[Federal Register Volume 89, Number 100 (Wednesday, May 22, 2024)]
[Rules and Regulations]
[Pages 44924-44927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11024]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 240514-0138; RTID 0648-XD841]


Fisheries of the Northeastern United States; Atlantic Spiny 
Dogfish Fishery; 2024 Specifications Emergency Measures

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

ACTION: Temporary rule; emergency action; request for comments.

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SUMMARY: This emergency rule implements 2024 specifications for the 
Atlantic spiny dogfish fishery. This action is necessary to establish 
allowable harvest levels for the spiny dogfish fishery to prevent 
overfishing while minimizing adverse economic impacts on fishing 
communities, using the best scientific information available.

DATES: Effective May 21, 2024, through November 18, 2024. Comments must 
be received by June 21, 2024.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2024-0063 by the following method:
    Electronic Submission: Submit all electronic public comments via 
the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and 
enter NOAA-NMFS-2024-0063 in the Search box. Click on the ``Comment'' 
icon, complete the required fields, and enter or attach your comments.
    Instructions: Comments sent by another method, to any other address 
or individual, or received after the end of the comment period, may not 
be considered by NMFS. All comments received are part of the public 
record and will generally be posted for public viewing on https://www.regulation.gov without change. All personal identifying information 
(e.g., name, address, etc.), confidential business information, or 
otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous).
    The Mid-Atlantic Fishery Management Council prepared an 
environmental assessment (EA) for these specifications that describes 
the action, other considered alternatives, and analyses of the impacts 
of all alternatives. Copies of the specifications

[[Page 44925]]

document, including the EA, are available on request from Dr. 
Christopher M. Moore, Executive Director, Mid-Atlantic Fishery 
Management Council, Suite 201, 800 North State Street, Dover, DE 19901. 
These documents are also accessible via the internet at https://www.mafmc.org/action-archive.

FOR FURTHER INFORMATION CONTACT: Emily Keiley, Fishery Policy Analyst, 
(978) 281-9116, [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The Mid-Atlantic and New England Fishery Management Councils 
(Councils) jointly manage the Atlantic Spiny Dogfish Fishery Management 
Plan (FMP), with the Mid-Atlantic Council acting as the administrative 
lead. The Atlantic States Marine Fisheries Commission manages the spiny 
dogfish fishery in state waters from Maine to North Carolina through an 
interstate fishery management plan. The implementing regulations for 
the Federal FMP are found at 50 CFR part 648 subpart L, and require the 
specification of regulatory harvest limits, including an acceptable 
biological catch (ABC), annual catch limit (ACL), annual catch target 
(ACT), total allowable landings, and a coastwide commercial quota. 
These limits and other management measures may be set for up to 5 
fishing years at a time, with each fishing year running from May 1 
through April 30.
    Due to concerns related to national standard 8 of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 
we are issuing this temporary emergency rule to implement Atlantic 
spiny dogfish specifications for the 2024 fishing year.

Council Recommended Specifications

    In October 2023, the Mid-Atlantic Council's Science and Statistical 
Committee (SSC) set spiny dogfish ABCs for 2024-2026 based on the 2023 
management track assessment. The Spiny Dogfish Monitoring Committee 
recommended specifications in November 2023, followed by 
recommendations from the joint Spiny Dogfish Committee. The Mid-
Atlantic Council adopted 2024-2026 specifications at its December 2023 
meeting and the New England Council adopted identical 2024-2026 
specifications at its January 2024 meeting.
    The Mid-Atlantic Council's Risk Policy specifies an acceptable risk 
for overfishing. The risk policy works in conjunction with the SSC's 
application of the Mid-Atlantic Council's ABC control rule to account 
for scientific uncertainty when determining ABCs. For a stock slightly 
above its biomass target, such as spiny dogfish, the risk policy 
dictates achieving a 54-percent chance of not overfishing. Using the 
stock assessment and associated projection methods, the SSC applied the 
Council's risk policy to generate the 2024-2026 ABCs. The Spiny Dogfish 
Monitoring Committee recommended reductions for Canadian landings and 
U.S. recreational landings as well as model-based projected discard 
set-asides. The specifications recommended by the Monitoring Committee 
result in a commercial quota of 4,605 metric tons (mt; 10.1 million 
pounds (lb)) for 2024. The size of this quota was a significant concern 
for the spiny dogfish industry and, ultimately, both Councils. 
Representatives of the commercial spiny dogfish industry indicated to 
the Councils that another reduction beyond that already taken in 2023, 
particularly a reduction that brings the quota substantially below 12 
million lb (5,443 mt), could be devastating for what remains of the 
industry. Industry testimony has cited a level close to 12 million lb 
(5,443 mt) as a threshold for the minimum commercial quota necessary 
for the sole remaining commercial spiny dogfish processor to remain 
economically viable.
    Research track (December 2022) and management track (September 
2023) stock assessments were recently completed for spiny dogfish. 
Initial findings from the research track assessment indicated that 
recruitment and biomass were trending downward and that the stock may 
be experiencing overfishing. However, the more recent management track 
assessment found that, with updated data and indices, the stock is not 
currently overfished or experiencing overfishing and remains above its 
biomass target. Even so, in response to the results of these 
assessments and using the Mid-Atlantic Council's Risk Policy, the SSC 
recommended an 8-percent decrease to the 2024 ABC (resulting in a 15-
percent decrease in the commercial quota), but as noted above, these 
decreases create a significant risk of the collapse of the fishery in 
light of the recent loss of the last southern processing facility.
    Given concerns about the commercial quota level in 2024, the 
Councils considered alternative approaches to setting the 
specifications. Because the Councils cannot set an ABC above the SSC 
recommendation, they opted to use a discard estimate that was different 
from the Monitoring Committee's recommendation. The Councils considered 
several approaches and ultimately decided to use the 2022 discard 
estimate as a proxy for predicted discards in 2024. The 2022 estimate 
of discards represents the lowest level in the time series, and using 
2022 discards as a proxy results in a lower value of predicted discards 
than the model-based estimate recommended by the Monitoring Committee. 
Specifically, the Monitoring Committee stated that the model-based 
discard estimate is objective and more likely to reflect actual 
discards than a recent 3-year average or the most recent year (2022) 
estimate. The modeled discards integrate the historic discard 
information as well as the trends in biomass forecasted by the model. 
The Councils did not identify a compelling reason why the single-year 
2022 estimate should be more predictive of 2024 discards than the 
model-based estimate recommended by the Monitoring Committee. While the 
lower discard estimate recommended by the Councils did result in a 
higher commercial quota, we agree with the Monitoring Committee, that 
it is not based on the best available science. As a result, we are 
unable to approve the Councils' recommended 2024 specifications with 
the lower discard estimate, as they violate national standard 2.

Justification for Emergency Action

    Section 305(c) of the Magnuson-Stevens Act authorizes us to take 
``emergency'' action to address situations that result from recent, 
unforeseen events or recently discovered circumstances. NMFS' policy 
guidelines for the use of emergency rules (62 FR 44421, August 21, 
1997) specify the following three criteria that define what an 
emergency situation is, and justification for final rulemaking: (1) The 
emergency results from recent, unforeseen events or recently discovered 
circumstances; (2) the emergency presents serious conservation or 
management problems in the fishery; and (3) the emergency can be 
addressed through emergency regulations for which the immediate 
benefits outweigh the value of advance notice, public comment, and 
deliberative consideration of the impacts on participants to the same 
extent as would be expected under the normal rulemaking process. NMFS' 
policy guidelines further provide that emergency action is justified 
for certain situations where emergency action would prevent significant 
direct economic loss, to preserve a significant economic opportunity 
that otherwise

[[Page 44926]]

might be foregone, or to prevent significant community impacts.
    The emergency here results from recent, unforeseen events and 
recently discovered circumstances of commercial dogfish quotas being 
too low to support the fishery in light of the recent closure of one of 
the last two processing facilities for the fishery. Industry and 
fishery stakeholders continue to express their concern with any further 
reduction in annual commercial quotas, indicating that the supply chain 
for spiny dogfish remains vulnerable to disruption. This summer, one of 
the last two remaining dogfish processors, and the last major southern 
processor, unexpectedly closed. Testimony during the recent Council 
meetings suggests that overly restrictive commercial dogfish quotas 
will irreparably harm the fishery, and may cause the closure of the 
last remaining processing facility, which would likely end the 
commercial fishery and result in significant socioeconomic impacts to 
the fishing communities that rely on this resource. This testimony and 
industry feedback suggests that commercial quotas notably under 12 
million lb (5,443 mt) will be insufficient to sustain what remains of 
the processing capacity in this fishery. If the sole remaining 
processor shuts down due to insufficient volume and inability to 
sustain the European market, it is unlikely that any other facilities 
would process high volumes of dogfish, resulting in the potential 
collapse of the commercial spiny dogfish fishery and significant social 
and economic impacts on fishing communities.
    The emergency presents serious management problems for the fishery. 
The industry's reliance on a sole operational high-volume processing 
facility, and the concerns that quotas set below a reasonable threshold 
would lead to that processor ceasing its dogfish processing operations, 
lead to concerns under national standard 8 regarding the ability of the 
dogfish fishery, and the communities that depend upon it, to continue 
to participate in the fishery. Consistent with the provisions of 
national standard 1, that we prevent overfishing, and national standard 
2, that we base management measures on the best scientific information 
available, we are also, consistent with national standard 8, taking 
into account the importance of a viable spiny dogfish fishery in an 
effort to minimize adverse economic impacts on the communities that 
depend on this fishery.
    In this context, the use of the emergency rulemaking provisions to 
allow for slightly higher quotas is intended to prevent the collapse of 
the dogfish fishery, a significant concern that outweighs the immediate 
benefits of advance notice and public comment under a normal rulemaking 
process.

2024 Spiny Dogfish Specifications

    Given the significant concerns raised by the fishing industry and 
the risk to the associated fishing communities, we are taking emergency 
action to set 2024 spiny dogfish specifications at levels higher than 
the SSC recommendation for 2024. The Councils' approach to address 
national standard 8 and to achieve a higher commercial quota in 2024 by 
using the 2022 discard estimate as the basis for 2024 predicted 
discards was not based on the best available science, which as noted 
above, violates national standard 2. While the Councils are constrained 
in their capacity to address this issue given that their recommendation 
cannot exceed the SSC's recommended ABC, that restriction applies only 
to the Councils and NMFS is able to set an ABC higher than the SSC 
recommendation, so long as the probability of overfishing is 50 percent 
or less, consistent with national standard 1. Here, setting the ABC 
equal to the OFL of 7,818 mt (17.24 million lb) would result in no more 
than a 50-percent chance of overfishing. Using the Monitoring 
Committee's recommended model-based values for discards, and accounting 
for expected recreational landings, the resulting 2024 commercial quota 
is 5,140 mt (11.3 million lb) (table 1). The higher quota level is 
expected to have social and economic benefits, while still meeting our 
national standard 1 mandate to prevent overfishing and use the best 
scientific information available.

     Table 1--Final Atlantic Spiny Dogfish Specifications for FY2024
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                                                             2024
  Final 2024 Atlantic spiny dogfish specifications  --------------------
                                                          lb        mt
------------------------------------------------------------------------
OFL................................................   17,235,719   7,818
ABC................................................   17,235,719   7,818
Canadian Landings..................................       79,366      36
Domestic ABC.......................................   17,156,353   7,782
ACL................................................   17,156,353   7,782
Management Uncertainty Buffer......................            0       0
Amount of buffer...................................            0       0
ACT................................................   17,156,353   7,782
U.S. Discards......................................    5,577,698   2,530
TAL................................................   11,578,664   5,252
U.S. Recreational Landings.........................      246,917     112
Commercial Quota...................................   11,331,747   5,140
------------------------------------------------------------------------

    This action makes no changes to the 7,500-lb (3,402-kg) trip limit.
    We will consider the Councils' recommended specifications for 2025 
and 2026 in subsequent rulemakings.This emergency action is intended to 
provide a 1-year bridge, with a slightly higher risk of overfishing on 
a healthy stock above its biomass target, to mitigate the potential 
long-term adverse economic and social impact should the fishery lose 
access to its sole remaining commercial processor.

Renewal of Emergency Measures

    The Magnuson-Stevens Act limits NMFS' authority to implement 
interim measures for an initial period of 180 days, with a potential 
extension up to an additional 186 days, if warranted. The public has an 
opportunity to comment on the initial emergency management measures in 
this temporary rule (see ADDRESSES). After considering public comments 
on this rule, NMFS may extend the interim measures for one additional 
period of not more than 186 days to maintain these measures for the 
remainder of the 2024 fishing year.

Classification

    The Assistant Administrator for Fisheries, NOAA, has determined 
that this rule is necessary to respond to an emergency and is 
consistent with the national standards and other provisions of the 
Magnuson-Stevens Act and other applicable laws. The interim measures in 
this rule may be extended for a period of not more than 186 days as 
provided under section 305(c)(3)(B) of the Magnuson-Stevens Act.
    The Assistant Administrator for Fisheries, NOAA, finds it 
unnecessary and contrary to the public interest to provide prior notice 
and an opportunity for public comment. Similarly, the need to implement 
these measures in a timely manner constitutes good cause to make the 
rule effective immediately upon filing for public inspection with the 
Office of the Federal Register. The need to ensure that these emergency 
specifications are in place as early as possible into the 2024 spiny 
dogfish fishing year constitutes good cause under the authority 
contained in 5 U.S.C. 553(d)(3) to waive the 30-day delay in the 
effective date of this action. The 2024 fishing year began on May 1, 
2024. The higher quota that carried over from 2023 until replaced by 
this rule carries an increased risk of overfishing, and is not 
consistent with the best available scientific information to prevent 
overfishing with at least a 50-percent probability. A delay in the date 
of effectiveness would be contrary to the public interest as it could 
create confusion in the spiny dogfish industry around current quotas, 
and with state agencies as they prepare their annual management 
measures. Furthermore,

[[Page 44927]]

regulated parties do not require any additional time to come into 
compliance with this rule, and thus, a 30-day delay before the 
emergency rule becomes effective does not provide any benefit. Unlike 
actions that require an adjustment period, spiny dogfish fishing 
vessels will not have to purchase new equipment or otherwise expend 
time or money to comply with these management measures. Rather, 
complying with this emergency rule simply means adhering to the new 
catch limits set for the 2024 fishing year. For these reasons, there is 
good cause not to delay this emergency rule's effectiveness, consistent 
with 5 U.S.C. 553(d)(3), and to implement this action immediately. This 
rule is being issued at the earliest possible date, as NMFS received 
the Councils' Environmental Assessment for this action on May 7, 2024.
    This action is being taken pursuant to the emergency provision of 
the Magnuson-Stevens Act and is exempt from OMB review.
    This emergency rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is issued without opportunity for 
prior notice and opportunity for public comment.
    This emergency rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.

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

    Dated: May 15, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2024-11024 Filed 5-21-24; 8:45 am]
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