72100 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Proposed Rules 

Analysis of Petition and Decision 

NMFS carefully considered the 

information contained in the petition 

and supporting documents, and made 

the final determinations for each portion 

of the petition as follows. 

Petition Component (1): Conduct Inwater Population Level Assessments 

The petition fails to provide any new 

information that justifies the need for 

regulations that would change the 

agency’s general pattern or practice 

regarding data collection and analytical 

methodologies. NMFS is aware of the 

TEWG’s assessments of the current 

datasets and is already working to 

improve the empirical data that define 

where, how many, and at what life stage 

and condition sea turtles may be 

encountered. NMFS is also conducting 

and supporting in-water research in 

many Atlantic states, as well as 

conducting aerial surveys in the midAtlantic to better assess sea turtle 

distribution and abundance. NMFS has 

built upon the TEWG recommendations 

by developing a requirements plan 

(NOAA 2004) to improve our 

understanding of the status of U.S. sea 

turtle populations. The requirements 

plan reviews the current sea turtle 

population assessment program in terms 

of present research capability and 

capacity, and delineates the resources 

necessary to acquire reliable assessment 

information to fully address identified 

data requirements. NMFS has 

addressed, and will continue to address, 

both the substance of this petitioned 

action and the TEWG recommendations 

through existing research planning 

documents and programs. Improvement 

of NMFS’ research program is a matter 

left to the agency’s discretion; it is not 

a specific and discrete action that is 

properly within the scope of a petition 

for rulemaking pursuant to APA 5 

U.S.C. 553(e). Accordingly, NMFS 

denies this component of the petition. 

Petition Component (2): Increase 

Observer Coverage to Obtain Accurate 

Information on the Number of Sea 

Turtles Caught in All Fisheries 

Oceana has previously petitioned 

NMFS to develop and implement a 

workplan for placing observers on 

enough fishing trips to provide 

statistically reliable bycatch estimates in 

all fisheries (67 FR 19154; April 18, 

2002). In its response to that petition, 

NMFS explained that even though 

observers are effective in many fisheries, 

they may not be appropriate for all 

fisheries (68 FR 11501, March 11, 2003). 

NMFS is continuing to expand and 

modernize observer programs for 

Federal commercial fisheries. NMFS 

recognizes that improving monitoring 

programs should increase our 

understanding of sea turtle interactions, 

but constraints on agency resources and 

logistical difficulties (e.g., small boats) 

make it difficult to monitor the extent of 

sea turtle interactions in state-managed 

and recreational fisheries. NMFS is 

exploring various observer options that 

could allow for more comprehensive, 

longer term monitoring of sea turtlefishery interactions across fishing 

sectors and jurisdictional boundaries, 

but this on going effort is still in its 

early stages. Options may include 

placing observers in fisheries of concern 

pursuant to authority under the 

Endangered Species Act (ESA). In light 

of NMFS’ previous denial of a 

substantially similar petitioned action 

and the agency’s ongoing efforts to 

improve observer coverage, granting this 

petitioned action is unwarranted at this 

time. 

Petition Component (3): Establish a 

New, Uniform Quantitative Method for 

Determining Take Limits for Biological 

Opinions 

NMFS is interested in maintaining 

consist ESA section 7 jeopardy analyses 

in its biological opinions, while taking 

into account the wide variability in 

listed species’ biology, as well as the 

wide variability in available information 

on them. To this end, NMFS convened 

a workshop in August 2004 as a first 

step in vetting the ESA section 7 

biological opinion assessment 

framework. NMFS is still in the process 

of adding features such as identifying a 

suite of quantitative and qualitative 

methods for use in both data-sparse and 

data-rich situations, as well as testing 

and refining the applicability of the 

methods using information typical to 

section 7 consultations. 

Any structured decision approach 

adopted by NMFS must, in the overall 

jeopardy evaluation, weigh such 

qualitative factors as severity of injury, 

significance of behavioral responses, 

and extent and severity of habitat 

disturbance. Approaches for evaluating 

take levels for biological opinions 

should contain options suitable to the 

varied species, available data sets, and 

actions under consideration. Use of any 

particular quantitative model such as 

PBR for every evaluation is 

inappropriate. Moreover, section 7 of 

the ESA and its implementing 

regulations do not require NMFS to 

estimate incidental take quantitatively. 

When promulgating the section 7 

regulations in 1986, NMFS and the U.S. 

Fish and Wildlife Service explicitly 

declined to endorse the use of 

numerical estimates of incidental take 

in all cases. In many biological 

opinions, a description of the extent of 

take is used because the loss of habitat 

resulting in death or injury of 

individuals may have more significant 

adverse consequences than the direct 

loss of a certain number of individuals 

(51 FR 19953, June 3, 1986). Where 

Federal actions ’take’ threatened or 

endangered species by altering the 

species’ habitat, it is often impossible to 

translate the habitat lost into numerical 

estimates of the number of individuals 

taken. Consequently, numerical 

estimates are not appropriate to every 

consultation, and requiring them 

through rulemaking could reduce the 

protections listed species currently 

receive. 

The analytical framework for 

evaluating take levels in biological 

opinions is not yet completed and has 

not been fully tested. NMFS has 

determined that it is premature to 

consider rulemaking to adopt the 

framework, or any other uniform 

decision approach, at this time. Thus, 

NMFS denies this component of the 

petition. 

References Cited 

Turtle Expert Working Group. 2000. 

Assessment update for the Kemp’s 

ridley and loggerhead sea turtle 

populations in the western North 

Atlantic. U.S. Dep. Commer. NOAA 

Tech. Mem. NMFS-SEFSC–444, 115 pp. 

NOAA Fisheries National Task Force 

for Improving Marine Mammal and 

Turtles Stock Assessment. September 

2004. A Requirements Plan for 

Improving Understanding of the Status 

of U.S. Protected Species. 

Authority: 16 U.S.C. 1531 et seq. 

Dated: November 28, 2005. 

Donna Wieting, 

Deputy Director, Office of Protected 

Resources, National Marine Fisheries Service. 

[FR Doc. 05–23537 Filed 11–30–05; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[Docket No. 051104291–5291–01; I.D. 

100405F] 

50 CFR Part 648 

RIN 0648–AT29 

Fisheries of the Northeastern United 

States; Spiny Dogfish; Framework 

Adjustment 1 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Proposed Rules 72101 

ACTION: Proposed rule; establishing a 

multiple-year specifications process. 

SUMMARY: NMFS proposes measures 

contained in Framework Adjustment 1 

(Framework 1) to the Spiny Dogfish 

Fishery Management Plan (FMP) that 

would allow the specification of 

commercial quotas and other 

management measures for up to 5 years. 

The intent is to provide flexibility and 

efficiency to the management of the 

species. 

DATES: Comments must be received on 

or before December 16, 2005. 

ADDRESSES: Copies of Framework 1, the 

Regulatory Impact Review (RIR), Initial 

Regulatory Flexibility Analysis (IRFA), 

and other supporting documents are 

available from Daniel Furlong, 

Executive Director, Mid-Atlantic 

Fishery Management Council, Room 

2115, Federal Building, 300 South 

Street, Dover, DE 19901–6790. The RIR/ 

IRFA is also accessible via the Internet 

at http://www.nero.nmfs.gov. 

Written comments on the proposed 

rule may be sent by any of the following 

methods: 

• Mail to the following address: 

Patricia A. Kurkul, Regional 

Administrator, NMFS, Northeast 

Regional Office, One Blackburn Drive, 

Gloucester, MA 01930. Mark the outside 

of the envelope ‘‘Comments on 

Framework 1 - Dogfish’’; 

• Fax to Patricia A. Kurkul at the 

following number: (978) 281–9135; 

• E-mail to the following address: 

DogFrame1@noaa.gov. Include in the 

subject line of the e-mail comment the 

following document identifier: 

‘‘Comments on Framework 1≥; 

• Electronically through the Federal 

e-Rulemaking portal: http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Eric 

Jay Dolin, Fishery Policy Analyst, (978) 

281–9259, fax (978) 281–9135. 

SUPPLEMENTARY INFORMATION: 

Background 

This framework adjustment to the 

FMP is intended to improve 

management of the Northeast Atlantic 

stock of spiny dogfish (Squalus 

acanthias), pursuant to the MagnusonStevens Fishery Conservation and 

Management Act of 1976, as amended 

(Magnuson-Stevens Act). Under the 

existing FMP, spiny dogfish are jointly 

managed by both the Mid-Atlantic and 

the New England Fishery Management 

Councils (Councils). The Councils 

recommend annual commercial quotas 

and other management measures (e.g., 

minimum or maximum fish sizes, 

seasons, mesh size restrictions, trip 

limits, or other gear restrictions), as 

needed, in order to ensure that the target 

F of 0.08 will not be exceeded. 

Implementing regulations for these 

fisheries are found at 50 CFR part 648, 

subpart L. Under the current FMP, the 

commercial quota and trip limits are 

specified annually and apply only to the 

following fishing year. 

The Councils developed Framework 

1, pursuant to § 648.237, in order to 

streamline the administrative and 

regulatory processes involved in 

specifying the fishing measures for 

spiny dogfish, while, at the same time, 

maintaining consistency with the 

Magnuson-Stevens Act. The proposed 

action would modify the FMP so that, 

within a given year, the Councils could 

specify commercial quotas and other 

management measures necessary to 

ensure that the target F of 0.08 will not 

be exceeded in each of the following 1 

to 5 years. Implementation of 

Framework 1 will provide the option, 

not the requirement, for Councils to 

specify multi-year management 

measures. All of the environmental and 

regulatory review procedures currently 

required under the Magnuson-Stevens 

Act and the National Environmental 

Policy Act will be conducted and 

documented during the year in which 

specifications are set. These analyses 

will consider impacts throughout the 

time span for which specifications are to 

be set (1 to 5 years). Multi-year quotas 

and other management measures would 

not have to be constant from year to 

year, but would instead be based upon 

expectations of future stock conditions 

as indicated by the best scientific 

information available at the time the 

multi-year specifications are set. 

Updated information on the resource 

and the fishery would be reviewed at 

least every 5 years by the Mid-Atlantic 

Fishery Management Council’s 

(MAFMC) Spiny Dogfish Monitoring 

Committee, the Joint Spiny Dogfish 

Committee and the Councils. 

Adjustments to the management 

measures, once implemented, would not 

be expected to occur during the period 

of multi-year specifications. 

Nevertheless, if new information 

indicated that modification to the multiyear management measures is necessary 

to ensure that the target F of 0.08 is not 

exceeded, the Councils would initiate 

the process for setting specifications in 

order to make such modifications. Given 

the elimination of the annual review/ 

management measure adjustment 

process under this proposed action, 

environmental impact evaluation in the 

specification setting year would have to 

thoroughly consider the uncertainty 

associated with projected estimates of 

stock size in the 1 to 5 year time 

horizon. Accordingly, Council 

recommendations for multi-year 

management measures would have to be 

adequately conservative to 

accommodate this uncertainty under the 

proposed action. 

During the development of 

Framework 1, the Councils considered 

and analyzed the following three 

alternatives for a multi-year 

specifications process: A no-action 

alternative, which would continue the 

requirement to establish spiny dogfish 

specifications on an annual basis; the 

proposed alternative; and an alternative 

that would require the Councils to 

conduct an annual review of the 

previously established multi-year 

specifications. The Councils selected 

the proposed action because it provided 

the most straightforward and efficient 

administrative process for establishing 

multi-year specifications, and because it 

is expected to provide greater 

predictability to the commercial fishing 

sector. 

Classification 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866. 

An IRFA was prepared that describes 

the economic impact this proposed rule, 

if adopted, would have on small 

entities. A description of the reasons 

why this action is being considered, and 

the objectives of and legal basis for this 

action is contained in the preamble of 

this proposed rule. The preamble also 

includes complete descriptions of the 

proposed, no action, and the other 

alternative discussed here. Under the 

current management system, the 

Councils annually submit a 

specifications document to NMFS for 

review. Under the other two 

alternatives, the Councils would submit 

a specifications document only in the 

first year of the multi-year specifications 

period, if applicable. This would reduce 

substantially the administrative burden 

on both the Councils and NMFS. 

Additionally, longer term specifications 

should provide greater predictability to 

the commercial fishing sector. Under 

the proposed alternative, an annual 

review of updated information on the 

fisheries by the MAFMC’s Spiny 

Dogfish Monitoring Committee, the Joint 

Spiny Dogfish Committee, and the 

Councils would not be required during 

the period of multi-year specifications 

because the analysis of multi-year 

measures would have evaluated the 

impacts of the measures for years 2 

through 5, as appropriate, in the 

specifications process. The Councils 

72102 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Proposed Rules 

concluded that the provision for an 

annual review would not be necessary 

and would reduce administrative 

efficiency. However, the Councils 

contemplate that a review would be 

initiated when new information 

indicated that modifications could be 

required to ensure that the target F of 

0.08 is not exceeded. 

There are no relevant Federal rules 

that duplicate, overlap, or conflict with 

this rule. This rule does not contain any 

new, nor does it revise any existing 

reporting, recordkeeping, and other 

compliance requirements. Framework 1 

deals only with the administrative 

periodicity of specifications process, 

and therefore would have minimal 

direct effect on entities participating in 

these fisheries. 

List of Subjects in 50 CFR Part 648 

Fishing, Fisheries, Reporting and 

recordkeeping requirements. 

Dated: November 25, 2005. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

For the reasons stated in the 

preamble, 50 CFR part 648 is proposed 

to be 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. Section 648.230 is revised to read 

as follows: 

§ 648.230 Catch quotas and other 

restrictions. 

(a) Process for setting specifications. 

The Spiny Dogfish Monitoring 

Committee will review the following 

data at least every five years, subject to 

availability, to determine the total 

allowable level of landings (TAL) and 

other restrictions necessary to assure 

that a target fishing mortality rate (F) of 

0.08 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 will not 

be exceeded in any fishing year (May 1 

- April 30), for a period of 1–5 fishing 

years. 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) Joint Spiny Dogfish Committee 

recommendation. 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 

will not be exceeded in any fishing year 

(May 1 – April 30), for a period of 1–

5 fishing years. The commercial quota 

may be set within the range of zero to 

the maximum allowed. 

(d) Council recommendations. 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 will not be exceeded in any 

fishing year (May 1 - April 30), for a 

period of 1–5 fishing years. 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 

and other management measures to 

assure that the target F specified in 

paragraph (a) of this section will not be 

exceeded in any fishing year (May 1 - 

April 30), for a period of 1–5 fishing 

years. 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 

meas ures necessary to assure that the 

F specified in paragraph (a) of this 

section will not be exceeded in any 

fishing year (May 1 - April 30), for a 

period of 1–5 fishing years. After 

considering public comments, NMFS 

shall publish a final rule in the Federal 

Register to implement such a quota and 

other measures. 

(e) Annual quota. [Reserved] 

(f) 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 31 (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. 

[FR Doc. 05–23536 Filed 11–30–05; 8:45 am] 

BILLING CODE 3510–22–S