Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Department of Commerce

###### National Oceanic and Atmospheric Administration 

          - 50 CFR Part 648 
          - [Docket No. 000426114-0114-01; I.D. 041000F] 
          - RIN 0648-AN53 

# AGENCY:

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

# ACTION:

Interim final rule; request for comments. 

# SUMMARY:

                        NMFS implements specifications and seasonal trip limits for fishing year 2000 (May 1, 2000, through April 30, 2001) for the spiny dogfish (                        *Squalus**acanthias*) fishery. This action establishes a total quota for the 2000 fishing year and sets aside a portion of the total quota for vessels participating in spiny dogfish exempted fishing projects. This interim final rule is implemented to prevent overfishing of spiny dogfish.                     

# DATES:

                        Effective May 1, 2000, through October 28, 2000. Comments must be received at the appropriate address or fax number (see                         **ADDRESSES**                        ) no later than 5 p.m., eastern daylight time, June 5, 2000.                     

# ADDRESSES:

Comments on this interim final rule should be sent to Patricia A. Kurkul, Regional Administrator, Northeast Regional Office, NMFS, 1 Blackburn Drive, Gloucester, MA 01930-2298. Please mark the envelope “Comments—2000 Spiny Dogfish Specifications.” Comments also may be sent via facsimile (fax) to 978-281-9135. Comments will not be accepted if submitted via e-mail or Internet. Copies of documents supporting this action are available from the Regional Office at the address specified here. 

# FOR FURTHER INFORMATION CONTACT:

                        Peter W. Christopher, Fishery Policy Analyst, 978-281-9288, fax 978-281-                              ( print page 25888)                            9135, e-mail                         *peter.christopher@noaa.gov*.                     

# SUPPLEMENTARY INFORMATION:

The Spiny Dogfish Fishery Management Plan (FMP) was partially approved by NMFS on behalf of the Secretary of Commerce (Secretary) on September 29, 1999, and the final rule implementing the FMP was published on January 10, 2000, and initially scheduled to be effective on February 10, 2000. Included among the approved management measures in the FMP is a requirement that the Mid-Atlantic Fishery Management Council (Mid-Atlantic Council) and New England Fishery Management Council (New England Council) jointly develop annual specifications, which include a commercial quota to be allocated on a semi-annual basis, and other restrictions to assure that fishing mortality targets will not be exceeded. Both the Mid-Atlantic and New England Councils recommended a commercial quota specification and trip limits to achieve the FMP's objectives for fishing year 2000 at their respective meetings in November and December 1999. However, the Councils failed to reach agreement on a preferred commercial quota and trip limit measure for this action. While the Mid-Atlantic Council recommended a quota of 2.9 million lb (1,316 mt) and a trip limit of 300 lb (136 kg), the New England Council recommended a quota of 22 million lb (10,000 mt) and a trip limit of 7,000 lb (3,175 kg) for the first quota period and a trip limit of not more than 7,000 lb (3,175 kg) for the second quota period. 

## Reasons for Delay of the Final Rule Effective Date 

On February 10, 2000, NMFS, on behalf of the Secretary, delayed the effective date of the final rule for the FMP until March 15, 2000 (65 FR 7460, February 15, 2000), in order to provide the Councils with the opportunity to come to an agreement on how to proceed with implementation of the FMP. The effective date of the final rule was subsequently delayed until March 27, 2000, to provide additional time for the Councils to reconcile their differences. The Mid-Atlantic Council met on March 16, 2000 and voted to support its original recommendation for the specifications. The New England Council met on March 23, 2000 and voted to recommend a reduced quota of 14.3 million lb (6,500 mt) and a trip limit of 7,000 lb (3,175 kg) for both quota periods. The effective date of the final rule to implement the FMP was delayed again, until April 3, 2000, to provide additional time to consider options for the spiny dogfish specifications for the 2000 fishing year. As a result of the Councils' inability to reach agreement, NMFS, on behalf of the Secretary, is issuing this rule establishing a quota and trip limits for fishing year 2000 under its interim authority. 

## Need To End Overfishing 

The FMP specifies that a fishing mortality rate (F) of 0.03 on female spiny dogfish is required for the 3-year period from May 1, 2000, through April 30, 2003, to end overfishing on spiny dogfish. The FMP further specifies that the commercial quota be subdivided into two semi-annual quota periods as follows: The period from May 1 through October 31 (quota period 1) is allocated 57.9 percent of the annual quota, and the period from November 1 through April 30 (quota period 2) is allocated 42.1 percent of the annual quota. The current F on female spiny dogfish has been recently estimated to be approximately 0.42, indicating that severe overfishing is occurring. If overfishing is occurring in a fishery, section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) provides that the Secretary may implement interim measures necessary to address overfishing. The quota and management measures in this interim final rule particularly address the overfishing that is occurring on females in the spiny dogfish fishery. This is an immediate problem that will become more serious if implementation of management measures to end overfishing is delayed beyond the start of the fishing year on May 1, 2000.

## Interim Final Rule Measures 

This interim final rule implements 2000 specifications for the spiny dogfish fishery, including a total quota of 4.5 million lb (2,041 mt), of which 4 million lb (1,814 mt) is allocated to the commercial fishery and 500,000 lb (226.7 mt) as a set-aside for spiny dogfish exempted fishing projects. Quota period 1 is allocated 57.9 percent, or 2,316,000 lb (1,050 mt), of the commercial quota, and quota period 2 is allocated 42.1 percent, or 1,684,000 lb (764 mt), of the commercial quota. In addition, this interim final rule establishes seasonal spiny dogfish trip limits of 600 lb (272 kg) for quota period 1, and 300 lb (136 kg) for quota period 2. The measures are necessary to end overfishing and to achieve the target F of 0.03 for fishing year 2000. 

The spiny dogfish exempted fishing quota set-aside of 500,000 lb (226.7 mt) will be allocated to vessels participating in projects designed to improve selectivity of spiny dogfish fishing gear and methods. The primary goal in providing this incentive for such projects is to investigate ways to shift fishing effort away from female spiny dogfish, which in turn would help to rebuild the female portion of the stock and provide greater balance in terms of the ratio in the stock of females to males. In addition, spiny dogfish gear-selectivity studies could improve current information on the species, including bycatch and discard mortality. Interested parties are required to submit proposals pursuant to the provisions for experimental fishing under 50 CFR 648.12, and the provisions for exempted fishing set forth in 50 CFR 600.745. 

There is uncertainty and variability in the population estimates for spiny dogfish. While landings associated with the mean estimated population size would be 2.9 million lb (1,316 mt) with a fishing mortality rate of F = 0.03, a range of populations, considering uncertainty in the estimates, would result in landings of approximately 1.7 million lb (771 mt) to 4.5 million lb (2,041 mt) with a fishing mortality rate of F = 0.03. Uncertainty in the population estimates therefore indicate that a 2000 fishing year quota of 4.5 million lb (2,041 mt), which is higher than that recommended in the FMP, could still achieve an F of 0.03, although at a reduced probability. The trip limits contained in this rule are probably low enough to end the directed fishery for spiny dogfish and improve the likelihood that the measures will achieve an F of 0.03. This is because vessel operators are likely to avoid spiny dogfish. Although discarding of spiny dogfish would likely continue in the non-directed fisheries, it is not expected to cause negative impacts that have not already been considered in the FMP. The spiny dogfish exempted fishing quota set-aside of 500,000 lb (226.7 mt) is not expected to impact negatively the goals of the FMP. Projects would be developed to investigate ways to avoid catch and discards of female spiny dogfish. The effect of the projects on female dogfish will depend on the degree of targeting that occurs and the survival rate of discarded female dogfish. Both aspects will be important to consider and to measure during the projects. 

                    The trip limits for quota periods 1 and 2 will probably eliminate the directed fishery, and they are likely to have similar impacts on spiny dogfish trips during the respective quota periods, based on an analysis of recent NMFS landings data. Trip limits of 300 lb (136 kg) during quota period 2 and 600 lb                           ( print page 25889)                        (272 kg) during quota period 1, will each impact approximately 67 percent of trips after which spiny dogfish are landed.                 

An analysis of the trip limits examined the expected reduction in the regulatory discards of spiny dogfish based on economic decisions of vessel owners when faced with the subject trip limits. This analysis indicates that trip limits, in combination with a low commercial quota, will produce a high level of regulatory discards because spiny dogfish are caught in nearly all major fisheries in the region. However, the goal of the FMP and the 2000 specifications is to eliminate the directed fishery in order to meet the F of 0.03 target. According to the FMP, high discards are also associated with the directed spiny dogfish fishery because the spiny dogfish landed in this fishery are primarily large females; smaller spiny dogfish are usually discarded. Thus, providing for a low trip limit that eliminates the directed fishery should decrease the mortality on female spiny dogfish. In addition, since dogfish is a low value species that is difficult to handle onboard vessels, the projection of spiny dogfish discards in the trip limit analyses is presumed to be overestimated; vessel owners are expected to make efforts to avoid spiny dogfish while targeting other species because of the effort associated with discarding them. 

## Alternatives Proposed by the Councils 

### Mid-Atlantic Council Alternative 

                    The Mid-Atlantic Council recommended a commercial quota of 2,901,254 lb (1,316 mt) and a trip limit of 300 lb (136 kg) for both quota periods. The Mid-Atlantic Council's rationale for its recommendation is as follows: (1) The commercial quota associated with the F = 0.03 target for fishing year 2000 (as specified in the FMP) is 2,901,254 lb (1,316 mt); (2) a trip limit of 300 lb (136 kg) is expected to produce, on average, the level of landings specified in the FMP during the rebuilding period to achieve an F of 0.03; (3) the intent of the FMP is to close the directed fishery for adult female spiny dogfish after year one of the rebuilding period and allow for the landing of incidental catch of spiny dogfish only during the rebuilding period; and (4) these restrictions will prevent a derby fishery and allow for a more equitable distribution of landings in time and space. The Mid-Atlantic Council submitted to NMFS a proposed rule to implement its recommendations; however, that proposed rule was not published in the                     **Federal Register**                    .                 

### New England Council Alternatives 

The New England Council initially recommended a commercial quota of 22,059,228 lb (10,006 mt) and a trip limit of 7,000 lb (3,175 kg) for quota period 1 and a trip limit of not more than 7,000 lb (3,175 kg) for quota period 2. The New England Council reasoned that the higher commercial quota, combined with a high trip limit, would allow the directed fishery to operate for another year. The New England Council believed that a commercial quota of 22,059,228 lb (10,006 mt) would provide for as much as a 50-percent reduction of landings from 1990 to 1997 levels. Initially, the New England Council was concerned that discarding of spiny dogfish would overwhelm stock rebuilding goals and that the directed fishery should be maintained while the Councils determine the appropriate rebuilding target and management measures to control discarding. After reconsidering their recommendation at the request of the Secretary, the New England Council supported a quota of 14.3 million lb (6,486 mt), which the New England Council believed would end overfishing and allow a limited fishery to continue. The New England Council felt that a trip limit of 7,000 lb (3,175 kg) would not encourage a directed fishery but would instead allow vessels to land dogfish that would have been discarded. When combined with discards of spiny dogfish in other fisheries, the New England Council argued that the discards associated with a low trip limit would undermine the goals of the FMP. 

## Economic Impact Analysis 

NMFS prepared an analysis of economic impacts on small entities was prepared for this interim final rule. It analyzes impacts of measures in this interim final rule and incorporates information contained in an initial regulatory flexibility analysis prepared by the Mid-Atlantic Council for the initial proposed rule submission. 

The reasons why this action was considered and is being taken by NMFS by interim final rulemaking are described elsewhere in the preamble. Likewise, the objectives and the legal basis for this interim final rule are covered earlier in the preamble. 

The small entities considered in the analysis include 512 vessels that have reported spiny dogfish landings to NMFS. Vessels that did not have a Federal fishery permit in 1998, such as vessels that fish in state waters only, were not included in the analysis. Although it is likely that the measures would have some impact on the activity of these vessels, should their owners choose to acquire a Federal spiny dogfish permit, the magnitude of this impact could not be determined. 

There are no new reporting or recordkeeping requirements contained in the preferred alternative or any of the other alternatives that were considered for this action. No relevant Federal rules are known to duplicate, overlap or conflict with the measures contained in this interim final rule. 

The 500,000-lb portion of the 4.5-million lb quota is established to minimize the economic effects of the quota without compromising the objective of the FMP to begin rebuilding the spiny dogfish stock, especially the adult female portion. 

Analysis of the action considers a preferred alternative having a commercial quota of 4 million lb (1,814 mt), and trip limits of 600 lb (272 kg) in quota period 1 and 300 lb (136 kg) in quota period 2. Economic impacts on small entities are also analyzed under four alternative options: (1) a commercial quota of 2,901,254 lb (1,316 mt) and a trip limit of 300 lb (136 kg) for both quota periods (Mid-Atlantic Council Option); (2) a commercial quota of 22,059,228 lb (10,006 mt) and a trip limit of 7,000 lb (3,175 kg) for quota period 1 and up to 7,000 lb (3,175 kg) for quota period 2 (the New England Council's original recommendation); (3) a commercial quota of 2,901,254 lb (1,316 mt), trip limits of 600 lb (272 kg) for quota period 1 and 300 lb (136 kg) for quota period 2; and (4) a no action alternative. 

A large portion of affected vessels identified in the analysis would likely experience revenue losses under any of the options. Under the no action alternative, with no quota or management measures, the FMP projects that landings of spiny dogfish would decrease approximately 50 percent from 1998 levels to 25.5 million lb (11,576 mt) in fishing year 2000, due to continued declines in stock size as the result of overfishing. The analysis projects that this reduction in spiny dogfish landings from 1998 levels would result in lower revenues for a large portion of the industry. Of the four options, the Mid-Atlantic Council's option would have the greatest negative economic impact on vessels. 

                    An analysis was conducted for the trip limits of 600 lb (272 kg) and 300 lb (136 kg) based on possible economic decisions of vessel owners during spiny dogfish trips. The trip limit analysis includes estimates of the reduction in the number of trips, the level of landings during the quota period and projected closure dates of the quota                           ( print page 25890)                        periods. The analysis projected that, on average, under a trip limit of 600 lb (272 kg) for quota period 1, landings will exceed the semi-annual quota of 2,316,000 lb (1,050 mt) on about September 5, 2000 (128 days into the quota period). During quota period 2, however, if a 300-lb trip limit was in effect, landings were projected not to exceed the semi-annual quota of 1,684,000 lb (764 mt). The analysis projected landings of only 615,000 lb (279 mt) during quota period 2. Thus, approximately 1,069,000 lb (485 mt) of allowable spiny dogfish landings were projected not to be landed. Although the commercial quota is 4 million lb (1,814 mt), total projected landings are projected to reach only 2,930,000 lb (1,329 mt). However, the analysis does not account for behavioral changes by vessel operators, which could impact the amount of landings. Also, since vessels without Federal permits are not captured in the analysis, additional landings are likely to occur. In comparison to the Mid-Atlantic Council option, the impact on small entities is less severe.                 

Based on the economic analysis of the trip limit for quota period 1, and considering a commercial quota of 2,901,254 lb (1,316 mt), trip limits of 300 lb (136 kg), 600 lb (272 kg), and 7,000 lb (3,175 kg) are estimated to eliminate approximately 28 percent, 26 percent and 28 percent, respectively, of fishing trips after which spiny dogfish are landed. While some impacted vessels would continue to make trips and land only up to the trip limits, a portion of the impacted trips, i.e. 28 percent, 26 percent and 28 percent of trips under trip limits of 300 lb (136 kg), 600 lb (272 kg) and 7,000 lb (3,175 kg), respectively, in quota period 1, would cease because the trip limit would not provide for profitable trips. The number of trips that are eliminated under a 7,000-lb trip limit increase because the length of the season under the high trip limit would be significantly reduced. Dogfish sell at around 16 cents per pound. It is possible that the effort from the eliminated spiny dogfish trips could move into other fisheries where vessels may make up for the lost revenue. However, it is not clear at what level this would occur or how much additional revenue it would create for the vessels. 

Although more vessels would find it profitable to land spiny dogfish under a trip limit of 7,000 lb (3,175 kg) while the season is open, a trip limit of 7,000 lb (3,175 kg) would not meet the objectives of the FMP because it would not end the directed fishery. Vessels may still be able to make profitable trips by directing on other species and landing up to the trip limit of 600 lb (272 kg) or 300 lb (136 kg) of spiny dogfish. Revenues from spiny dogfish alone would be minimal, but the lower trip limits will likely end the directed fishery and be consistent with the FMP. If major spiny dogfish markets are eliminated as a result of low supply due to a low trip limit or quick closure of the fishery, much of the revenue from the spiny dogfish fishery would also be drastically reduced. 

The spiny dogfish exempted fishing quota set-aside of 500,000 lb (226.7 mt) will provide additional revenue for participating vessels, although the level cannot be determined without an estimate of the number of vessels that would participate in the exempted fishing projects. In addition, it is likely that research organizations may provide additional funding as compensation for the use of the vessels in the projects. 

The impact of the annual specifications for 2000 contained in this interim final rule will be greatest in Massachusetts, North Carolina, Maryland, Maine and New Jersey, which account cumulatively for 90 percent of spiny dogfish landings from 1988 through 1997. Further, the communities of Wachapreague, VA; Plymouth, MA; and Scituate, MA, have benefitted from dogfish landings that made up 76 percent, 76 percent, and 21 percent, respectively, of the value of all landed fish, based on 1997 NMFS landings data. Communities such as these, and others that have relatively high income from dogfish landings compared to landings of other species, will be most impacted by the commercial quota and trip limit in the specifications. The analysis also concludes that small vessels (25 to 49 ft (7.6 to 14.9 m)), which constitute 88 percent of the affected vessels, would be particularly impacted under any option. However, if no action is taken, communities benefitting from dogfish landings would experience greater lost revenues in the long term due to stock collapse as a result of the directed fishery. Long-term benefits to the stocks and revenues resulting from rebuilt stocks are expected to outweigh the short-term negative impacts to the sectors of the fishing industry that have utilized the spiny dogfish resource. 

Following is a summary of the impacts that would be expected by implementing the alternatives that were considered by the Councils. 

The Mid-Atlantic Council recommended a commercial quota of 2,901,254 lb (1,316 mt) and a trip limit of 300 lb (136 kg) for both quota periods during fishing year 2000. Based on the analyses, the Mid-Atlantic Council option would result in the greatest reduction in revenues of the options considered. The only difference between the Mid-Atlantic Council's trip limit recommendation and the action in this interim final rule is that the trip limit for quota period 1 under the Mid-Atlantic Council option would be 300 lb (136 kg), rather than 600 lb (272 kg) in this interim final rule. With a trip limit of 300 lb (136 kg) for quota period 2, the quota would not be expected to be exceeded and the fishery would not close, although revenues per trip would be small due to the low trip limit and low value of spiny dogfish. The lower trip limit would be more likely to cause immediate loss of spiny dogfish markets as a result of low supply. The revenue losses associated with a trip limit of 300 lb (136 kg) in quota period 1 is expected to be higher than those associated with a trip limit of 600 lb (272 kg). 

The New England Council recommended a quota of 22,059,228 lb (10,006 mt) for fishing year 2000 and a trip limit of 7,000 lb (3,175 kg) in quota period 1 and up to 7,000 lb (3,175 kg) in quota period 2. The higher commercial quota would provide for a directed fishery for spiny dogfish that would likely last for the majority of the quota periods, thus providing vessels the ability to sell spiny dogfish for a longer period of time. Further, the higher trip limits would allow higher per trip revenues from spiny dogfish and would reduce regulatory discards. However, even under this option, a large number of vessels would likely still suffer revenue losses compared to 1998 revenues because stock abundance has declined. The New England Council's recommended quota would likely result in fishing mortality approaching an F of 0.3, thus well exceeding the target F of 0.03, and the high trip limit would encourage directed spiny dogfish fishing, both of which are counter to the objectives of the FMP. Further, long-term revenues to participants in the fishery would likely be reduced due to future reductions in landings that could be required due to overfishing caused by directed fishing on spiny dogfish. 

                    The trip limit analysis was not applied to the New England Council's more recent quota recommendation of a 14,300,000 lb (6,500 mt) and trip limit of 7,000 lb (3,175 kg), but the economic impacts would be greater than those associated with the Council's original recommendation of a quota of 22,059,228 lb (10,006 mt) and trip limit of 7,000 lb (3,175 kg). Because of the lower quota, the fishery would close earlier and more vessels would                           ( print page 25891)                        experience revenue losses due to the closure.                 

Under the no action alternative, the spiny dogfish fishery would remain unregulated and fishing mortality could be expected to remain at or near an F of 0.43, consistent with current projected fishing mortality. With no restrictions, the FMP projects that landings would decline to about 25.5 million lb (11,576 mt) in fishing year 2000 due to continued reductions in the stock size. Revenues would decline due to the projected 41 percent reduction in landings. 

## Classification 

The Assistant Administrator for Fisheries, NOAA (AA), finds that it would be impracticable and contrary to the public interest to provide prior notice of and opportunity for public comment on this action. These measures must be in place by May 1, 2000, the start of the fishing year. Any delay in preventing overfishing increases the likelihood of a loss of long-term productivity of the spiny dogfish resource and increases the probability that more severe restrictions would be needed in the future. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. 

Similarly, it is in the public interest to implement these measures by the beginning of the next fishing year (May 1, 2000) in order to prevent overfishing and reduce the likelihood of long term productivity losses and more severe restrictions in the future. Therefore, the AA finds good cause under 5 U.S.C. 553(d)(3) not to delay for 30 days the effectiveness of this interim final rule. 

This interim final rule has been determined to be significant for the purposes of E.O. 12866. 

                    Because prior notice and opportunity for public comment are not required for this interim final rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601*et**seq*., are inapplicable. Nevertheless, NMFS prepared an economic analysis as part of the regulatory impact review, which describes the impact this interim final rule will have on small entities. This economic analysis is described in the                     **Supplementary Information**                     section of the preamble to this interim final rule.                 

The President has directed Federal agencies to use plain language in their communications with the public, including regulations. To comply with this directive, we seek public comment on any ambiguity or unnecessary complexity arising from the language used in this interim final rule. 

# List of Subjects in 50 CFR Part 648

      - Fisheries
      - Fishing
      - Reporting and recordkeeping requirements

Dated: May 1, 2000. 

Penelope D. Dalton, 

Assistant Administrator for Fisheries, National Marine Fisheries Service. 

For the reasons stated 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*.                         2. In § 648.14, paragraph (aa)(7) is added to read as follows: 

§ 648.14

* * * * *

(aa) * * * 

(7) Land per trip more than the trip limit of spiny dogfish specified under § 648.235. 

3. In § 648.235, the heading is revised and paragraphs (a) and (b) are added to read as follows: 

§ 648.235

                            (a)                             *Quota Period 1*. From May 1 through October 31, vessels issued a valid Federal spiny dogfish permit specified under § 648.4(a)(11) may land up to 600 lb (272 kg) of spiny dogfish per trip.                         

                            (b)                             *Quota Period 2*. From November 1 through April 30, vessels issued a valid Federal spiny dogfish permit specified under § 648.4(a)(11) may land up to 300 lb (136 kg) of spiny dogfish per trip.                         

[FR Doc. 00-11107 Filed 5-1-00; 3:27 pm] 

BILLING CODE 3510-22-F