Fisheries of the Northeastern United States; Spiny Dogfish Fishery Management Plan

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 990713189-9335-02; I.D. 060899B]

RIN 0648-AK79

Fisheries of the Northeastern United States; Spiny Dogfish

Fishery Management Plan

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to initiate management of spiny

dogfish (Squalus acanthias) through implementation of the Spiny Dogfish

Fishery Management Plan (FMP) under the Magnuson-Stevens Fishery

Conservation and Management Act (Magnuson-Stevens Act). This final rule

implements the following measures: A commercial quota; seasonal (semi-

annual) allocation of the quota; a prohibition on finning; a framework

adjustment process; establishment of a Spiny Dogfish Monitoring

Committee; annual FMP review; permit and reporting requirements for

commercial vessels, operators, and dealers; and other measures. The

intent of this rule is to conserve spiny dogfish in order to acheive

optimum yield from the resource.

DATES: Effective February 10, 2000.

ADDRESSES: Copies of the FMP, the Regulatory Impact Review (RIR), the

Initial Regulatory Flexibility Analysis (IRFA) contained within the

RIR, the Supplement to the FMP dated May 1999, and the Final

Environmental Impact Statement (FEIS) are available

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from Daniel Furlong, Executive Director, Mid-Atlantic Fishery

Management Council (MAFMC), Room 2115, Federal Building, 300 South New

Street, Dover, DE 19904-6790. The IRFA, its summary in the proposed

rule, the comments and responses on economic impacts, and the

discussion in the classification section of the final rule constitute

the Final Regulatory Flexibility Analysis (FRFA) for this action.

Comments regarding burden-hour estimates for collection-of-

information requirements contained in this rule should be sent to

Patricia A. Kurkul, Regional Administrator, Northeast Region, National

Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930-

2298, and to the Office of Information and Regulatory Affairs, Office

of Management and Budget (OMB), Washington, DC 20503 (Attention: NOAA

Desk Officer).

FOR FURTHER INFORMATION CONTACT: Richard A. Pearson, Fishery Policy

Analyst, at 978-281-9279.

SUPPLEMENTARY INFORMATION: The spiny dogfish (Squalus acanthias) is a

common small shark that inhabits the temperate and sub-Arctic latitudes

of the North Atlantic Ocean. In the Northwest Atlantic, spiny dogfish

range from Labrador to Florida, but are most abundant from Nova Scotia

to Cape Hatteras. They migrate seasonally, moving north in spring and

summer, and south in fall and winter. Spiny dogfish are considered a

unit stock in the Northwest Atlantic Ocean.

Spiny dogfish landings on the East Coast have increased

dramatically in the last 10 years as export markets for dogfish have

been developed. The fishing mortality rate (F) has correspondingly

risen from below an estimated F=0.1 in the 1980's to the current

estimate of F=0.3. Dogfish landings have been primarily composed of

females because they attain a larger size than males, and large fish

are preferred by the processing sector. The 26th Northeast Regional

Stock Assessment Workshop (SAW 26), in 1998, indicated that biomass

estimates of mature females (> 80 cm) have declined by over 50 percent

since 1989. Recruitment of juvenile spiny dogfish was the lowest on

record in 1997. The combination of increased fishing mortality,

declining biomass of mature females, and low recruitment have

contributed to the overfished condition of the stock.

NMFS notified the Mid-Atlantic and New England Fishery Management

Councils (Councils) on April 3, 1998, that spiny dogfish was being

added to the list of overfished stocks in the Report on the Status of

the Fisheries of the United States, prepared pursuant to section 304 of

the Magnuson-Stevens Act. The Magnuson-Stevens Act requires the

regional fishery management councils to prepare measures within 1 year

of notification to end overfishing and to rebuild the overfished stock.

The FMP was developed jointly by the Councils, with the Mid-

Atlantic Council having the administrative lead.

A Notice of Availability (NOA) for the FMP was published in the

Federal Register on June 29, 1999 (64 FR 34759), and solicited public

comment through August 30, 1999. The proposed rule to implement the FMP

was published in the Federal Register on August 3, 1999 (64 FR 42071),

and solicited public comments through September 17, 1999. The NOA for

the FEIS was published on August 20, 1999 (64 FR 45541), and solicited

comments through September 10, 1999. Comments received by August 30,

1999, in response to any of these documents, were considered when NMFS

made the decision to partially approve the FMP on September 29, 1999.

The only measure in the FMP that was disapproved was the specification

of 180,000 mt as the spawning stock biomass (SSB) target level. The SSB

target was not a regulatory measure and the disapproval has no impact

on these final regulations.

Management Measures

This final rule implements the following measures contained in the

FMP: (1) A commercial quota; (2) seasonal (semi-annual) allocation of a

commercial quota; (3) a prohibition on finning; (4) a framework

adjustment process; (5) the establishment of a Spiny Dogfish Monitoring

Committee; (6) annual FMP review; (7) permit and reporting requirements

for commercial vessels, operators, and dealers; and (8) other measures

regarding sea samplers, foreign fishing, and exempted fishing

activities.

Commercial Quota

An annual spiny dogfish commercial quota will be allocated to the

fishery to control F. The quota will be set at a level to assure that

the F specified for the appropriate year in the FMP and Sec. 648.230(a)

will not be exceeded. The annual commercial quota will be established

by the Regional Administrator, Northeast Region, NMFS (Regional

Administrator), based upon recommendations made by the Councils with

the advice of the Spiny Dogfish Monitoring Committee and the Joint

Spiny Dogfish Committee. The quota recommendation will be based upon

projected stock size estimates for each year, as derived from the

latest stock assessment information, coupled with the target F

specified for each year. The quota is specified for a fishing year that

begins on May 1, and is subdivided into two semi-annual periods. The

period from May 1-October 31 is allocated 57.9 percent of the annual

quota and the period from November 1-April 30 is allocated 42.1 percent

of the annual quota. The percent allocation of quota between the two

semi-annual quota period may be revised through the framework

adjustment process described herein.

All spiny dogfish landed for sale in the states from Maine through

Florida will be applied against the commercial quota, regardless of

where the spiny dogfish were harvested. NMFS will monitor the fishery

to determine when the quota for a semi-annual quota period is reached.

NMFS will publish notification in the Federal Register prohibiting

possession, fishing for, or landing of spiny dogfish by vessels with

Federal spiny dogfish permits from the date on which the quota is

projected to be attained through the remainder of the quota period.

The rebuilding schedule and corresponding annual quotas, as

described in the FMP, were developed assuming an implementation date of

May 1, 1999. According to the rebuilding schedule adopted by the

Councils for the period May 1, 1999, to April 30, 2000, F is reduced to

0.2, which results in a quota of 22,059,228 lbs (10,006 mt), for the

first year. The semi-annual allocations for this period are 12,772,293

lb (5,793.5 mt) for the period May 1, 1999-October 31, 1999; and

9,286,935 lb (4,212.5 mt) for the period November 1, 1999-April 30,

2000. Due to delays in the development of the FMP, the implementation

date of this FMP will be February 10, 2000. Therefore, the requirements

established by this final rule concerning quotas apply for the second

semi-annual period only.

For the remaining years of the rebuilding plan, the FMP specifies

that F will be reduced to 0.03. This has been initially projected to

result in annual quotas ranging from approximately 2,901,254 lbs (1,316

mt) to 3,198,875 lbs (1,451 mt) until rebuilding is achieved. The

quotas in the FMP were developed assuming, among other things, that

current levels of discard mortality will continue at recent average

annual rates.

Prohibition on Finning

Finning, the act of removing the fins of spiny dogfish and

discarding the carcass, is prohibited. Vessels that land

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spiny dogfish are prohibited from landing fins in excess of 5 percent,

by weight, of the weight of spiny dogfish carcasses landed. Fins may

not be stored on board a vessel after the vessel lands spiny dogfish.

Framework Adjustment Process

The Councils may add or modify management measures through a

framework adjustment process that establishes a streamlined public

review process. The following management measures could be implemented

or adjusted at any time through the framework adjustment process: (1)

Minimum fish size; (2) maximum fish size; (3) gear requirements,

restrictions, or prohibitions, including, but not limited to, mesh size

restrictions and net limits; (4) regional gear restrictions; (5)

permitting restrictions and reporting requirements; (6) recreational

fishery restrictions, including possession limits, size limits, and

season/area restrictions; (7) commercial season and area restrictions;

(8) commercial trip or possession limits; (9) fin weight to carcass

weight restrictions; (10) onboard observer requirements; (11)

commercial quota system, including commercial quota allocation

procedure and possible quota set-asides to mitigate bycatch and to

conduct scientific research or for other reasons; (12) recreational

harvest limit; (13) annual quota specification process; (14) FMP

Monitoring Committee composition and process; (15) description and

identification of essential fish habitat (EFH); (16) description and

identification of habitat areas of particular concern; (17) overfishing

definition and related thresholds and targets; (18) regional season

restrictions (including the option to split seasons); (19) restrictions

on vessel size (length and gross registered tonnage (GRT)) or shaft

horsepower; (20) target quotas; (21) provisions to mitigate marine

mammal entanglements and interactions; (22) regional management; (23)

any management measures currently included in the FMP; and (24)

provisions relating to aquaculture projects.

The framework adjustment process involves the following steps. If

the Councils determine that an adjustment to management measures is

necessary to meet the goals and objectives of the FMP, they will

develop and analyze appropriate management actions over the span of at

least two meetings of each Council. The Councils will provide the

public with advance notice of the availability of the recommended

measures, justification for the measures, and all appropriate analyses,

such as economic and biological analyses. The Councils will allow the

public an opportunity to comment on the proposed framework adjustment

before and during the second Council meeting. After developing

management actions and receiving public comments, the Councils will

make a recommendation approved by a majority of each Council's members,

present and voting, to the Regional Administrator. Adjustments to the

FMP using the framework adjustment process will require the approval of

both Councils. The Councils' recommendation to the Regional

Administrator must include supporting rationale, an analysis of

impacts, and a recommendation to the Regional Administrator on whether

to publish the management measures as a proposed or final rule. The

Councils' recommendation is reviewed by NMFS, and NMFS will determine

whether the measures should be published or not. If NMFS does not

concur with the Councils' recommendation, the Councils will be notified

in writing of the reason for non concurrence.

Spiny Dogfish Monitoring Committee and Annual FMP Review

A Spiny Dogfish Monitoring Committee is established made up of

staff representatives of the Mid-Atlantic and New England Councils, the

NMFS Northeast Regional Office, the NMFS Northeast Fisheries Science

Center, and state representatives. The state representatives will

include any individual designated by an interested state from Maine to

Florida. In addition, the Monitoring Committee will include two non-

voting, ex-officio industry representatives (one each from the Mid-

Atlantic and New England Council regions). The Mid-Atlantic Council

Executive Director or a designee will chair the Committee.

The Spiny Dogfish Monitoring Committee will annually review the

best available data, as specified in 50 CFR 648.230, and recommend to

the Joint Spiny Dogfish Committee a commercial quota and, possibly,

other measures to assure that the target F specified for the

appropriate year in Sec. 648.230(a) for spiny dogfish is not exceeded.

These recommendations will be reviewed, and possibly modified, by the

Joint Spiny Dogfish Committee, which will then forward its

recommendations to the Councils. The Councils will consider the

recommendations of the Joint Spiny Dogfish Committee and then jointly

make their recommendations to the Regional Administrator. The Regional

Administrator will review the recommendations and, if necessary, may

modify the annual quota and other management measures to assure that

the target F will not be exceeded. The Regional Administrator may

modify the recommendations using any of the measures that were not

rejected by both Councils. NMFS will publish a proposed and final rule

in the Federal Register specifying a coastwide commercial quota and

other measures, if any, necessary to assure the appropriate F specified

in Sec. 648.230(a) will not be exceeded.

Permits for Vessels, Operators, and Dealers

Any vessel of the United States that fishes for, possesses, or

lands spiny dogfish in or from the exclusive economic zone (EEZ) must

have been issued and carry on board a valid commercial spiny dogfish

vessel permit. Individuals with commercial vessel permits may only sell

spiny dogfish, at the point of first sale, to a dealer who has a valid

dealer permit issued pursuant to this FMP.

Any individual who operates a vessel that is issued a valid Federal

commercial vessel permit for spiny dogfish must be issued an operator

permit. Any vessel fishing commercially for spiny dogfish will be

required to have at least one operator who holds an operator permit on

board. The operator is accountable for violations of the fishing

regulations, with penalties that may include a permit sanction. During

a permit sanction period, the individual operator may not work in any

capacity aboard a federally permitted fishing vessel.

Any dealer of spiny dogfish must be issued a Federal dealer permit

to receive spiny dogfish for a commercial purpose other than transport

from a vessel possessing a Federal commercial spiny dogfish permit.

Reporting Requirements for Vessels, Dealers and Processors

Owners or operators of vessels issued a Federal spiny dogfish

permit are required to submit vessel trip reports on a monthly basis.

These vessel trip reports are the same as those required under other

Federal FMPs in the Northeast Region.

Dealers with permits issued pursuant to regulations implementing

this FMP are required to submit weekly reports showing the quantity of

all fish purchased and the name and permit number of the vessels from

which the fish were purchased and to report purchases of spiny dogfish

through the Interactive Voice Response (IVR) system utilized for quota-

managed species in the Northeast Region. Dealers also are required to

report annually to NMFS certain employment data. These

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requirements are the same as those established by other Federal FMPs in

the Northeast Region.

Other Measures

This rule authorizes the Regional Administrator to place sea

samplers aboard spiny dogfish vessels.

The total allowable level of foreign fishing is zero; therefore,

foreign fishing vessels may not fish for or retain any spiny dogfish.

Foreign fishing vessels may not fish for nor retain spiny dogfish.

The Regional Administrator, in consultation with the Executive

Directors of the Councils, may exempt any person or vessel from the

requirements of the regulations implementing the FMP in order to

conduct experimental fishing beneficial to the management of the spiny

dogfish resource or fishery. The exemption must be consistent with the

objectives of the FMP, the provisions of the Magnuson-Stevens Act, and

other applicable law. The exemption may not have a detrimental effect

on the spiny dogfish resource and/or fishery, cause any quota to be

exceeded, or create significant enforcement problems.

Comments and Responses

There were 124 written comments received from the public during the

comment period announced in the NOA of the FMP, which ended August 30,

1999. Many of the comments were submitted in support of the comments

offered by a coalition of several conservation groups including the

Center for Marine Conservation, the National Audubon Society, the

Environmental Defense Fund, the Ocean Wildlife Campaign, the Natural

Resources Defense Council, Fish Forever, and the American Oceans

Campaign. Other comments were submitted by the Massachusetts Division

of Marine Fisheries (MDMF), and law firms representing fishing industry

groups and non-fishing entities. All comments received prior to August

30, 1999, were considered in making the decision September 29, 1999, to

partially approve the FMP. All of these comments are addressed here.

There were three comments received after the close of the comment

period for the FMP but during the comment period of the proposed rule,

which closed September 17, 1999. The portions of these comments that

concern the implementation of the approved FMP measures in this final

rule are addressed here.

Comment 1: There were 122 commenters who requested NMFS to reject

the rebuilding target of 180,000 mt spawning stock biomass (SSB)

specified in the FMP. These commenters noted their support for a

rebuilding target of 200,000 mt SSB.

Response: The rebuilding target of 180,000 mt SSB was disapproved

by NMFS because it does not provide for rebuilding to maximum

sustainable yield as required by the Magnuson-Stevens Act. The best

available scientific information identified 200,000 mt SSB as the

appropriate biomass rebuilding target.

Comment 2: There were 122 commenters who expressed support for

specific measures in the FMP. The measures cited were the requirement

to close the fishery upon attainment of the semi-annual quota and the

prohibition on ``finning.''

Response: These measures were approved.

Comment 3: There were 122 commenters who indicated that the Spiny

Dogfish Monitoring Committee should be composed only of technical and

scientific members, without fishing industry representation because the

management process provides for public input through Council,

Committee, and Advisory Panel meetings.

Response: NMFS sees no legal basis to question the specific

membership of the Monitoring Committee. In addition, NMFS notes that

the two industry representatives will be non-voting, ex-officio

industry representatives (one each from the Mid-Atlantic and New

England Council regions). NMFS notes that the intent of the Councils in

including these representatives on the committee is to provide

information regarding the commercial fishery.

Comment 4: One commenter stated that the rebuilding target of

180,000 mt SSB is too high. The commenter contended that the rebuilding

target was determined subjectively using a Ricker dome-shaped stock/

recruitment (S/R) curve and that a Beverton model would be just as

appropriate to determine the rebuilding target.

Response: NMFS disapproved the rebuilding target of 180,000 mt SSB

contained in the FMP because it does not provide for rebuilding to

maximum sustainable yield as required by the Magnuson-Stevens Act. An

Overfishing Definition Review Panel was initially established by the

Councils to develop definitions of overfishing that conform with the

Magnuson-Stevens Act. The Spiny Dogfish Technical Committee, in

developing the FMP, adopted the definition that was developed by the

Overfishing Definition Review Panel. Both of these groups recommended a

rebuilding target of 200,000 mt SSB. Later, upon request by the

Councils, the joint Scientific & Statistical Committee (SSC) reviewed

and discussed the argument in favor of the Beverton model. The SSC

clearly indicated that the Ricker S/R model is appropriate for spiny

dogfish.

Comment 5: A commenter stated that the rebuilding schedule in the

FMP cannot be met without an effective control on discards of spiny

dogfish in fisheries targeting other species. The commenter asserts

that such discards will increase as the spiny dogfish stock rebuilds.

Response: The rebuilding schedule in the FMP presumes that the

proportion of mortality from discards will remain at current levels,

relative to landings, throughout the rebuilding period. The fishery

data indicate that a significant portion of dogfish discards occur in

the directed dogfish fishery, which does not retain dogfish that are

too small for purchase by processors. Since the FMP restricts the

directed fishery, it is presumed the discards from those participants

will decrease beginning in year 2 of the FMP. The Spiny Dogfish

Technical Committee projected that the rebuilding schedule can be

accomplished with minimal impacts on other fisheries. However, if

discards do increase significantly in fisheries targeting other

species, the Councils can develop measures to address discards through

the framework adjustment process or through an FMP amendment.

Comment 6: A commenter indicates that discards in the FMP are noted

as being approximately 4,445 mt, yet the rebuilding projection is

predicated upon discards of 80,000 mt. The letter requests that this

discrepancy be reconciled.

Response: The value of 4,445 mt was obtained using the average of

dogfish discards from 1995 - 1997 based upon sea sampled trips. The

estimate of 80,000 mt, which the commenter notes is embedded in the

rebuilding projection models, is obtained by subtracting 1997 dogfish

landings (approximately 20,000 mt) from the NMFS 1997 survey area-swept

biomass estimate multiplied by the 1997 exploitation rate (100,000 mt).

These values should not be used for comparison, primarily because of

how the survey area-swept biomass estimate is used in the dogfish

assessment (i.e., as an index of abundance), and because of some

uncertainty regarding estimates of discard mortality using sea-sampling

data.

The estimates of swept area biomass were used in a biological

projection model to assess the effects of various alternative

rebuilding strategies. The Technical Committee noted the strong

[[Page 1561]]

correlation between the magnitude of landings when the fishery was

directed for dogfish and the estimates of fishing mortality, and

concluded that reductions in fishing mortality (including discards)

should be proportional to the reduction in reported landings when

directed fishing was reduced. This conclusion implies that discards are

roughly proportional to, rather than independent of, the directed

fishery. The rebuilding strategies were evaluated using trajectories of

fishing mortality to attain the target biomass level. If the target

fishing mortality rates cannot be achieved due to ineffective controls

on discards, then the rebuilding strategy would need to be re-

evaluated. The selected rebuilding strategy utilizes a strong

assumption regarding the effectiveness of landings reductions to

rebuild the resource. Rebuilding strategies that assume no

proportionality between landings and discards would require more

stringent measures and, possibly, a longer rebuilding period.

SAW 26 (1998) discussed estimating dogfish discards using sea

sampling data and concluded that, at the time, it was not possible to

derive reliable annual estimates of dogfish discards for all major

gear/area/target species cells. There are some components of the

fishery in which dogfish discards occur, but are not accounted for in

the sea sampling data calculations. Sea sampling estimates are

provisional, and further work on discard rates and the magnitude of

total discard mortality is warranted. However, it is important to note

that overall dogfish discards are likely substantially lower now, than

in the period prior to 1994, owing to effort control strategies in a

number of fisheries that would normally encounter dogfish.

Comment 7: One comment was received concerning the Regulatory

Impact Review (RIR) portion of the FMP. The commenter was concerned

that minimal analysis was provided in the RIR to determine the economic

impact of implementing a very low quota in year 2 of the rebuilding

schedule. The commenter indicated that the FMP does not consider the

economic impacts of these quota levels, and contends the regulations

will shut down processors who depend upon large quantities of dogfish

to operate. The commenter also indicated that the analysis did not

fully consider the loss of markets overseas.

Response: The RIR indicates that in year 2 ex-vessel gross revenue

declines reach a high of $3,383,903, as landings are reduced to

2,901,780 lbs (1316 mt). Pack-out facility gross revenue declines are

also the greatest in year 2, estimated at $902,374. The FRFA concludes

that these impacts are significant. The FRFA also concludes that in

year 2, with an 89 percent reduction in landings (relative to status

quo), 39 percent of harvesters will realize a reduction in gross

revenue greater than 5 percent.

The FMP does acknowledge some uncertainty regarding the effects of

very low quotas upon markets. Since most spiny dogfish are currently

processed and exported, the implications of a very low total allowable

level of landings (TAL) upon both foreign and domestic markets is

difficult to predict. The RIR indicates that one of two scenarios is

likely to occur. The demand for spiny dogfish by foreign markets may

decline as this species is replaced by more readily available

alternatives, or conversely, a reduced dogfish supply in combination

with a static demand may cause increased dogfish prices and allow for a

limited fishery to exist at low landings levels. The FMP acknowledges

that the first scenario is more likely to occur, but the long-term

effect of a large decline in demand is unknown. The FMP further states

that the ability of processors and harvesters to re-establish export

markets, if they are lost during the rebuilding phase, is unknown.

Comment 8: Three commenters suggested that alternative management

strategies should be considered including establishment of a fishery

harvesting male dogfish only, landing limits (aside from size limits)

on mature females, area or seasonal closures, and gear alternatives.

Response: The Spiny Dogfish Committee considered a wide range of

alternatives, including those suggested by the commenters. Three of the

alternatives that were suggested by the respondents were specifically

included as management options by the Spiny Dogfish Committee during

the FMP development process, but were rejected and not considered to be

significant alternatives to the proposed rule.

On January 22, 1998, at the first meeting of the Joint Spiny

Dogfish Committee, a motion was unanimously adopted that the selective

harvest of males be removed as a management measure in the FMP.

Specific reasons for this decision were not provided in the Councils'

summary minutes, but the Committee did not consider the option to be a

significant feasible alternative at the time. After the FMP was

submitted, on April 21, 1999, the Committee suggested that a male-only

fishery be reexamined. The analysis of this option is not yet

available.

Area and seasonal closures were recommended by the Committee to be

included as management measures in the Public Hearing Document on

January 22, 1998. The Spiny Dogfish Technical Committee discussed these

alternatives, but reached a general consensus on May 8, 1998, that the

effects of area closures would vary greatly from year to year and would

be difficult to quantify due to spatial distribution and environmental

factors affecting spiny dogfish annual migration. Therefore, area and

seasonal closures were not considered to be a significant alternative

to the preferred alternative. In addition, NMFS notes that area

closures alone would, most likely, need to be very large and lengthy to

effectively achieve the large reduction in fishing mortality that is

specified in the FMP. Because of these reasons, the Councils chose not

to develop area closures for inclusion in the FMP.

The Joint Spiny Dogfish Committee and the Mid-Atlantic Council did

request that NMFS implement seasonal closures as interim measures in

January 1999. The New England Council did not support the request for

interim seasonal closures. NMFS ultimately denied the request for

interim seasonal closures, in part because existing multispecies area

closures were projected to reduce dogfish landings perhaps near the

level specified in the FMP.

Gear alternatives, primarily minimum mesh sizes, were considered

early in the FMP development process. The Committee discussed a minimum

mesh size at their first meeting on January 22, 1998. At that meeting,

the Committee voted to include minimum mesh size, gear restrictions,

and gear limits as management options. Later, Council staff indicated

on May 13, 1998, that there was very little available scientific

information on spiny dogfish gear selectivity. An industry advisor

indicated on May 12, 1998, that there should not be a minimum mesh

size. Use of a minimum mesh size would capture larger dogfish and allow

smaller dogfish to escape, thereby contradicting the need to protect

larger females to improve recruitment of the species. A minimum mesh

size is, therefore, not considered to be a significant alternative to

the preferred alternative. The Committee discussion on minimum mesh

size evolved into discussion on minimum fish size. A minimum fish size

was rejected as a preferred option by the Committee on June 8, 1998.

A limit of 80 nets for the gillnet fishery was identified as a

preferred alternative in the Public Hearing Document. This measure was

rejected by the Committee on December 2, 1998.

[[Page 1562]]

A landing limit, or quota, for mature females was not specifically

considered by the Committee. However, the Committee did reject the

selective harvest of males as an option, which is very similar. At the

time, the Committee did not believe that the selective harvest of males

could be implemented in a feasible manner.

If alternative harvest strategies prove to be feasible, the FMP

provides the Councils with framework and amendment processes to

implement them.

Comment 9: One commenter stated that the possibility of a fishery

targeting male dogfish was discussed at a public hearing, but was not

mentioned in the FMP as an option considered by the Councils.

Response: As discussed above, the Joint Spiny Dogfish Committee

considered the possibility of a male-only fishery, but did not

recommend that the Councils pursue it. A similar option was brought

forward, which would allow only the harvest of dogfish within a

particular size range of 27.5 to 32 inches (70 to 81 cm) (a so-called

slot size limit). This measure was discussed because it could protect

larger, mature female dogfish. However, a mechanism to implement a

``slot-limit'' was not identified. Unless gear could be devised to

prevent the capture of dogfish larger or smaller than the slot size,

such dogfish would be discarded and incur some level of mortality. The

results of a projected TAL under this scenario indicated that the

strategy would not shorten the rebuilding period. Thus, the potential

benefits under this management strategy are less than the preferred

alternative.

Comment 10: One commenter suggested that the management measures

should focus on trip limits and area closures, rather than relying upon

a quota to control the spiny dogfish harvest.

Response: The Joint Spiny Dogfish Committee and the Councils did

consider trip limits for the spiny dogfish fishery. They decided

against establishing a coastwide trip limit in conjunction with the

quota system. The analysis conducted by the Councils indicated that a

trip limit specified on an annual basis might be very low. The analysis

indicated roughly 5000 federally permitted vessels from Maine to North

Carolina. Assuming that each vessel makes 100 trips per year, and that

half of those trips land dogfish, there are approximately 250,000 trips

to distribute the quota between. For a quota of 1,316 mt, the

associated trip limit would calculated in this manner would be about 12

pounds (5.5 kg). Conceivably, a trip limit could be higher if the trip

limit were specified for a limited duration. At the time, the Committee

indicated that a trip limit established at one level for all vessels

may not ensure quota availability distributed across all areas, gear

types, and seasons.

As mentioned earlier, area closures were not considered to be a

significant alternative because the movement of dogfish make it

difficult to quantify the effects of closures on the dogfish harvest.

In all likelihood, to achieve the specified mortality reduction

that is necessary to rebuild the dogfish stock, a trip limit would have

to be very low and area closures would have to be large. Nevertheless,

the FMP does allow for these options (area closures and trip limits) to

be implemented under a framework action if the Councils choose this

management option in the future.

Comment 11: One commenter alleged that the Councils did not utilize

the best available scientific information in developing the FMP.

Response: NMFS disagrees. The FMP is based upon the best scientific

information available. Spiny dogfish were last assessed at SAW 26.

Also, the Council's joint SSC reviewed important spiny dogfish

information in 1999, including use of the Ricker stock-recruitment

function, alternative biomass rebuilding targets, and consideration of

ecosystem interactions in establishing the biomass rebuilding target.

Comment 12: One commenter stated that the absence of historical

data resulted in a poor proxy value that was used to establish the

biomass rebuilding target.

Response: NMFS disagrees. Data from 1970 through 1997 were used to

determine the stock/recruitment function and the average spawning

biomass at maximum sustainable yield (Bmsy) proxy. This

represents 27 years worth of data.

Comment 13: One commenter noted that the FMP indicates a recent

shift in dogfish landings from Federal waters to state waters. Because

the states, through the Atlantic States Marine Fisheries Commission

(ASMFC), do not have a management plan, the commenter expressed concern

that there would be an effect on the success of the FMP.

Response: This was recognized as a potential problem during

development of the FMP. As a result, the ASMFC has indicated its

intention to develop a spiny dogfish fishery management plan. The FMP

provides management for vessels that are permitted in the Federal spiny

dogfish fishery. The FMP indicates that landings of spiny dogfish shall

be prohibited by vessels possessing Federal spiny dogfish permits upon

attainment of the semi-annual quota. This prohibition affects catches

of dogfish in state waters by federally permitted vessels because there

is an underlying provision that requires Federal permit holders to

comply with Federal regulations regardless of where their fishery

operations occur. Agreeing to comply in this manner is a condition

precedent to obtaining a Federal fisheries permit. It enhances the

enforceability of the Federal regulations and plays an important role

in achieving the goals of the Magnuson-Stevens Act. The FMP also

contains an annual framework mechanism that will enable the Council to

adjust the spiny dogfish quota to ensure that the fishing mortality

rate specified in the FMP will not be exceeded. The level of landings

from state waters can be considered when establishing the annual quota.

Comment 14: One commenter stated that the analysis of the economic

impact of the status quo option (no management measures) is overstated.

Response: NMFS disagrees. Because recent recruitment has been very

poor, stock projections indicate that if there are no management

measures for the dogfish fishery, landings will continuously decline at

current levels of fishing effort. Fishing at this level will lead to

recruitment failure and, eventually, stock collapse. As landings

decline, annual ex-vessel revenues from dogfish are projected to

decline correspondingly. This was the basis for the economic analysis

of the status quo option.

Comment 15: One commenter expressed concern regarding the inclusion

of two measures on the list of measures that could be implemented by

framework action: (1) The description and identification of essential

fish habitat (EFH), and (2) the description and identification of

habitat areas of particular concern (HAPC). The commenter is concerned

that the framework process would allow changes to these measures to be

published as a final rule, without publication first as a proposed

rule. The commenter states that nonfishing interests lack

representation at Council meetings and, therefore, will not have the

opportunity to comment upon actions regarding EFH. The commenter also

asserts that the framework adjustment process for these two measures

will create inconsistencies in the measures among different NMFS

Regions and the Councils, thereby complicating the EFH consultation

process. The commenter

[[Page 1563]]

requests that the inclusion of these measures be delayed until NMFS EFH

interim final regulations and guidelines are revised.

Response: The framework adjustment process requires the Councils,

when making specifically allowed adjustments to the FMP, to develop and

analyze these actions over the span of at least two Council meetings.

The Councils must provide the public with advance notice of the

meetings, the proposals, and the analysis. Publication of the meeting

agenda in the Federal Register is required. The public is provided an

opportunity to comment on the proposals prior to, and at, the second

Council meeting. Upon review of the analysis and public comments, the

Council may recommend to the Regional Administrator that the measures

be published as a final rule if certain conditions are met. NMFS may

either publish the measures as a final rule, or as a proposed rule if

NMFS or the Council determines that additional public comment is

needed.

The list of frameworkable measures included in the FMP and the

final rule to implement the FMP is inclusive to give the Councils

maximum flexibility to respond quickly to fishery information as it

becomes available and to adjust the regulations accordingly. As such,

modifications to EFH and HAPC can be implemented in a expedited manner

if circumstances warrant, based upon Council and NMFS approval. The

framework adjustment process requires adherence to all applicable law,

and a framework adjustment requires full analysis to evaluate the

impact of the measures. The degree of the required analysis will differ

for each framework adjustment, depending upon the scope of the action

and the degree to which the impacts have been previously analyzed.

Comment 16: One commenter considered the definition for spiny

dogfish EFH to be too broad, vague, and unworkable. The commenter

specifically cited the breadth of EFH designation, noting that EFH

appeared to be designated over the range of the species, and in

estuarine and coastal waters of the states.

Response: The Magnuson-Stevens Act defines EFH as those waters and

substrate necessary to fish for spawning, breeding, feeding, or growth

to maturity. Therefore, the geographic scope of EFH must be

sufficiently broad to encompass the biological requirements of the

species. The information that the Councils used for EFH designation was

primarily species distribution and relative abundance data, which would

be classified as ``level 2'' information under the EFH regulations (50

CFR 600.815). Since the information available was not more specific

(e.g., did not show species production by habitat type), the approach

prescribed by the regulations led to fairly broad EFH designations. The

EFH regulations at 50 CFR 600.10 interpret the statutory definition of

EFH to include aquatic areas that are used by fish, including

historically used areas, where appropriate, to support a sustainable

fishery and the managed species' contribution to a healthy ecosystem,

provided that restoration is technologically and economically feasible.

The Councils' EFH designation for spiny dogfish is consistent with

these requirements.

The specific methodology used by the Councils for designating EFH

was based on the highest relative density of spiny dogfish. This

methodology was developed by scientists at the NMFS Northeast Fisheries

Science Center, and is supported by scientific research and ecological

concepts that show that the distribution and abundance of a species or

stock are determined by physical and biological variables. The

abundance of a species is higher where conditions are more favorable,

and this tends to occur near the center of a species' range. As

population abundance fluctuates, the area occupied changes. At low

levels of abundance, populations are expected to occupy the habitat

that maximizes their survival, growth, and reproduction. As population

abundance increases, individuals move into other available habitats.

NMFS and the Council have developed a management regime designed to

increase the population of spiny dogfish. The broad EFH designation for

spiny dogfish is intended to include habitat essential for the species'

long-term well-being.

Comment 17: One commenter objects to the provision that requires

Federal spiny dogfish vessel permit holders to comply with Federal

regulations when fishing in state waters.

Response: This longstanding provision applies to all regulated

fisheries in the Northwest Atlantic Ocean. It operates as a condition

precedent to getting a Federal fisheries permit. Anyone who elects to

obtain a Federal fisheries permit must agree to abide by the Federal

regulations regardless of where fishing operations are conducted. This

condition enhances the enforceability of the Federal regulations and

plays an important role in achieving the goals of the Magnuson-Stevens

Act. This requirement has been effect in other fisheries for nearly 20

years. See also the response to Comment 13.

Comment 18: One commenter indicated that NMFS should be more

accurate regarding the assessment of impacts of the rebuilding schedule

and low TALs on the dogfish industry. Specifically, the commenter

objects to the statement that low TALs may cause processors to stop

processing dogfish and may cause markets for the species to collapse.

Response: The RIR and the Regulatory Flexibility Analysis conducted

for this action indicate two possible scenarios. First, markets for

dogfish could be completely lost or, second, other market opportunities

could develop. It is acknowledged that the first scenario is the most

likely. However, the low TALs during the rebuilding period could

possibly support a processing sector that is different from the current

industry. For this reason, the RIR does not definitively indicate that

processors will cease dogfish processing.

Comment 19: One respondent suggested that the definition of a

sustainable fishery (in tonnage) should be provided.

Response: The FMP states that a rebuilt stock will allow for a

sustainable fishery at yield levels of approximately 14 million pounds

(6250 mt) per year.

Comment 20: One commenter asked for clarification of the meaning of

``fishing for spiny dogfish'' and asks if the FMP will allow harvesters

to bring dogfish aboard a vessel.

Response: According to the Magnuson-Stevens Act, fishing means any

activity, other than scientific research conducted aboard a scientific

research vessel, that involves: (1) The catching, taking, or harvesting

of fish; (2) the attempted catching, taking, or harvesting of fish; (3)

any other activity that can reasonably be expected to result in the

catching, taking, or harvesting of fish; or (4) any operations at sea

in support of, or in preparation for, any activity described in (1),

(2), or (3) of this definition. These regulations will prohibit any

individual from possessing or landing spiny dogfish harvested from the

EEZ if their vessel is not issued a Federal spiny dogfish permit. Any

vessel with a Federal spiny dogfish permit will be prohibited from

fishing for or possessing spiny dogfish harvested in or from the EEZ,

and prohibited from landing spiny dogfish, after the effective date of

notification in the Federal Register stating that the semi-annual quota

has been harvested and the fishery is closed. It is recognized that a

vessel may inadvertently encounter dogfish and may have them on board

during the process of discarding them. It is a matter for law

enforcement authorities to

[[Page 1564]]

determine the circumstances when such fish are possessed in violation

of the regulations.

Comment 21: Two commenters questioned whether NMFS met its

obligations under National Standard 8 to, in its words, ``consider the

importance of fishing resources to the fishing community and select the

alternative that minimizes the adverse economic impact on the

community.'' The commenters cite the high percentage of spiny dogfish

landings out of total fish landings in Plymouth, MA (96%),

Wachapreague, VA (91%), and Scituate, MA (74%), as evidence of what it

terms the ``high dependency'' of those communities on spiny dogfish

harvesting. The comments also suggest that New Bedford, MA, is highly

dependent on spiny dogfish processing, because it processes a high

percentage of spiny dogfish landings.

Response: National Standard 8 states that ``[c]onservation and

measures shall, consistent with the conservation requirements of this

Act (including the prevention of overfishing and rebuilding of

overfished stocks), take into account the importance of fishery

resources to fishing communities in order to (A) provide for the

sustained participation of such communities, and (B) to the extent

practicable, minimize adverse economic impacts on such communities.''

The commenter's suggestion that NMFS must choose the alternative that

has the least impact on communities does not comport with National

Standard 8. After extensive public input, the Council chose and

recommended to NMFS, and NMFS approved and is implementing, an

alternative that reduced economic impacts to the extent practicable

while meeting the conservation requirements of the Magnuson-Stevens Act

to stop overfishing and rebuild the overfished stock, and providing for

long-term economic gains. The FMP states that the impacts associated

with rebuilding the stock will be more severe if rebuilding is delayed.

Nonetheless, recognizing the impacts of this FMP, the Council worked

closely with both harvesters and processors to include an ``exit

fishery'' in the FMP, as implemented by these regulations, to allow the

industry time to modify its activities before the landings were reduced

by the rebuilding program. At the same time, the Council decided, based

on stock condition of spiny dogfish (low abundance of males and

females, especially females of spawning age and those soon to reach

maturity), that an exit fishery lasting longer than a year was ill-

advised and that harvest of spiny dogfish needed to be reduced

drastically by year 2 to protect females nearing maturity.

NMFS recognizes that some participants in the commercial fishing

industry, namely, some fishermen and some processors, will be adversely

affected by the conservation measures in the FMP in the short-term.

NMFS also recognizes that some smaller communities involved in the

dogfish fishery might be disproportionately affected by the

conservation measures. The Council has made these points very clear in

the FMP. While individual processing plants and fishing vessels may

process or harvest spiny dogfish exclusively, none of the communities

mentioned are engaged in the spiny dogfish fishery to meet social and

economic needs of the community. Two of the communities, Plymouth and

Scituate, are part of the suburban areas of a large city and are

dependent on and substantially engaged in the businesses of the

metropolitan area, as bedroom communities and tourist areas. The other

community, Wachapreague, has significant fishing activities, both

commercial and recreational fishing, but also attracts retirees and

tourism, and is substantially dependent on these two sectors for

economic activity. New Bedford is a fishing community with about 25

vessels landing dogfish and a processing plant handling catches from

these vessels and other ports. The multispecies nature of the fishing

industry in New Bedford and the diversification of the other

communities' economies in non-fishing activities is such that closing

the directed fishery for spiny dogfish would affect these communities

only to a degree.

Comment 22: One commenter stated that dogfish are abundant and that

biomass is at or near its historic high, implying that rebuilding is

not necessary.

Response: The total dogfish biomass is currently comparable to

recent high levels of abundance. However, the current age structure has

been seriously distorted by the selective removal of mature females by

the fishery. Because of the lack of mature females, recruitment is low

and the stock will collapse if no action is taken. The management

measures in the FMP will reduce fishing mortality rates to allow the

population to return to equilibrium at a lower level of abundance than

is currently observed. Preliminary projections, calculated with a

spawning stock biomass of 200,000 mt, indicate that the total long-term

biomass of a sustainable dogfish fishery would be about 416,000 mt,

which is actually lower than the current total biomass of 515,513 mt.

Comment 23: One commenter expressed concern that the 5-year

rebuilding plan and the 180,000 mt SSB rebuilding target in the FMP

were not given adequate consideration during the public hearing

process. The commenter stated that the 180,000 mt SSB rebuilding target

was adopted by the Councils despite the fact that the SSC had

previously stated that 200,000 mt SSB was the appropriate rebuilding

target.

Response: NMFS has disapproved the 180,000 mt SSB rebuilding

target, because it does not comply with the Magnuson-Stevens Act.

Comment 24: One commenter stated that the Councils failed to

consider the impacts of a rebuilt dogfish stock on other managed

fisheries, especially with regards to predation and other ecosystem

interactions.

Response: NMFS disagrees. The Councils specifically requested the

SSC to evaluate estimates of Bmsy for spiny dogfish within an

ecological context. The SSC found no compelling reason to consider

predation by spiny dogfish on other commercially valuable groundfish in

determining its Bmsy. The SSC indicated that changing the SSB

rebuilding target to as low as 150,000 mt would not significantly

effect predation on groundfish and have a minimal effect on groundfish

rebuilding. The stock of spiny dogfish is a very small part of the

ecological community, and because of its opportunistic predatory habits

it may have minimal direct and indirect effects on the relationships of

different species. It was recognized that dogfish do have some effect

on other species through predation and competition. However, the SSC

stated that trying to determine pairwise relationships between one

species and a series of others is currently not feasible.

Comment 25: Several commenters requested NMFS to keep track of

landings to see if 10,000 mt is exceeded in the first year.

Response: NMFS will monitor the quota, as required by the FMP.

However, NMFS notes that for the period May 1-February 10, 2000

monitoring may be incomplete because the mandatory reporting provision

will not be in place. NMFS must also rely on state agencies for data

from state water fisheries.

Changes From the Proposed Rule

In the definition for Spiny Dogfish Monitoring Committee, minor

editorial changes have been made for clarity.

In Sec. 648.4(a)(11) wording has been added to clarify that permits

are

[[Page 1565]]

required for vessels fishing commercially.

In Sec. 648.4(b) wording has been added to clarify that

restrictions on landings take effect as of the effective date of the

notification of a fishery closure in the Federal Register.

In Sec. 648.5(a) a reference to the recently published 50 CFR part

697 has been added to indicate that operator permits issued under that

part satisfy the permitting requirements of this section.

In the final rule, two sentences in Sec. 648.6(a) have been

combined for the purpose of brevity. References to regulations not yet

in effect have been deleted.

In Sec. 648.7(b), the paragraph headings for paragraph (b) and

(b)(1)(i) have been revised to reflect that both owners and operators

are responsible for reporting.

In Sec. 648.11, paragraph (b) is revised to be consistent with the

language in paragraph (a) that clarifies that vessels chosen to carry

sea samplers/observers are required to do so, unless exempted by the

Regional Administrator. The original language in paragraphs (a) and (b)

used the word ``request'' even though each paragraph as a whole

indicated that carrying sea samplers was a requirement, not an option.

Additional editorial corrections have been also made.

Sec. 648.14(a)(119), the phrase ``the owner or operator of a

vessel'' has been changed to ``any person on board a vessel'' to make

it clear that it is illegal to receive spiny dogfish from anyone on

board a vessel with a spiny dogfish permit unless the purchaser/

receiver has a spiny dogfish dealer permit.

Sec. 648.14(aa)(2), the prohibition on vessels from possessing

spiny dogfish harvested from the EEZ after the date by which the semi-

annual quota has been harvested and on which the EEZ is closed to the

harvest of spiny dogfish, as announced in a notification published in

the Federal Register has been revised to also prohibit fishing for

spiny dogfish after that date. This is to better reflect the intent of

the FMP. There are additional editorial corrections made within the

section.

In Sec. 648.230, the term ``the Regional Administrator'' has been

replaced with ``NMFS'' to indicate that the agency as whole is

responsible for review and publication of the regulations. Other, minor

editorial corrections are also made.

In Sec. 648.230(b), the portion of a sentence that specified the

semi-annual quota periods has been deleted, because that information is

specified in Sec. 648.230(d)(1).

In Sec. 648.230(b) and (c), the paragraphs have been revised to be

consistent with the final sentence in Sec. 648.230(c), which makes it

clear that the Monitoring Committee and the Joint Spiny Dogfish

Committee are to recommend a quota and other measures necessary to

assure that the fishing mortality rate specified in the FMP and

Sec. 648.230(a) for the upcoming fishing year will not be exceeded. The

language is also revised to note that management measures listed in

paragraph (b) are not restricted to those shown.

In Sec. 648.230(c), the final regulations now specify that the

Joint Spiny Dogfish Committee is a joint committee of the Councils. The

portion of a sentence that specified the semi-annual quota periods has

been deleted, because this information is already specified in

648.230(d)(1). The last four sentences are revised to clarify the

Councils' and NMFS responsibilities in establishing annual fishing

measures.

In Sec. 648.230(d)(2), the paragraph has been revised to remove

closure procedures and effects from the paragraph because that

information is specified in Sec. 648.231.

In Sec. 648.231, the paragraph has been revised to clarify closure

procedures and to more accurately indicate the prohibited activities

during a closure. Prohibited activities include fishing for or

possessing spiny dogfish in the EEZ, landing spiny dogfish by vessels

issued a Federal spiny dogfish permit, and purchasing spiny dogfish

from vessels issued a Federal spiny dogfish permit by dealers issued a

Federal dogfish dealer permit. These have been standard prohibitions

for closures in Federal fishery regulations.

Other changes from the proposed rule have been made at

Secs. 648.1(a), 648.2, 648.4(a), 648.12, and 648.14 to reflect changes

necessary because of the monkfish final rule becoming effective between

the dates of publication of the proposed and final spiny dogfish rules.

Minor editorial changes have been made in Secs. 648.231 and

648.237.

Throughout the regulations references to bluefish, for which the

regulations are not yet effective, have been deleted.

Classification

The Administrator, Northeast Region, NMFS, determined that the FMP,

except for the disapproved measure, is necessary for the conservation

and management of the spiny dogfish fishery and that it is consistent

with the Magnuson-Stevens Act and other applicable laws.

The Councils prepared a FEIS for this FMP. The EPA published a

notice of availability (NOA) for the Draft EIS at 63 FR 54476, October

9, 1998, and a NOA for the FEIS at 64 FR 45541, August 20, 1999. A

notice of availability for the FMP, which contains the FEIS, was

published at 64 FR 34759, June 29, 1999. The management measures will

have long-term positive impacts on the affected human environment.

This final rule has been determined to be not significant for

purposes of E.O. 12866.

The proposed rule to implement the FMP was published in the Federal

Register on August 3, 1999, (64 FR 42071). A copy of the IRFA analysis

is available from the Councils (see ADDRESSES). The Final Regulatory

Flexibility Analysis (FRFA) incorporates the IRFA and its findings, the

responses to public comments that mentioned possible effects of the FMP

on small entities, and the following discussion, which is based on the

IRFA. No changes were made in response to comments on the economic

impact of the rule.

Domestic landings of spiny dogfish increased rapidly from 1989

through 1996, but began a decline in 1997. In 1998 NMFS declared the

stock to be overfished. Without any management measures (status quo),

landings in 2001 would be expected to decline to 21.3 million lb (9,662

mt), which is less than half of what they were in 1997. Projections

indicate that an unregulated dogfish fishery would deplete the adult

spawning portion of the stock by about 85 percent in 10 years. Landings

would be expected to decline continuously due to the overfished

condition of the stock. Nominal spiny dogfish ex-vessel revenues are

correspondingly projected to decline. Eventually, the spawning stock

would decline to a level that would lead to recruitment failure and

stock collapse. Due to the slow growth and low fecundity of spiny

dogfish, it would then take decades to rebuild the stock. The

continuation of an unregulated fishery for spiny dogfish is, therefore,

contrary to the Magnuson-Stevens Act, which requires remedial action

through appropriate management measures for species designated as

overfished. This final rule implements measures for spiny dogfish to

prevent overfishing, rebuild the stock, and comply with other

provisions of the Magnuson-Stevens Act.

The categories of small entities likely to be affected by this

action are commercial vessel owners harvesting spiny dogfish and

dogfish processors. The IRFA estimates that this action is expected to

affect 595 vessels and 3 processors that meet the criteria for small

entities.

[[Page 1566]]

Impacts of Permitting and Reporting Requirements

Under all of the alternatives, any vessel fishing commercially for

spiny dogfish must have a valid open access Federal spiny dogfish

vessel permit issued by NMFS. It is estimated that 87 percent of the

595 commercial vessels landing spiny dogfish in 1997 from Federal

waters already possess a NMFS permit for at least one or more fisheries

other than spiny dogfish. Therefore, the other 13 percent

(approximately 77 vessels) will be required to apply for a Federal

spiny dogfish vessel permit using the initial application form. The

remainder will use the renewal form and will not likely incur an

additional burden. It is estimated that the owner/operators of all 77

vessels will apply for a spiny dogfish permit. The burden costs to the

public for the permit application consist only of the time required to

complete an application (.5 hr), at a hourly rate of $15/hour. The

total burden cost to the public will be $578 ($7.50 per vessel X 77

vessels).

The expected burden cost to the public for commercial logbook

submissions will be $1,540 ($20 per vessel per year X 77 vessels).

In addition, the operators of these 77 vessels will be required to

apply for a Federal spiny dogfish operator permit using the initial

application form. The remainder would use the renewal form and will not

likely incur an additional burden. The burden costs to the public for

the operator permit consist only of the time required to complete an

application (1 hr), at a hourly rate of $15/hour. The total burden cost

to the public will be $1,155 ($15 per operator X 77 operators).

It is expected that there will be approximately 15 new applicants

for dealer permits. The cost to the public for dealer permits will be

$18.75 ($1.25 per applicant X 15 applicants). Thereafter, the public

annual estimate of submitting weekly reports will be $26 per dealer per

year. Thus, total cost for all new dealers (who do not currently have

permits) for permitting requirements in the first year is $409 ($1.25 +

$26 X 15 dealers).

Non-Preferred Alternative to Permitting and Reporting Requirements

The alternative to the permitting and reporting requirements is the

status quo, or no regulation. Without these requirements, a Federal

quota system would be unmanageable, as landings information would not

be complete and closures would be unenforceable. Because the status quo

option would not meet the requirements of the Magnuson-Stevens Act,

this alternative was rejected.

Impacts of Prohibition on Finning

This rule prohibits the practice of finning spiny dogfish (cutting

off and retaining the fins and discarding the carcass). Fishing

industry representatives testified that this practice occurs only under

extremely limited circumstances in the fishery; therefore, the

prohibition would have a negligible effect on the current fishery. The

provision is designed to prevent the practice in a reduced fishery and,

thereby, reduce waste of the spiny dogfish resource.

Non-Preferred Alternative to Prohibition on Finning

The alternative to the prohibition of finning is the status quo, or

no regulation. The practice is already banned in other shark fisheries

in the management area; therefore, not having a prohibition in this

fishery could complicate enforcement by allowing fishermen to claim

that fins from other sharks were from dogfish. Due to the strong

support for prohibiting finning from all sectors and the insignificant

economic effects of the prohibition, the status quo alternative was

rejected.

Impacts of the Preferred Spiny Dogfish Rebuilding Schedule

The impacts of the preferred rebuilding schedule were analyzed

presuming a 180,000 mt rebuilding target. While this rebuilding target

has been disapproved, the management program remains intact. The

analyzed impacts are still relevant in the near-term, and will be

updated as necessary when the Councils submit a revised rebuilding

target.

The intent of the Councils is to rebuild the spawning stock biomass

of the spiny dogfish stock to levels that will support the fisheries at

long-term, sustainable levels. The preferred rebuilding schedule

identified in the FMP is expected to eliminate overfishing and rebuild

the spiny dogfish stock in the shortest possible time, while still

allowing for a 1-year ``exit fishery.'' The 1-year ``exit fishery'' of

22 million lb (10,006 mt) includes 9,286,935 lb (4212.5 mt) for the

semi-annual period from November 1, 1999 - April 30, 2000, and will

allow participants to gradually reduce their activity in the directed

spiny dogfish fishery. This approach was chosen to reduce the impacts

of the rebuilding program on both the harvesting and processing sectors

of the industry, during the first 6 months. Beginning May 1, 2000,

landings will be reduced to 2.9 million lb (1,316 mt) and then

maintained at under 4.4 million lb (2,000 mt) until the target biomass

is reached. The analysis for the preferred alternative presented here,

and in the FMP, was developed with an assumption that the fishery would

rebuild in 2004.

Based upon projected status quo landings in relation to proposed

total allowable commercial landings or TALs, ex-vessel gross revenue

declines would reach a high of $3,383,903 in year two as landings are

reduced to 2,901,780 lb (1,316 mt). Pack-out facility gross revenue

declines would be the greatest ($902,374) in year two. Gross revenue

losses after year two would then decline as projected landings under

the preferred alternative increase, while landings under the status quo

model decrease. Nominal gross ex-vessel revenues would exceed status

quo ex-vessel revenues in 2004, assuming that rebuilding is achieved.

Cumulative ex-vessel revenues would exceed status quo in 2016. More

appropriately, cumulative gross ex-vessel revenues in real terms at a 7

percent discount rate would only exceed status quo in 2029.

In year one of the preferred rebuilding schedule, there would be a

30-percent reduction in landings compared with the status quo levels.

This reduction would cause a decrease in gross revenues of greater than

5 percent for approximately 149 vessels (using 1997 dealer and weighout

data) and for 2 processors. In year two, with an 89-percent reduction

in landings (relative to the status quo levels), 232 harvesters would

have a gross reduction of revenues greater than 5 percent (based on

1997 landings and dealer data). The IRFA also concluded that it is

possible that the action will result in at least 12 spiny dogfish

harvesters ceasing operations.

Processors have indicated that their ability to process spiny

dogfish in a cost-effective manner is dependent upon volume. This

action, which greatly reduces landings during the rebuilding period,

could, therefore, result in the elimination of dogfish processing

operations for the remaining 3 dogfish processors and the potential

loss of approximately 200 jobs.

An area of uncertainty is the effect of low TALs upon markets. The

low TALs may cause processors to cease processing spiny dogfish and

cause established U.S.-based markets for this species to collapse.

Since most spiny dogfish are currently processed and exported, the

implications of this action upon both foreign and domestic markets are

hard to predict. The demand for spiny dogfish by foreign markets may

[[Page 1567]]

decline as dogfish is replaced by a more readily available alternative,

or, conversely, reduction of supply in combination with static demand

could cause dogfish prices to rise and allow for a limited fishery to

exist with landings at low levels. Industry members indicate that

demand is likely to decline. The ability of processors and harvesters

to re-establish markets, if they ceased operations earlier, is unknown.

If markets for spiny dogfish cease, there would be no processors to

whom harvesters could sell their catch. Conversely, if prices rise,

harvesters would be able to receive higher ex-vessel prices for spiny

dogfish (assuming a market exists). Even if prices increase, due to the

extremely low TALs, it would probably not mitigate the economic impacts

on the processors and harvesters caused by the preferred alternative.

Given low TALs, the harvesting, processing, and support industries are

not likely to see cumulative benefits for at least 15 years.

While the short and intermediate effects of the FMP are negative

for those involved in the fishery, the long-term effects are likely to

be positive. Projections indicate that an unregulated dogfish fishery

would deplete the adult spawning portion of the stock by about 85

percent within 10 years. This would lead to a stock collapse. Yields

would be expected to plummet, and a rebuilding program after a stock

collapse is projected to take decades, due to the life history of

dogfish. This action will rebuild the adult spawning stock biomass and,

then, allow for a sustainable fishery in future years.

Impacts of Alternatives to the Preferred Rebuilding Schedule Considered

but Rejected

Other alternatives to the preferred rebuilding schedule were

considered, but either did not meet the requirements of the Magnuson-

Stevens Act, or did not provide long-term economic benefits greater

than those of the proposed action.

Non-Preferred Alternative Rebuilding Schedule 1 would reduce

landings to a consistent level of approximately 5.5 million lb (2,500

mt) until 2003 when the stock is assumed to be rebuilt, and landings

reach a level of 14 million lb (6,350 mt). Relative to status quo,

gross revenue declines would reach a high of $3,067,000 in year two

(2000). Cumulative gross revenues would exceed status quo levels in

2015. Similarly, relative to status quo, gross revenue declines for

pack-out facilities would reach a high of $817,000 in year two (2000).

Impacts would then decline afterwards as projected landings increase.

At approximately 5.5 million lb (2,500 mt), a directed fishery for

spiny dogfish is unlikely, and as noted in discussing the preferred

alternative, the effect that an incidental dogfish fishery would have

on markets is difficult to predict. This option would not provide for a

1-year ``exit'' fishery; therefore, it would have imposed greater

economic burdens on fishery participants in the short term. In

addition, this alternative's long-term economic benefits would not

exceed those of the preferred alternative.

Non-Preferred Alternative Rebuilding Schedule 2 would reduce

landings to 22.5 million lb (10,206 mt) in year one, to 11.3 million lb

(5,125 mt) in year two, and then limit landings to a level that would

ensure the rebuilding of the stocks within a 10-year time-frame.

Relative to status quo, gross revenue declines would reach a high of

$2,778,962 in year three (2001). Cumulative gross revenues would exceed

status quo levels in 2020. Similarly (also relative to status quo),

gross revenue declines for pack-out facilities would reach a high of

$741,056 in year three (2001). Impacts would then decline afterwards as

projected landings increase. Unlike the preferred alternative, this

alternative does not provide for a rebuilt stock until 2009. Similarly,

although the second year of this option provides for a higher TAL than

the preferred, the long-term economic outlook for the preferred

alternative is superior. Given the higher TAL in year two of this

option, there is a possibility that, in the short-term, this option

could provide some cost savings by not forcing harvesters into other

fisheries as quickly as the preferred alternative. However, the cost

data needed to support this conclusion are currently unavailable. The

analysis examined gross revenues, and the long-term benefits of the

preferred alternative exceeded this alternative.

Non-Preferred Alternative Rebuilding Schedule 3 would allow for a

reduction in dogfish landings to 13.2 million lb (5,988 mt) in 1999 and

8.8 million lb (3,992 mt) in 2000. Landings until 2004 would be reduced

to a level which allows the stock to be rebuilt in 5 years. Year one

gross ex-vessel revenue declines would be $2,631,447 and reach a high

of $2,697,000 in year three (2001), compared to the status quo revenue

levels. These impacts would decline throughout the time-span of the FMP

as projected landings increase. Cumulative gross revenues would exceed

status quo levels in 2015. This alternative would not provide for an

economically feasible exit fishery compared to the preferred

alternative; therefore, it was not favored by members of the fishing

industry. In addition, this alternative's long-term economic benefits

do not exceed those of the preferred alternative.

Alternatives four, five, and six would reduce F to levels that are

necessary to rebuild spiny dogfish stocks within a 15-, 20-, and 30-

year time frame, respectively. These options were rejected early in the

FMP development process because the analysis indicated that spiny

dogfish did not meet the necessary Magnuson-Stevens Act criteria that

allow rebuilding to exceed 10 years. These options would spread

economic impacts over a greater time period, but would not meet the

requirements of the Magnuson-Stevens Act.

Alternative seven would establish a system of uniform trip limits

in conjunction with an annual quota. In the second year of the

rebuilding program, the projected trip limits per vessel could

potentially be as low as 12 lb (5.4 kg) per trip, assuming a TAL of 2.9

million lb (1,315 mt) and 250,000 trips. Given that the average

commercial fishing trip in 1997 landed 3,116 lb (1,413 kg), this low

trip limit would preclude a viable directed fishery. There could be

fewer participants involved in the commercial spiny dogfish fishery, an

occurrence that would allow for larger trip limits. However, a uniform

trip limit system would not necessarily ensure quota availability

distributed across all geographic areas, gears, and seasons. This

management option was rejected because positive long-term benefits

would be limited.

Alternative eight would establish a minimum size limit for spiny

dogfish that corresponds to the length at which 50 percent of female

spiny dogfish are sexually mature (32 in (81 cm)). Alternative nine

would establish a minimum size limit for spiny dogfish that corresponds

to the length at which 100 percent of female spiny dogfish are sexually

mature (36 in (91 cm)). These alternatives would have little economic

impact on recreational fishing because most recreationally caught spiny

dogfish are released after capture. However, there would likely be

negative short-term economic impacts on the commercial harvesting

sector through reduced landings because very few dogfish harvested by

commercial fishermen currently achieve the proposed minimum sizes.

These negative economic impacts would likely extend to processors and

dealers because of reduced landings of spiny dogfish.

[[Page 1568]]

Alternative ten would allow only the harvest of spiny dogfish

between 27.5 in (70 cm) to 32 in (81 cm) in length (a ``slot size''

limit). The results of projected TALs under this scenario indicate that

this strategy would result in lower overall yields and not in reducing

the rebuilding period. Thus, the potential benefits under this scenario

would be less than the preferred alternative for the same time period.

The eleventh and twelfth alternatives would distribute the annual

quota on a quarterly or bi-monthly basis. The effects of these

alternatives would depend largely upon the distributional system set up

by the Councils. The further sub-allocation of quotas could provide

long-term benefits through a rebuilt spiny dogfish fishery. As the

industry is presently structured, there are insufficient fish to make

processing operations (which depend on volume) economically viable.

Additionally, administrative logistics associated with implementing a

quarterly or bimonthly quota monitoring system are expected to be

formidable. For these reasons, these alternatives were rejected.

Steps Taken to Minimize the Significant Impact on Small Entities

Several steps have been taken to minimize the economic impact on

small entities. First, the primary means of initially minimizing the

effect of this action on small entities was to provide the 1-year

``exit fishery'' to allow participants to gradually reduce their

activity in the first year of the plan. Second, the semi-annual quota

allocates the catch to minimize the impact on any one portion of the

fishery. Third, the FMP and regulations incorporate a wide range of

framework actions that will allow the Councils and NMFS to tailor the

fishery to minimize impacts on small entities over the life of the FMP.

Finally, the rebuilding strategy for the fishery protects a large class

of juvenile female spiny dogfish to allow them to mature and contribute

to the stock quickly, as opposed to a rebuilding strategy that could

take decades if that large class of juvenile females was not protected.

A copy of this analysis is available from the Councils (see

ADDRESSES).

Paperwork Reduction Act (PRA)

Notwithstanding any other provision of law, no person is required

to respond to, nor shall a person be subject to, a penalty for failure

to comply with a collection of information subject to the requirements

of the PRA unless that collection of information displays a currently

valid Office of Management and Budget (OMB) control number.

This final rule contains eight new collection-of-information

requirements subject to the Paperwork Reduction Act. The collection of

this information has been approved by OMB, and the OMB control numbers

and public reporting burden are listed as follows:

Processed Products Family of Forms, OMB Control Number 0648-0018,

(2 minutes/response).

Northeast Region Federal Fisheries Permit Family of Forms, OMB

Control Number 0648-0202 (vessel permit - 30 minutes/response; dealer

permit - 5 minutes/response; operator permit - 1 hour/response).

Northeast Region Logbook Family of Forms, OMB Control Number 0648-

0212 (5 minutes/response).

Northeast Region Dealer Purchase Reports, OMB Control Number 0648-

0229 (IVR - 4 minutes/response; form 88-30 - 2 minutes/response).

Northeast Region Vessel Identification, OMB Control Number 0648-

0350 (45 minutes/response).

The response times shown include the time for reviewing

instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information. Send comments regarding these burden

estimates or any other aspect of the data requirements, including

suggestions for reducing the burden, to NMFS and to OMB (see

ADDRESSES).

Endangered Species Act

A formal Section 7 consultation under the Endangered Species Act

was initiated for the FMP. In a biological opinion dated August 13,

1999, the Assistant Administrator for Fisheries determined that fishing

activities conducted under the FMP and its implementing regulations may

adversely affect but are not likely to jeopardize the continued

existence of any endangered or threatened species under the

jurisdiction of NMFS or result in the destruction or adverse

modification of right whale critical habitat.

Marine Mammal Protection Act

Potential adverse impacts to marine mammals resulting from fishing

activities conducted under this rule are discussed in the FEIS, which

focuses on potential impacts to harbor porpoise, right whales, and

humpback whales.

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: January 5, 2000.

Penelope D. Dalton,

Assistant Administrator for Fisheries, 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

1. The authority citation for part 648 continues to read as

follows:

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

Subpart A--General Provisions

2. In Sec. 648.1, paragraph (a) is revised to read as follows:

Sec. 648.1 Purpose and scope.

(a) This part implements the fishery management plans (FMPs) for

the Atlantic mackerel, squid, and butterfish fisheries (Atlantic

Mackerel, Squid, and Butterfish FMP); Atlantic salmon (Atlantic Salmon

FMP); the Atlantic sea scallop fishery (Atlantic Sea Scallop FMP

(Scallop FMP)); the Atlantic surf clam and ocean quahog fisheries

(Atlantic Surf Clam and Ocean Quahog FMP); the Northeast multispecies

and monkfish fisheries (NE Multispecies FMP) and (Monkfish FMP); the

summer flounder, scup, and black sea bass fisheries (Summer Flounder,

Scup, and Black Sea Bass FMP); the Atlantic bluefish fishery (Atlantic

Bluefish FMP); and the spiny dogfish fishery (Spiny Dogfish FMP). These

FMPs and the regulations in this part govern the conservation and

management of the above named fisheries of the Northeastern United

States.

* * * * *

3. In Sec. 648.2, the definitions for ``Council'' and ``Councils''

are revised and the definition for ``Spiny Dogfish Monitoring

Committee'' is added in alphabetical order to read as follows:

Sec. 648.2 Definitions.

* * * * *

Council means the New England Fishery Management Council (NEFMC)

for the Atlantic sea scallop and the NE multispecies fisheries, or the

Mid-Atlantic Fishery Management Council (MAFMC) for the Atlantic

mackerel, squid, and butterfish; the Atlantic surf clam and ocean

quahog; the summer flounder, scup, and black sea bass fisheries; the

Atlantic bluefish fishery; and the spiny dogfish fishery.

Councils with respect to the monkfish fishery and spiny dogfish

fishery means the New England Fishery Management

[[Page 1569]]

Council (NEFMC) and the Mid-Atlantic Fishery Management Council

(MAFMC).

* * * * *

Spiny Dogfish Monitoring Committee means a committee made up of

staff representatives of the MAFMC, NEFMC, the NMFS Northeast Regional

Office, the Northeast Fisheries Science Center, and the states, as well

as two ex-officio industry members (one from each Council

jurisdiction). The MAFMC Executive Director or a designee chairs the

committee.

* * * * *

4. In Sec. 648.4, paragraph (a)(10) is reserved, paragraph (a)(11)

is added, and the first 4 sentences of paragraph (b) are revised to

read as follows:

Sec. 648.4 Vessel and individual commercial permits.

(a) * * *

(10) [Reserved].

(11) Spiny dogfish vessels. Any vessel of the United States that

commercially fishes for, possesses, or lands spiny dogfish in or from

the EEZ must have been issued and carry on board a valid commercial

spiny dogfish vessel permit.

(b) Permit conditions. Any person who applies for a fishing permit

under this section must agree as a condition of the permit that the

vessel and the vessel's fishing activity, catch, and pertinent gear

(without regard to whether such fishing activity occurs in the EEZ or

landward of the EEZ, and without regard to where such fish or gear are

possessed, taken or landed), are subject to all requirements of this

part, unless exempted from such requirements under this part. All such

fishing activities, catch, and gear will remain subject to all

applicable state requirements. Except as otherwise provided in this

part, if a requirement of this part and a management measure required

by a state or local law differ, any vessel owner permitted to fish in

the EEZ for any species managed under this part must comply with the

more restrictive requirement. Owners and operators of vessels fishing

under the terms of a summer flounder moratorium, scup moratorium, or

black sea bass moratorium permit, or a spiny dogfish permit must also

agree not to land summer flounder, scup, black sea bass, or spiny

dogfish, respectively, in any state after the effective date of a

notification published in the Federal Register stating that the

commercial quota for that state or period has been harvested and that

no commercial quota is available for the respective species. * * *

* * * * *

5. In Sec. 648.5, paragraph (a) is revised to read as follows:

Sec. 648.5 Operator permits.

(a) General. Any operator of a vessel fishing for or possessing sea

scallops in excess of 40 lb (18.1 kg), NE multispecies, monkfish,

mackerel, squid, butterfish, scup, black sea bass, bluefish, or spiny

dogfish harvested in or from the EEZ, or issued a permit for these

species under this part, must have been issued under this section and

carry on board a valid operator's permit. An operator's permit issued

pursuant to parts 649 or 697 of this chapter satisfies the permitting

requirement of this section. This requirement does not apply to

operators of recreational vessels.

* * * * *

6. In Sec. 648.6, paragraph (a) is revised to read as follows:

Sec. 648.6 Dealer/processor permits.

(a) General. All NE multispecies, monkfish, sea scallop, summer

flounder, surf clam, ocean quahog, mackerel, squid, butterfish, scup,

black sea bass, and spiny dogfish dealers, and surf clam and ocean

quahog processors must have been issued under this section and have in

their possession a valid permit for these species.

* * * * *

7. In Sec. 648.7, paragraphs (a)(1)(i), (a)(3)(i), (b) heading, and

(b)(1)(i) are revised to read as follows:

Sec. 648.7 Recordkeeping and reporting requirements.

(a) * * *

(1) * * *

(i) All summer flounder, scup, black sea bass, Atlantic sea

scallop, NE multispecies, monkfish, Atlantic mackerel, squid,

butterfish, or spiny dogfish dealers must provide: Dealer's name and

mailing address; dealer's permit number; name and permit number or name

and hull number (USCG documentation number or state registration

number, whichever is applicable) of vessels from which fish are landed

or received; trip identifier for a trip from which fish are landed or

received; dates of purchases; pounds by species (by market category, if

applicable), price per pound by species (by market category, if

applicable); or total value by species (by market category, if

applicable); port landed; and any other information deemed necessary by

the Regional Administrator. The dealer or other authorized individual

must sign all report forms. If no fish are purchased during a reporting

week, no written report is required to be submitted. If no fish are

purchased during an entire reporting month, a report so stating on the

required form must be submitted.

* * * * *

(3) * * *

(i) Summer flounder, scup, black sea bass, Atlantic sea scallop, NE

multispecies, monkfish, Atlantic mackerel, squid, butterfish, and spiny

dogfish dealers must complete the ``Employment Data'' section of the

Annual Processed Products Report; completion of the other sections of

that form is voluntary. Reports must be submitted to the address

supplied by the Regional Administrator.

* * * * *

(b) Vessel owners or operators.

(1) * * *

(i) Owners or operators of vessels issued a summer flounder, scup,

black sea bass, Atlantic sea scallop, NE multispecies, monkfish

Atlantic mackerel, squid, butterfish, or spiny dogfish permit. The

owner or operator of any vessel issued a permit for the species listed

in the preceding sentence must maintain on board the vessel and submit

an accurate daily fishing log report for all fishing trips, regardless

of species fished for or taken, on forms supplied by or approved by the

Regional Administrator. If authorized in writing by the Regional

Administrator, a vessel owner or operator may submit reports

electronically, for example by using a VMS or other system. At least

the following information, and any other information required by the

Regional Administrator, must be provided: Vessel name; USCG

documentation number (or state registration number, if undocumented);

permit number; date/time sailed; date/time landed; trip type; number of

crew; number of anglers (if a charter or party boat); gear fished;

quantity and size of gear; mesh/ring size; chart area fished; average

depth; latitude/longitude (or loran station and bearings); total hauls

per area fished; average tow time duration; pounds by species (or

count, if a party or charter vessel) of all species landed or

discarded; dealer permit number; dealer name; date sold; port and state

landed; and vessel operator's name, signature, and operator's permit

number (if applicable).

* * * * *

8. In Sec. 648.11, paragraphs (a) and (e) are revised to read as

follows:

Sec. 648.11 At-sea sea sampler/observer coverage.

(a) The Regional Administrator may require any vessel holding a

permit for Atlantic sea scallops, NE multispecies, monkfish, Atlantic

mackerel, squid, butterfish, scup, black sea bass, or spiny

[[Page 1570]]

dogfish, or a moratorium permit for summer flounder, to carry a NMFS-

approved sea sampler/observer. If required by the Regional

Administrator to carry an observer or sea sampler, a vessel may not

engage in any fishing operations in the respective fishery unless an

observer or sea sampler is on board, or the requirement is waived.

* * * * *

(e) The owner or operator of a vessel issued a summer flounder

moratorium permit, a scup moratorium permit, a black sea bass

moratorium permit, or a spiny dogfish permit, if requested by the sea

sampler/observer, also must:

(1) Notify the sea sampler/observer of any sea turtles, marine

mammals, summer flounder, scup, black sea bass, spiny dogfish, or other

specimens taken by the vessel.

(2) Provide the sea sampler/observer with sea turtles, marine

mammals, summer flounder, scup, black sea bass, spiny dogfish, or other

specimens taken by vessel.

* * * * *

9. In Sec. 648.12, the introductory text is revised to read as

follows:

Sec. 648.12 Experimental fishing.

The Regional Administrator may exempt any person or vessel from the

requirements of subparts A (general provisions), B (Atlantic mackerel,

squid, and butterfish), D (sea scallop), E (surf clam and ocean

quahog), F (NE multispecies and monkfish fisheries), G (summer

flounder), H (scup), I (black sea bass), or L (spiny dogfish) of this

part for the conduct of experimental fishing beneficial to the

management of the resources or fishery managed under that subpart. The

Regional Administrator shall consult with the Executive Director of the

MAFMC regarding such exemptions for the Atlantic mackerel, squid,

butterfish, summer flounder, scup, black sea bass, and spiny dogfish

fisheries.

* * * * *

10. In Sec. 648.14, paragraph (z) is reserved and paragraphs

(a)(119), (a)(120), and (aa) are added to read as follows:

Sec. 648.14 Prohibitions.

(a) * * *

(119) Purchase or otherwise receive, except for transport, spiny

dogfish from any person on board a vessel issued a spiny dogfish

permit, unless the purchaser/receiver is in possession of a valid spiny

dogfish dealer permit.

(120) Purchase or otherwise receive for a commercial purpose spiny

dogfish landed by a federally permitted vessel in any state, from Maine

to Florida, after the effective date of notification published in the

Federal Register stating that the semi-annual quota has been harvested

and the EEZ is closed to the harvest of spiny dogfish.

* * * * *

(z) [Reserved].

(aa) In addition to the general prohibitions specified in

Sec. 600.725 of this chapter, it is unlawful for any person owning or

operating a vessel issued a valid spiny dogfish permit or issued an

operator's permit to do any of the following:

(1) Sell, barter, trade or transfer, or attempt to sell, barter,

trade or otherwise transfer, other than for transport, spiny dogfish,

unless the dealer or transferee has a dealer permit issued under

Sec. 648.6(a).

(2) Fish for or possess spiny dogfish harvested in or from the EEZ

after the effective date of the notification published in the Federal

Register stating that the semi-annual quota has been harvested and that

the EEZ is closed to the harvest of spiny dogfish.

(3) Land spiny dogfish for a commercial purpose after the effective

date of the notification published in the Federal Register stating that

the semi-annual quota has been harvested and that the EEZ is closed to

the harvest of spiny dogfish.

(4) Remove the fins from spiny dogfish and discard the carcass.

(5) Land spiny dogfish fins in excess of 5 percent, by weight, of

the weight of spiny dogfish carcasses.

(6) Store spiny dogfish fins on board a vessel after the vessel

lands spiny dogfish.

10. Subpart K is added and reserved.

Subpart K--[Reserved]

11. Subpart L is added to read as follows:

Subpart L--Management Measures for the Spiny Dogfish Fishery

Sec.

648.230 Catch quotas and other restrictions.

648.231 Closures.

648.232 Time Restrictions. [Reserved]

648.233 Minimum Fish Sizes. [Reserved]

648.234 Gear restrictions. [Reserved]

648.235 Possession limit. [Reserved]

648.236 Special Management Zones. [Reserved]

648.237 Framework provisions.

Sec. 648.230 Catch quotas and other restrictions.

(a) Annual review. The Spiny Dogfish Monitoring Committee will

annually review the following data, subject to availability, to

determine the total allowable level of landings (TAL) and other

restrictions necessary to assure a target fishing mortality rate (F) of

0.2 in 1999 through April 30, 2000, a target F of 0.03 from May 1,

2000, through April 30, 2003, and a target F of 0.08 thereafter will

not be exceeded: Commercial and recreational catch data; current

estimates of F; stock status; recent estimates of recruitment; virtual

population analysis results; levels of noncompliance by fishermen or

individual states; impact of size/mesh regulations; sea sampling data;

impact of gear other than otter trawls and gill nets on the mortality

of spiny dogfish; and any other relevant information.

(b) Recommended measures. Based on this review, the Spiny Dogfish

Monitoring Committee shall recommend to the Joint Spiny Dogfish

Committee a commercial quota and any other measures including those in

paragraphs (b)(1)-(b)(5) of this section that are necessary to assure

that the F specified in paragraph (a) of this section for the upcoming

fishing year (May 1 through April 30) will not be exceeded. The quota

may be set within the range of zero to the maximum allowed. 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; or

(5) Other gear restrictions.

(c) Annual fishing measures. The Councils' Joint Spiny Dogfish

Committee shall review the recommendations of the Spiny Dogfish

Monitoring Committee. Based on these recommendations and any public

comments, the Joint Spiny Dogfish Committee shall recommend to the

Councils a commercial quota and, possibly, other measures, including

those specified in paragraph (b) of this section, necessary to assure

that the F specified in paragraph (a) of this section for the upcoming

fishing year (May 1 through April 30) will not be exceeded. The

commercial quota may be set within the range of zero to the maximum

allowed. The Councils shall review these recommendations and, based on

the recommendations and any public comments, recommend to the Regional

Administrator a commercial quota and other measures necessary to assure

that the F specified in paragraph (a) of this section for the upcoming

fishing year will not be exceeded. The Councils' recommendations must

include supporting documentation, as appropriate, concerning the

environmental, economic, and other impacts of the recommendations. The

Regional Administrator shall initiate a review of these recommendations

and may modify the recommended quota

[[Page 1571]]

and other management measures to assure that the target F specified in

paragraph (a) of this section will not be exceeded. The Regional

Administrator may modify the Councils' recommendations using any of the

measures that were not rejected by both Councils. After such review,

NMFS shall publish a proposed rule in the Federal Register specifying a

coastwide commercial quota and other measures necessary to assure that

the F specified in paragraph (a) of this section will not be exceeded.

After considering public comments, NMFS shall publish a final rule in

the Federal Register to implement such a quota and other measures.

(d) Distribution of annual quota. (1) The annual quota specified

according to the process outlined in paragraph (a) of this section

shall be allocated between two semi-annual quota periods as follows:

May 1 through October 30 (57.9 percent) and November 1 through April 30

(42.1 percent).

(2) All spiny dogfish landed for a commercial purpose in the states

from Maine through Florida shall be applied against the applicable

semi-annual commercial quota, regardless of where the spiny dogfish

were harvested.

Sec. 648.231 Closures.

The Regional Administrator shall determine the date by which the

quota for each semi-annual period described in Sec. 648.230(d)(1) will

be harvested and shall close the EEZ to fishing for spiny dogfish on

that date for the remainder of that semi-annual period by publishing a

notification in the Federal Register. Upon the closure date and for the

remainder of the semi-annual quota period, 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.

Sec. 648.232 Time Restrictions. [Reserved]

Sec. 648.233 Minimum Fish Sizes. [Reserved]

Sec. 648.234 Gear restrictions. [Reserved]

Sec. 648.235 Possession limit. [Reserved]

Sec. 648.236 Special Management Zones. [Reserved]

Sec. 648.237 Framework provisions.

(a) Within season management action. The Councils may, at any time,

initiate action to add or adjust management measures if they find that

action is necessary to meet or be consistent with the goals and

objectives of the Spiny Dogfish FMP.

(1) Adjustment process. After the Councils initiate a management

action, they shall develop and analyze appropriate management actions

over the span of at least two Council meetings. The Councils shall

provide the public with advance notice of the availability of both the

proposals and the analysis for comment prior to, and at, the second

Council meeting. The Councils' recommendation on adjustments or

additions to management measures must come from one or more of the

following categories: Minimum fish size; maximum fish size; gear

requirements, restrictions or prohibitions (including, but not limited

to, mesh size restrictions and net limits); regional gear restrictions;

permitting restrictions and reporting requirements; recreational

fishery measures (including possession and size limits and season and

area restrictions); commercial season and area restrictions; commercial

trip or possession limits; fin weight to spiny dogfish landing weight

restrictions; onboard observer requirements; commercial quota system

(including commercial quota allocation procedures and possible quota

set-asides to mitigate bycatch, conduct scientific research, or for

other purposes); recreational harvest limit; annual quota specification

process; FMP Monitoring Committee composition and process; description

and identification of essential fish habitat; description and

identification of habitat areas of particular concern; overfishing

definition and related thresholds and targets; regional season

restrictions (including option to split seasons); restrictions on

vessel size (length and GRT) or shaft horsepower; target quotas;

measures to mitigate marine mammal entanglements and interactions;

regional management; any other management measures currently included

in the Spiny Dogfish FMP; and measures to regulate aquaculture

projects.

(2) Councils' recommendation. After developing management actions

and receiving public testimony, the Councils shall make a

recommendation approved by a majority of each Council's members,

present and voting, to the Regional Administrator. The Councils'

recommendation must include supporting rationale, an analysis of

impacts and, if management measures are recommended, a recommendation

to the Regional Administrator on whether to issue the management

measures as a final rule. If the Councils recommend that the management

measures should be issued as a final rule, they must consider at least

the following factors and provide support and analysis for each factor

considered:

(i) Whether the availability of data on which the recommended

management measures are based allows for adequate time to publish a

proposed rule and whether regulations have to be in place for an entire

harvest/fishing season.

(ii) Whether there has been adequate notice and opportunity for

participation by the public and members of the affected industry in the

development of the Councils' recommended management measures.

(iii) Whether there is an immediate need to protect the resource.

(iv) Whether there will be a continuing evaluation of management

measures adopted following their implementation as a final rule.

(3) NMFS action. If the Councils' recommendation includes

adjustments or additions to management measures and:

(i) If NMFS concurs with the Councils' recommended management

measures and determines that the recommended management measures should

be issued as a final rule based on the factors specified in paragraph

(b)(2) of this section, then the measures will be issued as a final

rule in the Federal Register.

(ii) If NMFS concurs with the Councils' recommendation and

determines that the recommended management measures should be published

first as a proposed rule, then the measures will be published as a

proposed rule in the Federal Register. After additional public comment,

if NMFS concurs with the Councils' recommendation, then the measures

will be issued as a final rule in the Federal Register.

(iii) If NMFS does not concur, the Councils will be notified in

writing of the reasons for the non-concurrence.

(iv) Framework actions can be taken only in the case where both

Councils approve the proposed measure.

(b) Emergency action. Nothing in this section is meant to derogate

from the authority of the Secretary to take emergency action under

section 305(e) of the Magnuson-Stevens Act.

[FR Doc. 00-630 Filed 1-10-00; 8:45 am]

BILLING CODE 3510-22-F