[Federal Register Volume 74, Number 40 (Tuesday, March 3, 2009)]
[Proposed Rules]
[Pages 9208-9210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4480]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 090129076-9092-01]
RIN 0648-AX56


Fisheries of the Northeastern United States; Spiny Dogfish; 
Framework Adjustment 2

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to implement Framework Adjustment 2 (Framework 
2) to the Spiny Dogfish Fishery Management Plan (FMP), developed by the 
Mid-Atlantic and New England Fishery Management Councils (Councils). 
Framework 2 would broaden the FMP stock status determination criteria 
for spiny dogfish, while maintaining objective and measurable criteria 
to identify when the stock is overfished or approaching an overfished 
condition. The framework action would also establish acceptable 
categories of peer review of new or revised stock status determination 
criteria for the Council to use in its specification-setting process 
for spiny dogfish. This action is necessary to ensure that changes or 
modification to the stock status determination criteria, constituting 
the best available, peer-

[[Page 9209]]

reviewed scientific information, are accessible to the management 
process in a timely and efficient manner, consistent with National 
Standards 1 and 2 of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act).

DATES: Written comments must be received no later than 5 p.m. local 
time on April 2, 2009.

ADDRESSES: You may submit comments, identified by RIN 0648-AX56, by any 
one of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov
    <bullet> Fax: 978-281-9135, Attn: Jamie Goen
    <bullet> Mail: Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 
01930. Mark the outside of the envelope: ``Comments on Dogfish 
Framework Adjustment 2.''
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.
    Copies of Framework Adjustment 2 are available from Daniel T. 
Furlong, Executive Director, Mid-Atlantic Fishery Management Council, 
Room 2115, Federal Building, 300 South New Street, Dover, DE 19904-
6790. The framework document is also accessible via the Internet at 
http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Jamie Goen, Fishery Policy Analyst, 
(978) 281-9220.

SUPPLEMENTARY INFORMATION:

Background

    The current stock status determination criteria for spiny dogfish 
is found in the FMP. To modify or replace these stock status 
determination criteria, the Council must enact a framework adjustment 
or an amendment to the FMP.
    The regulations at Sec.  648.230 outline the management processes 
for spiny dogfish (Squalus acanthias). Stock assessment information is 
used in the management process that is used to derive annual catch 
limits (e.g., Total Allowable Landings (TAL)). Stock assessments for 
spiny dogfish undergo periodic formal scientific peer review as part of 
the Northeast Fisheries Science Center's (NEFSC) Stock Assessment 
Workshop (SAW) and Stock Assessment Review Committee (SARC) process. 
These and other periodic formal peer reviews may result in 
recommendations to revise or use different stock status determination 
criteria as different or new approaches are applied to previously 
existing data, or to new, previously unexamined data. Currently, these 
recommendations are incorporated into the management scheme through a 
framework adjustment or amendment to the FMP. Given the time necessary 
to develop FMP framework adjustments and amendments, it is likely that, 
should such new stock status determination criteria result from a 
formal SAW/SARC peer review, the new criteria would not be available 
for the Councils' use for at least 1 year.
    In addition, groups such as the Councils, the Atlantic States 
Marine Fisheries Commission (Commission), academic institutions, and 
other interested parties have periodically contracted with outside 
parties or conducted in-house formal peer reviews of the stock status 
determination criteria. In such instances, it has not been clear how 
the results of these independently conducted peer reviews should be 
viewed by the Councils in regards to National Standard 2 of the 
Magnuson-Stevens Act, which specifies that management decisions shall 
be based upon the best scientific information available.
    In response, the Council has developed and submitted for review by 
the Secretary of Commerce, Framework 2 to the Spiny Dogfish FMP. This 
framework, if adopted, would enact the following actions, designed to 
improve the time frame in which peer reviewed information can be 
utilized in the management process, as well as providing guidance on 
peer review standards and how to move forward in the management process 
when peer review results are not clear. The principal actions proposed 
by Framework 2 are to:
    1. Redefine in general terms, while maintaining objective and 
measurable criteria, the stock status determination criteria for spiny 
dogfish;
    2. Define what constitutes an acceptable level of peer review; and
    3. Provide guidance on how the Council may engage its Scientific 
and Statistical Committee (SSC), including cases when approved peer 
review processes fail to provide a consensus recommendation or clear 
guidance for management decisions.
    These changes, proposed in Framework 2, are discussed in detail in 
the following sections. This action is similar to Framework Adjustment 
7 to the Summer Flounder, Scup, and Black Sea Bass FMP that was 
implemented in 2007.

Redefined Stock Status Determination Criteria

    Framework 2 would redefine the stock status determination criteria 
for spiny dogfish in the FMP. The maximum fishing mortality rate (F) 
threshold is defined as FMSY; which is the fishing mortality rate 
associated with the maximum sustainable yield (MSY) for spiny dogfish. 
The maximum fishing mortality rate threshold (Fmsy), or a reasonable 
proxy thereof, may be defined as a function of (but not limited to): 
Total stock biomass, spawning stock biomass, or total pup production; 
and may include males and/or females, or combinations and ratios 
thereof, that provide the best measure of productive capacity for spiny 
dogfish. Exceeding the established fishing mortality rate threshold 
constitutes overfishing.
    The minimum stock size threshold is defined as 1/2 of the biomass 
at MSY (B<INF>msy</INF>) (or a reasonable proxy thereof) as a function 
of productive capacity. The minimum stock size threshold may be defined 
as (but not limited to): Total stock biomass, spawning stock biomass, 
or total pup production; and may include males and/or females, or 
combinations and ratios thereof, that provide the best measure of 
productive capacity for spiny dogfish. The minimum stock size threshold 
is the level of productive capacity associated with the relevant 1/2 
B<INF>msy</INF> level. Should the measure of productive capacity for 
the stock or stock complex fall below this minimum threshold, the stock 
or stock complex is considered overfished. The target for rebuilding is 
specified as B<INF>msy</INF>, under the same definition of productive 
capacity as specified for the minimum stock size threshold.
    Under Framework 2, the stock status determination criteria are 
proposed to be made more general by removing specific references to how 
maximum fishing mortality threshold, minimum stock size threshold, and 
biomass are calculated. By making the stock status determination 
criteria more general, the results of peer reviewed best available 
science could be more readily adopted through the specification-setting 
process. The Councils would still

[[Page 9210]]

provide specific definitions for the stock status determination 
criteria in the specifications and management measures, future 
framework adjustments, and amendments, including, where necessary, 
information on changes to the definitions.

Peer Review Standards

    While the NEFSC SAW/SARC process remains the primary process 
utilized in the Northeast Region to develop scientific stock assessment 
advice, including stock status determination criteria for federally 
managed species, Framework 2 proposes several additional scientific 
review bodies and processes that would constitute an acceptable peer 
review to develop scientific stock assessment advice for spiny dogfish 
stock status determination criteria. These periodic reviews outside the 
SAW/SARC process could be conducted by any of the following, as deemed 
appropriate by the managing authorities:
    <bullet> Transboundary Resource Assessment Committee (TRAC), 
composed of both U.S. and Canadian scientists
    <bullet> MAFMC SSC Review
    <bullet> MAFMC Externally Contracted Reviews with Independent 
Experts (e.g., Center for Independent Experts- CIE)
    <bullet> NMFS Internally Conducted Review (e.g., Comprised of NMFS 
Scientific and Technical Experts from NMFS Science Centers or Regions)
    <bullet> NMFS Externally Contracted Review with Independent Experts 
(e.g., Center for Independent Experts-CIE)

Guidance on Unclear Scientific Advice Resulting from Peer Review

    In many formal peer reviews, the terms of reference provided in 
advance of the review instruct the reviewers to formulate specific 
responses on the adequacy of information and to provide detailed advice 
on how that information may be used for fishery management purposes. As 
such, most stock assessment peer reviews result in clear 
recommendations on stock status determination criteria for use in the 
management of fish stocks. However, there are occasional peer review 
results where panelists disagree and no consensus recommendation is 
made regarding the information. The terms of reference may not be 
followed and no recommendations for the suitability of the information 
for management purposes may be made. In such instances, it is unclear 
what then constitutes the best available information for management 
use.
    Framework 2 proposes that, when clear consensus recommendations are 
made by any of the acceptable peer review groups, the information is 
considered the best available and may be utilized by the Council in the 
management process for spiny dogfish. Similarly, when the consensus 
results of a peer review are to reject proposed changes to the stock 
assessment methods or the stock status determination criteria, 
Framework 2 proposes that the previous information on record would 
still continue to constitute the best available information and should 
be used in the management process.
    When peer review recommendations do not result in consensus, are 
unclear, or do not make recommendations on how the information is to be 
used in the management process, Framework 2 proposes that the Councils 
engage their SSCs or a subset of their SSCs with appropriate stock 
assessment expertise, to review the information provided by the peer 
review group. The SSC would then seek to clarify the information and 
provide advice to the Councils to either modify, change, or retain the 
existing stock status determination definitions as the best available 
information for use in the development of specifications and management 
measures.

Classification

    NMFS has determined that this proposed rule is consistent with the 
FMP and has preliminarily determined that the rule is consistent with 
the Magnuson-Stevens Act and other applicable laws.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Regional Administrator has determined that this proposed rule 
is an administrative framework adjustment to the FMP and is, therefore, 
categorically excluded from the requirement to prepare an Environmental 
Impact Statement or equivalent document under the National 
Environmental Policy Act.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
This proposed rule deals only with how the best available, peer-
reviewed scientific information can be more quickly and efficiently 
incorporated into the Councils' specification-setting process for spiny 
dogfish. This is achieved by broadening the descriptions of the stock 
status determination criteria in the FMP, so updated and peer-reviewed 
information can be more readily adopted for use in the management 
process. The proposed change is to how the stock status determination 
criteria are defined; there is no change to the existing determination 
criteria. Additionally, the Framework identifies acceptable levels of 
peer review that must be satisfied before new or revised information is 
accepted as the best available science. These are administrative 
changes to the FMP that serve to improve the quality of data used in 
management decisions, consistent with National Standards 1 and 2 of the 
Magnuson-Stevens Act. As such, the rule will not have significant 
direct or indirect economic impacts on small entities. As a result, an 
initial regulatory flexibility analysis is not required and none has 
been prepared.

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

    Dated: February 25, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. E9-4480 Filed 3-2-09; 8:45 am]
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