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Fisheries of the Northeastern United States; Final 2006-2008 Specifications for the Spiny Dogfish Fishery
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: July 17, 2006 (Volume 71, Number 136)]
[Rules and Regulations]
[Page 40436-40439]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jy06-14]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 060418103-6181-02; I.D. 040706F]
RIN 0648-AT59
Fisheries of the Northeastern United States; Final 2006-2008
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 final specifications for the 2006-2008 fishing
years, which is May 1, 2006, through April 30, 2009. NMFS is also
establishing possession limits for dogfish at 600 lb (272 kg) for both
quota periods 1 and 2 of the fishery.
DATES: The regulatory change at 50 CFR 648.235 that sets the dogfish
possession limits at 600 lb (272 kg) is effective August 16, 2006. The
specifications are effective August 16, 2006, through April 30, 2009.
ADDRESSES: Copies of supporting documents used by the Joint Spiny
Dogfish Committee and the Spiny Dogfish Monitoring Committee
(Monitoring Committee); the Environmental Assessment, Regulatory Impact
Review, Initial Regulatory Flexibility Analysis (EA/RIR/IRFA); and the
Essential Fish Habitat Assessment (EFHA) are available from Daniel
Furlong, Executive Director, Mid-Atlantic Fishery Management Council
(MAFMC), Federal Building, Room 2115, 300 South Street, Dover, DE
19904. The EA, RIR, IRFA and EFHA are accessible via the Internet at
http://www.nero.gov.
FOR FURTHER INFORMATION CONTACT: Eric Jay Dolin, Fishery Policy
Analyst, (978)281-9259, fax (978)281-9135.
SUPPLEMENTARY INFORMATION:
Background
A proposed rule for this action was published in the Federal
Register on May 8, 2006 (71 FR 26726), with public comment accepted
through May 23, 2006. The final specifications are unchanged from those
that were proposed. A complete discussion of the development of the
specifications appears in the preamble to the proposed rule and is not
repeated here.
2006-2008 Specifications
The commercial spiny dogfish quota for the 2006-2008 fishing years
is 4 million lb (1.81 million kg) annually, to be divided into two
semi-annual periods as follows: 2,316,000 lb (1.05 million kg) for
quota period 1 (May 1 - Oct. 31); and 1,684,000 lb (763,849 kg) for
quota period 2 (Nov. 1 - April 30). The possession limits are 600 lb
(272 kg) for quota periods 1 and 2, to discourage a directed fishery.
Comments and Responses
There were 1,099 comments submitted on the proposed measures, by 4
organizations and 1,095 individuals.
Comment 1: Three organizations and 1,081 individuals argued that
NMFS should have followed the Monitoring Committee's recommendation,
setting the quota at 2 million lb (907 mt) and the possession limits at
600 lb (272 kg) and 300 lb (136 kg), respectively. These commenters
argued that the Monitoring Committee's recommendation represented the
best available scientific information.
Response: The Council's analysis concluded that the U.S. commercial
spiny dogfish landings are controlled more by the possession limits
than the overall quota. Maintaining the limits of 600 lb (272 kg) for
both quota periods does not erode the control over landings and would
allow for a limited level of retention of spiny dogfish caught
incidentally while fishing for other species. Standardizing the
possession limits for both quota periods will address a perceived
inequity that has been identified by some vessel operators, without
creating an incentive for directed fishing. Discouraging directed
fishing through this modest possession limit and an incidental catch
quota will provide protection for mature female spiny dogfish, the
portion of the stock that has traditionally been targeted by the
directed fishery, and the stock component that is most in need of
protection and rebuilding. These measures would also be consistent with
the measures being implemented under the Atlantic States Marine
Fishieries Commission's (ASMFC) Interstate Fishery Management Plan in
state waters, at least for FY 2006. This would have the benefit of
establishing consistent management measures in Federal and state
jurisdictions, and would simplify monitoring and enforcement. As
demonstrated in previous years, when measures differed in state and
Federal waters, the benefits of a more restrictive quota in Federal waters
would likely be slight because fishing would continue in state waters
[[Page 40437]]
under the less restrictive ASMFC quota. In addition, discard mortality
associated with continuing incidental catches would continue to occur
after a quota period was closed, further undermining the conservation
benefits expected from a more restrictive quota in Federal waters. The
Northeast Fisheries Science Center's (NEFSC) review of the proposed
measure concluded that the higher quota would not significantly alter
the rebuilding period (no more than 1 or 2 years), though continued low
recruitment could change this conclusion. Although the specifications
are being set for 3 years, the Council and NMFS will continue to review
new information in intervening years, and if that information indicates
that the specifications need to be modified to ensure continued
rebuilding of the stock, the specifications-setting process would be
re-initiated to take that information into account.
Comment 2: One organization argued that by not following the
Monitoring Committee's recommendation, NMFS would be violating the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) because it would allow mortality to increase, and
therefore increase the time horizon for rebuilding.
Response: The Dogfish Fishery Management Plan (FMP) implemented a
strategy to eliminate the directed fishery for dogfish, which was the
largest source of dogfish mortality prior to management. A quota was
established to allow a limited amount of incidental catch to be landed.
Even if the quota were reduced to 0, dogfish mortality would continue
to occur since dogfish are caught incidentally in other fisheries.
Thus, this action maintains the FMP strategy of eliminating mortality
associated with directed fishing for dogfish and allowing limited
landings of incidental catch. NMFS believes that this incidental level
of harvest is a reasonable exercise of its discretion in line with the
court's decision in Natural Resources Defense Council, Inc., v.
National Marine Fisheries Service 4211 F.3d 872, (9th Cir. 2005). This
level will allow those fishing for other species to land a limited
amount of dogfish caught incidentally. This will not allow a directed
fishery for dogfish, which is the principal objective of the Dogfish
FMP. NMFS believes that setting an incidental quota in line with the
Monitoring Committee's recommendation would result in discard mortality
of dogfish caught incidentally that would otherwise be landed under a
higher incidental quota. This deprives fishermen of the limited income
they could derive from fish that they would have to discard under the
lower quota without having a material benefit to the stock. While
section 304(e) of the Magnuson-Stevens Act specifies that a rebuilding
period should be short as possible, it invests NMFS with a certain
amount of discretion to take into account other factors such as the
stock status and biology and the needs needs of fishing communities in
determining the length of any rebuilding period.
Comment 3: One organization also did not agree with NMFS's
contention that setting the quota at 4 million lb, and possession
limits at 600 lb (272 kg) for both periods would be beneficial because
it would mirror the ASFMC management measures for 2006. This
organization argued that such a decision, ``turned the requirements of
the Magnuson-Stevens Act on its head,'' because instead of mirroring
the ASFMC, NMFS should focus on rebuilding the stock as quickly as
possible. The commenter also suggested that the preemption section of
the Magnuson-Stevens Act could be used to resolve conflicts with state law.
Response: As noted in the response to comment 2, NMFS has
discretion to take into account other factors in determining how long
the rebuilding period should be. There is no absolute legal requirement
that a rebuilding period needs to be as short as possible. NMFS has
determined that an incidental harvest of dogfish should be allowed. The
views of the commenters differ from that of the agency as to what that
level should be. Only one commenter suggested that the level should be
set at 0. Obviously, there is a recognition that dogfish mortality
would continue even were the quota 0, since it is caught incidentally
in other fisheries. It would also be a questionable exercise of agency
authority to close other fisheries to prevent the incidental mortality
of dogfish. NMFS believes that it is a reasonable exercise of its
discretion to allow for a 4-million lb (1,814-mt) incidental quota.
This will prevent discards of incidentally caught dogfish that would
otherwise be landed but for a lower quota, and not allow for directed
fishing. The fact that the 4-million lb (1,814-mt) quota will mirror
that set by the ASMFC and achieve a consistent management program is
important yet ancillary to the establishment of an incidental quota
that NMFS believes is reasonable and does not represent a material
delay in rebuilding the dogfish fishery.
Preempting state law under the Magnuson-Stevens Act is a
politically sensitive process involving strongly held states rights. It
is not invoked lightly. It has been used only once or twice during the
history of the Magnuson-Stevens Act and then only with the cooperation
of the affected state. The Magnuson-Stevens Act reserves the use of
this provision only for rare occasions where a state has taken any
action or omitted to take any action, the results of which will
substantially and adversely affect the carrying out of a FMP. The
implementation of a dogfish quota higher than the Federal quota by the
states does not fall within those narrowly prescribed circumstances
that would allow preemption under the Magnuson-Stevens Act.
Comment 4: Seven individuals argued that the proposed action was
not supported by the science, but they did not recommend a specific
alternative.
Response: Although these measures do not reflect the Monitoring
Committee's recommendation, they are not without scientific support, as
is indicated by the analysis presented in the Council's environmental
assessment. Specifically, the measures will continue to preclude a
directed fishery and contribute to the rebuilding of the stock. As
noted in the response to comment 1, the NEFSC's review of the proposed
measure concluded that the higher quota, if reached, would not
significantly alter the rebuilding period (no more than 1 or 2 years);
and given the restraining influence of the low possession limit, it is
unlikely that the higher quota will be attained. In light of this, and
comments made in other responses included in this action, these
measures are a reasonable exercise of the discretion invested in NMFS
by the Magnuson-Stevens Act.
Comment 5: One organization and five individuals claimed that there
were too many dogfish in the ocean, that NMFS has mismanaged the
resource and relied on faulty assessment science, and that NMFS should
increase the quota and the possession limits.
Response: NMFS does not question that fishermen frequently
encounter dogfish and in large numbers while fishing. However, the best
available science indicates that spiny dogfish are overfished and, as
such, the Magnuson-Stevens Act requires the development of a management
program to rebuild the stock. Given the status of the stock, a directed
fishery is not appropriate at this time. Increasing the quota and the
possession limits would risk the re-initiation of a directed fishery.
Comment 6: One individual agreed that there were too many dogfish
and urged NMFS to allow a male-only fishery.
[[Page 40438]]
Response: A directed fishery of any type is inappropriate in light
of the overfished condition of the spiny dogfish stock. No one has
identified a way to successfully direct fishing on males
only.Therefore, If a directed fishery for male dogfish developed, it
would likely require the discard of female dogfish, and increase the
associated discard mortality. That would likely have a negative impact
on the rebuilding program, as it could increase the mortality of mature
females.
Comment 7: One individual wanted the dogfish quota set at zero.
Response: For the reasons cited in response 3, NMFS believes that
this is not appropriate.
Comment 8: One organization urges NMFS to limit the specifications
to 1 year until the 2006 stock assessment is completed and analyzed.
After that assessment is completed, the commenter argued, multi-year
specifications can be set.
Response: Because the recovery trajectory for spiny dogfish is
expected to be rather gradual under the most conservative management
regime, NMFS believes that it is appropriate to set the specifications
for 3 years. As noted in the response to comment 1, the Council and
NMFS will continue to review new information as it is brought forward,
and if that information indicates that the specifications need to be
modified to ensure continued rebuilding of the stock, the
specifications-setting process would be re-initiated to take that
information into account. Thus, if the 2006 stock assessment warrants a
change in the specifications, in either direction, such a change will
be made.
Classification
Included in this final rule is the FRFA prepared pursuant to 5
U.S.C. 604(a). The FRFA incorporates the discussion that follows, the
comments and responses to the proposed rule, and the initial regulatory
flexibility analysis (IRFA) and other analyses completed in support of
this action. A copy of the IRFA is available from the Regional
Administrator (see ADDRESSES).
Final Regulatory Flexibility Analysis
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 this proposed rule and is not repeated here.
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 they
have gross receipts that do not exceed $3.5 million annually.
Information from the 2004 fishing year was used to evaluate impacts of
this action, as that is the most recent year for which data are
complete. According to NMFS permit file data, 2,911 vessels possessed
Federal spiny dogfish permits in 2004, while 180 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 FRFA evaluated three alternatives. The action described in this
final rule establishes a commercial quota of 4 million lb (1,814 mt),
and a possession limit of 600 lb (272 kg), in both quota periods, for a
period of 3 years. Alternative 2 is the MAFMC proposal, which
establishes a 2-million lb (907-mt) quota with possession limits of 600
lb (272 kg) in both quota periods, for a period of 3 years. Alternative
3 is the NEFMC proposal, which establishes a commercial quota of 4-
million lb (1,814 mt), with possession limits of 600 lb (272 kg) in
both quota periods, for a period of 1 year.
Based on NMFS dealer reports, spiny dogfish landings in fishing
year 2004 were roughly 1.5 million lb (680 mt). These landings occurred
at a time when the Federal and state management measures for spiny
dogfish were identical, with a quota of 4 million lb (1,814 mt), and
the possession limits for periods 1 and 2 set at 600 lb (272 kg) and
300 lb (136 kg), respectively. This shows that the U.S. commercial
spiny dogfish landings are controlled more by the possession limits than
the overall quota, unless the quota is set so low as to be constraining.
All three of the alternatives to the no-action alternative
considered could lead to a slight increase in revenues to individual
fishermen from the sale of dogfish. This is because all three of the
alternatives would increase the possession limit in quota period 2 to
600 lb (272 kg). Setting the possession limit at 600 lb (272 kg)
throughout the year, as opposed to 600 (272 kg) and 300 lb (136 kg) in
periods 1 and 2 respectively, would allow fishermen to land higher
amounts of dogfish in the second period as compared to what was landed
in fishing year 2004. If the 1,124 fishing trips that landed spiny
dogfish in period 2 of FY2004 had all landed 600 lb (272 kg), periodic
landings would have increased from 320,000 lb (145 mt) to 560,000 lb
(254 mt), for a net increase of 240,000 lb (109 mt), which, at the
average price of 0.17 cents per pound of dogfish, equals roughly an
addition $41,000 in net revenue.
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 small entity compliance guide 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 Regional Administrator (see ADDRESSES)
and may be found at the following web site:
http://www.nmfs.gov/ro/doc/nero.html
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: July 11, 2006.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
? For the reasons set out above, 50 CFR part 648 is amended as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
? 1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
? 2. In Sec. 648.235, paragraph (b)(1) is revised as follows:
Sec. 648.235 Possession and landing restrictions.
* * * * *
(b) * * *
[[Page 40439]]
(1) Possess up to 600 lb (272 kg) of spiny dogfish per trip; and
* * * * *
[FR Doc. E6-11134 Filed 7-14-06; 8:45 am]
BILLING CODE 3510-22-S