of gross receipts from the spiny dogfish fishery. 
While all 1,953 directly regulated small entities will be affected by 
Amendment 3, many of these small entities do not currently participate 
in this fishery and would be likely to experience only negligible 
economic impacts, if any.

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

    According to the Councils' analysis in the EA, Amendment 3 is not 
expected to result in any direct negative or positive economic impacts. 
The management measures and alternatives included in this action are 
administrative in nature, and have no inherent direct economic costs or 
benefits. Possible indirect, minor positive economic impacts are 
anticipated from the RSA and EFH alternatives. Under the RSA 
alternatives, the preferred alternative (Alternative 1b) of allowing an 
RSA quota of up to 3 percent of the commercial quota, and Alternative 
1c, which would have allowed up to 5 percent of the commercial quota 
for RSA, are expected to result in minor positive economic impacts 
relative to no action (i.e., no RSA; Alternative 1a). This conclusion 
was based on cases where research funded by RSA would result in 
improved management of the spiny dogfish fishery. Both the no action 
(i.e., no update to EFH; Alternative 2a) and preferred (i.e., updated 
EFH; Alternative 2b) EFH alternatives may result in indirect, minor 
positive economic impacts, as the designation of EFH can inform Federal 
activities and help minimize potentially negative habitat impacts. 
Under the commercial quota allocation alternatives, the no action 
alternative (i.e., maintain current seasonal allocation of the quota; 
Alternative 4a) was expected to result in indirect minor negative 
economic impacts in situations where misalignment in Federal (Council) 
vs. state (Commission) fishery closures could result in lost revenues. 
The preferred alternative (i.e., remove allocation of the quota; 
Alternative 4b) is anticipated to alleviate the potential negative 
economic impacts associated with the current management misalignment. 
Both the no action alternative (i.e., no rollover of specifications; 
Alternative 3a) and the preferred alternative (i.e., allow rollover of 
specifications; Alternative 3b) associated with the rollover of 
specifications from one year to the next in the event of delayed 
implementation of specifications are expected to have no economic 
impact (positive or negative).

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 was prepared. Copies of this final rule 
are available from the Greater Atlantic Regional Fisheries 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 Greater Atlantic 
Regional Fisheries Office's Web site at www.nero.noaa.gov.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: July 9, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 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.  648.232, revise paragraphs (a), (b), and (e); and add 
paragraphs (c)(3) and (f) to read as follows:


Sec.  648.232  Spiny dogfish specifications.

    (a) Commercial quota and other specification measures. The Spiny 
Dogfish Monitoring Committee shall recommend to the Joint Spiny Dogfish 
Committee a TAL (i.e., annual coastwide commercial quota) and any other 
measures, including those in paragraphs (a)(1) through (8) of this 
section, that are necessary to ensure that the commercial ACL will not 
be exceeded in any fishing year (May 1-April 30), for a period of 1-5 
fishing years. If research quota is specified as described in paragraph 
(f) of this section, the effective commercial quota will be those 
commercial landings available after the deduction for the research 
quota. The measures that may be recommended include, but are not 
limited to:
    (1) Minimum or maximum fish sizes;
    (2) Seasons;
    (3) Mesh size restrictions;
    (4) Trip limits;
    (5) Research quota set from a range of 0 to 3 percent of the 
commercial quota;
    (6) [Reserved]
    (7) Other gear restrictions; and
    (8) Changes to AMs and ACT control rules.
    (b) Joint Spiny Dogfish Committee recommendation. The Councils' 
Joint Spiny Dogfish Committee shall review the recommendations of the 
Spiny Dogfish Monitoring Committee. Based on these recommendations, 
requests for research quota, and any public comments, the Joint Spiny 
Dogfish Committee shall recommend to the Councils a TAL, and possibly 
other measures, including those specified in paragraphs (a)(1) through 
(8) of this section, necessary to ensure that the ACL specified in 
Sec.  648.230 will not be exceeded in any fishing year (May 1-April 
30), for a period of 1-5 fishing years.
    (c) * * *

[[Page 41144]]

    (3) If the annual specifications are not published in the Federal 
Register prior to the start of the fishing year, the previous year's 
annual specifications will remain in effect. The previous year's 
specifications will be replaced by the current year's specifications as 
of the effective date of the final rule implementing the current year's 
specifications.
* * * * *
    (e) Landings applied against the commercial quota. All spiny 
dogfish landed for a commercial purpose in the states from Maine 
through Florida shall be applied against the annual coastwide 
commercial quota, regardless of where the spiny dogfish were harvested.
    (f) Research quota. See Sec.  648.22(g).

0
3. In Sec.  648.233, revise paragraph (a) to read as follows:


Sec.  648.233  Spiny dogfish accountability measures (AMs).

    (a) Commercial EEZ closure. The Regional Administrator shall 
determine the date by which the annual coastwide quota described in 
Sec.  648.232 will be harvested and shall close the EEZ to fishing for 
spiny dogfish on that date for the remainder of the fishing year by 
publishing notification in the Federal Register. Upon the closure date, 
and for the remainder of the fishing year, no vessel may fish for or 
possess spiny dogfish in the EEZ, nor may vessels issued a spiny 
dogfish permit under this part land spiny dogfish, nor may dealers 
issued a Federal permit purchase spiny dogfish from vessels issued a 
spiny dogfish permit under this part.
* * * * *

0
4. In Sec.  648.235, remove paragraph (c) and revise paragraph (a) 
introductory text and paragraph (b) to read as follows:


Sec.  648.235  Spiny dogfish possession and landing restrictions.

    (a) Possession limit. Vessels issued a valid Federal spiny dogfish 
permit under Sec.  648.4(a)(11) may:
* * * * *
    (b) Regulations governing the harvest, possession, landing, 
purchase, and sale of shark fins are found at part 600, subpart N, of 
this chapter.

[FR Doc. 2014-16477 Filed 7-14-14; 8:45 am]
BILLING CODE 3510-22-P