30012 Federal Register / Vol. 74, No. 120 / Wednesday, June 24, 2009 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 090129076–9926–02] 

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: Final rule. 

SUMMARY: NMFS announces approval of 

Framework Adjustment 2 (Framework 

2) to the Spiny Dogfish Fishery 

Management Plan (FMP), which was 

developed by the Mid-Atlantic and New 

England Fishery Management Councils 

(Councils). Framework 2 broadens 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 also establishes 

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-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). This action 

modifies the process for defining and 

peer-reviewing the stock status 

determination criteria, as defined in the 

FMP and does not implement or change 

any regulations. 

DATES: Effective July 24, 2009. 

ADDRESSES: Copies of Framework 

Adjustment 2 are available from Daniel 

T. Furlong, Executive Director, MidAtlantic 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: 

Emily Bryant, Fishery Policy Analyst, 

phone: 978–281–9244, fax: 978–281– 

9135. 

SUPPLEMENTARY INFORMATION: 

Background 

A proposed rule for this action was 

published in the Federal Register on 

March 3, 2009 (74 FR 9208), with public 

comment accepted through April 2, 

2009. This final rule is unchanged from 

the proposed rule. A complete 

discussion of the development of 

Framework 2 appears in the preamble to 

the proposed rule and is not repeated 

here. 

Framework 2 is 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. Framework 

2: 

1. Redefines, in general terms, the 

stock status determination criteria for 

spiny dogfish; 

2. Defines what constitutes an 

acceptable level of peer review; and 

3. Provides 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. 

Redefined Stock Status Determination 

Criteria 

Framework 2 redefines 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, 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 

(Bmsy) (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 Bmsy 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 Bmsy, under the same 

definition of productive capacity as 

specified for the minimum stock size 

threshold. 

Under Framework 2, the stock status 

determination criteria are 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 are more readily adopted 

through the specification-setting 

process. The Councils would still 

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 Northeast Fisheries Science 

Center’s (NEFSC) Stock Assessment 

Workshop (SAW) and Stock Assessment 

Review Committee (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 includes 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. 

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. Or, the terms 

of reference may not be followed and no 

recommendations for the suitability of 

Federal Register / Vol. 74, No. 120 / Wednesday, June 24, 2009 / Rules and Regulations 30013 

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 states 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 states 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 

states 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 SSCs 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. 

Comments and Responses 

No comments specific to Framework 

2 were received during the public 

comment period. NMFS received three 

comments under the Framework 2 

proposed rule, but all were actually 

regarding the spiny dogfish 2009 

specifications and management 

measures proposed rule (74 FR 11706, 

March 19, 2009), which was open for 

public comment at the same time. 

NMFS responded to those comments in 

the final rule for the spiny dogfish 2009 

specifications and management 

measures (74 FR 20230, May 1, 2009). 

Classification 

Pursuant to section 304 (b)(1)(A) of 

the Magnuson–Stevens Act, the NMFS 

Assistant Administrator has determined 

that this rule is consistent with the 

Spiny Dogfish FMP, other provisions of 

the Magnuson–Stevens Act, and other 

applicable law. 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration during 

the proposed rule stage that this action 

would not have a significant economic 

impact on a substantial number of small 

entities. The factual basis for the 

certification was published in the 

proposed rule and is not repeated here. 

No comments were received regarding 

this certification. As a result, a 

regulatory flexibility analysis was not 

required and none was prepared. 

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

Dated: June 18, 2009. 

Samuel D. Rauch III 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. E9–14882 Filed 6–23–09; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 0810141351–9087–02] 

RIN 0648–XP97 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Greenland Turbot, 

Arrowtooth Flounder, and Sablefish by 

Vessels Participating in the 

Amendment 80 Limited Access Fishery 

in Bering Sea and Aleutian Islands 

Management Area 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is closing directed 

fishing for Greenland turbot, arrowtooth 

flounder, and sablefish by vessels 

participating in the Amendment 80 

limited access fishery in the Bering Sea 

and Aleutian Islands management area 

(BSAI). This action is necessary to 

prevent exceeding the 2009 halibut 

bycatch allowance specified for the 

trawl Greenland turbot, arrowtooth 

flounder, and sablefish fishery category 

by vessels participating in the 

Amendment 80 limited access fishery in 

the BSAI. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), June 19, 2009, through 

2400 hrs, A.l.t., December 31, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Steve Whitney, 907–586–7269. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

BSAI according to the Fishery 

Management Plan for Groundfish of the 

Bering Sea and Aleutian Islands 

Management Area (FMP) prepared by 

the North Pacific Fishery Management 

Council under authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act. 

Regulations governing fishing by U.S. 

vessels in accordance with the FMP 

appear at subpart H of 50 CFR part 600 

and 50 CFR part 679. 

The 2009 halibut bycatch allowance 

specified for the trawl Greenland turbot, 

arrowtooth flounder, and sablefish 

fishery category by vessels participating 

in the Amendment 80 limited access 

fishery in the BSAI is 5 metric tons as 

established by the final 2009 and 2010 

harvest specifications for groundfish in 

the BSAI (74 FR 7359, February 17, 

2009). 

In accordance with 

§ 679.21(e)(3)(vi)(B) and 

§ 679.21(e)(7)(v), the Administrator, 

Alaska Region, NMFS, has determined 

that the 2009 halibut bycatch allowance 

specified for the trawl Greenland turbot, 

arrowtooth flounder, and sablefish 

fishery category by vessels participating 

in the Amendment 80 limited access 

fishery in the BSAI has been caught. 

Consequently, NMFS is closing directed 

fishing for Greenland turbot, arrowtooth 

flounder, and sablefish by vessels 

participating in the Amendment 80 

limited access fishery in the BSAI. 

After the effective date of this closure 

the maximum retainable amounts at 

§ 679.20(e) and (f) apply at any time 

during a trip. 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA 

(AA), finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 5 

U.S.C. 553(b)(B) as such requirement is 

impracticable and contrary to the public 

interest. This requirement is 

impracticable and contrary to the public 

interest as it would prevent NMFS from 

responding to the most recent fisheries 

data in a timely fashion and would 

delay the closure of directed fishing for 

Greenland turbot, arrowtooth flounder, 

and sablefish by vessels participating in 

the Amendment 80 limited access 

fishery in the BSAI. NMFS was unable 

to publish a notice providing time for 

public comment because the most 

recent, relevant data only became 

available as of June 18, 2009. 

The AA also finds good cause to 

waive the 30-day delay in the effective 

date of this action under 5 U.S.C. 

553(d)(3). This finding is based upon