[Federal Register Volume 60, Number 227 (Monday, November 27, 1995)]
[Rules and Regulations]
[Pages 58246-58251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28876]
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DEPARTMENT OF COMMERCE
50 CFR Part 697
[Docket No. 950605148-5261-02; I.D. 060195C]
RIN 0648-AH58
Atlantic Coast Weakfish Fishery; Moratorium in Exclusive Economic
Zone (EEZ)
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 prohibiting the possession in or
harvest from the exclusive economic zone (EEZ) of Atlantic coast
weakfish (weakfish) from Maine through Florida. The intent of the rule
is to provide protection for the overfished stock of weakfish, to
ensure the effectiveness of state regulations, and to aid in the
rebuilding of the stock.
EFFECTIVE DATE: December 21, 1995.
ADDRESSES: The Final Environmental Impact Statement/Regulatory Impact
Review prepared for this rule is available from William Hogarth, 301-
713-2339 or NMFS, F/CM3, 1315 East-West Highway, Silver Spring, MD
20910.
FOR FURTHER INFORMATION CONTACT: William Hogarth, 301-713-2339.
SUPPLEMENTARY INFORMATION:
Background
The background and rationale for this rule were contained in the
preamble to the proposed rule (60 FR 32130, June 20, 1995) and are not
repeated here.
Comments and Responses
NMFS held 9 public hearing to gather public comments on the
proposed rule and the Draft Environmental Impact Statement and Draft
Regulatory Impact Review (DEIS/RIR) documents. The hearings were held
on the following dates at the below listed localities:
Morehead City, North Carolina 7/10/95
Fall River, Massachusetts 7/10/95
Manteo, North Carolina 7/12/95
Setauket, New York 7/12/95
Salisbury, Maryland 7/12/95
Cape May Court House, New Jersey 7/12/95
Mayport, Florida 7/13/95
Newport News, Virginia 7/17/95
Dover, Delaware 7/18/95
A total of 226 individuals attended the hearings. Most of the
individuals commenting at the hearings from Massachusetts through New
Jersey were in favor of the rule. Some of the individuals at the
Setauket, New York hearing wanted a 16-inch size limit. One person at
the Cape May, New Jersey hearing opposed the rule as proposed.
Commenters at the Salisbury, Maryland hearing were in favor of some
Federal action, but not necessarily the preferred alternative. At the
Newport News, Virginia hearing, a number of individuals were for or
against the rule. In North Carolina, there was strong opposition
against the rule at the Manteo hearing, and an equal number of comments
for and against the rule at the Morehead City hearing. At the Florida
hearing, most individuals commented on a recent ban on commercial net
fishing imposed by the state.
Written comments were received from the following states and
organizations: The Atlantic States Marine Fisheries Commission
(Commission); New England, Mid-Atlantic and South Atlantic Regional
Fishery Management Councils; U.S. Fish and Wildlife Service; U.S.
Environmental Protection Agency (EPA); Delaware Division of Fish and
Wildlife; New York State Department of Environmental Conservation
Division of Marine Resources; Commonwealth of Massachusetts Division of
Marine Fisheries; North Carolina Division of Marine Fisheries; Georgia
Department of Natural Resources; North Carolina Fisheries Association,
Inc.; Center for Marine Conservation; Salt Water Sportsman; Chesapeake
Bay Foundation; Shelter Rock Rifle and Pistol Club; Atlantic Coast
Conservation Association of Virginia; National Audubon Society Living
Oceans Program; American Sportfishing Association; Maryland Saltwater
Sportfishermen's Association, Inc.; Huntington Anglers Club; Virginia
Citizens Coalition-Good Government; Imperial Sportsmen's Club, Inc.;
Bay Shore Tuna Club; Oakdale Sportsmans Club; Virginia Anglers Club;
Suffolk County Senior Citizens Fishing Club; East Islip Anglers and
Boating Association, Inc.; and the New York Sportfishing Federation. Of
the states and organizations that submitted written comments, all
support the proposal except the State of North Carolina and the North
Carolina Fisheries Association. The Georgia Department of Natural
Resources and the U.S. EPA both supported the proposal and recommended
changes and/or clarifications that are addressed in this document.
In addition, written comments were received from 645 individuals
from Virginia; 16 from North Carolina; 56 from Maryland; 8 from
Delaware; 6 from Pennsylvania; 5 from New York; 5 from New Jersey; and
one each from West Virginia, the District of Columbia, South Carolina,
Indiana and Michigan for a total of 746 individuals of which 740
supported and 6 opposed the proposed rule.
In summarizing comments, it was difficult to differentiate between
comments addressing the proposed rule, the DEIS/RIR, or both.
Therefore, comments and responses on the two documents are listed
together. A more detailed description of comments and NMFS responses is
included in the Final Environmental Impact Statement and Regulatory
Impact Review (FEIS/RIR) published by EPA in the Federal Register on
October 6, 1995.
1. Comment: NMFS should be commended for taking actions to protect
the declining weakfish fishery. The preferred alternative, to prohibit
the harvest and possession of weakfish in the EEZ, seems appropriate
since it is easy to understand and enforce. Why was the exemption for
the possession of weakfish in the Block Island Sound area included? The
FEIS/RIR should include an explanation for the Block Island exemption.
Response: The exemption in the DEIS/RIR was to allow fishermen from
Block Island, Rhode Island, to transport weakfish through the EEZ to
land at ports in Rhode Island. Currently, there are few weakfish
landings from the Block Island Sound area, and comments received from
the States of Massachusetts and Rhode Island agreed with your comment
that the exemption should not be implemented. NMFS concurs and the
exemption is deleted in the FEIS/RIR.
2. Comment: Several commenters called into question the findings on
the status of the weakfish stock, contending that the DEIS/RIR used
inaccurate assumptions, and/or did not include 1994 data.
Response: The 1994 data were not available when the DEIS/RIR was
drafted. NMFS extended the comment period and during the extension
worked
[[Page 58247]]
through the Commission to obtain the 1994 data. Since publishing the
DEIS/RIR, 1994 data and a preliminary stock assessment analysis have
been made available to NMFS by the Commission's weakfish stock
assessment scientists. NMFS is satisfied that the assumptions used in
the stock assessment are valid. Analysis of the 1994 data has shown
that there has been some reduction in fishing mortality, but the
mortality rate is still too high to allow rebuilding, and the stock is
expected to decline unless further conservation measures are taken.
NMFS still finds the weakfish stock severely overfished and in need of
the conservation measures in this rule.
3. Comment: Under 50 CFR part 602, a Federal fishery management
plan must specify a point in time by which an overfished stock must be
rebuilt. A rebuilding schedule should be established for weakfish based
on the life history of the species (e.g., one or one and a half
generation time frame). The Commission's Weakfish Technical Committee
should be consulted regarding an appropriate rebuilding time-line for
weakfish. Additionally, what, if any, trigger is provided for reopening
the EEZ to harvest of weakfish? Language similar to that found in the
South Atlantic Fishery Management Council's Red Drum FMP should be
included. Specifically, NMFS should maintain the prohibition of harvest
and possession of weakfish in or from the EEZ until a specified SSB per
recruit is attained and until such time as a TAC is specified by
regulatory notice, the Secretary, or whatever the appropriate mechanism
is that provides for harvest in the EEZ.
Response: NMFS agrees. It is our understanding that Amendment 3 to
the Commission's weakfish plan will include a rebuilding schedule in
addition to the target F. NMFS believes that a realistic rebuilding
schedule would be 2-5 years after a moratorium is put in place and the
states adhere to the Commission requirements. The target for removal of
the moratorium would be a SSB per recruit of 20 percent, which is the
current long term rebuilding level used by the Commission.
4. Comment: In Section 4.2(1) of the DEIS/RIR there is discussion
of the impact of the alternative on the discard mortality of undersize
weakfish in the directed fishery, but there is no mention of the
impacts related to discard mortality of weakfish caught as bycatch in
other fisheries. In its current form, the preferred alternative does
not provide any additional gain in terms of reducing discard mortality
in non-directed fisheries in the EEZ, especially the shrimp fishery.
The relationship of the preferred alternative to bycatch reduction
plans currently under development by the South Atlantic states and by
the South Atlantic Fishery Management Council (SAFMC) needs to be
clarified. Will the SAFMC's Shrimp FMP Amendment 2, pertaining
specifically to bycatch, supersede this proposed Secretarial action as
it relates to shrimp trawl bycatch in the EEZ?
Response: NMFS has further addressed bycatch and discards in the
FEIS/RIR and in other responses to written comments on bycatch. The
SAFMC's Shrimp FMP could control the bycatch requirements in the EEZ
along with the Commission requirements, if the shrimp plan is amended
properly, as they relate to reduction requirements and gear. However,
the possession of weakfish in the EEZ will be controlled by the
weakfish rule.
5. Comment: A number of commenters were concerned that implementing
the rule would increase the bycatch (discards) of weakfish in non-
directed EEZ fisheries and in directed and non-directed state
fisheries.
Response: The rule would reduce some bycatch of small weakfish in
the EEZ because there would be no directed EEZ fishery, and, therefore,
bycatch from directed weakfish trips would be eliminated. The rule
would not eliminate the discard mortality of undersize weakfish, as
well as other species such as spot and Atlantic croaker, in the non-
directed fisheries in the EEZ and in state waters. NMFS recognizes that
a major problem with managing weakfish is how to reduce or control the
bycatch of weakfish in other fisheries. The Commission is requiring
states from North Carolina to Florida to implement bycatch reduction
devices (BRDs) in shrimp trawls to reduce bycatch of weakfish by 50
percent. North Carolina met this requirement approximately 3 years ago.
In addition, the SAFMC is holding public hearings on several
alternatives that will lead to an amendment to the Council's shrimp
management plan that will address finfish bycatch. Several states,
including Virginia and North Carolina, are experimenting with finfish
escape panels for pound nets and haul seines. Bycatch can be minimized
by implementing season closures and/or closed areas, and gear
restrictions and modifications.
The NMFS rule to prohibit the harvest and possession of weakfish in
the EEZ is aimed at complementing the Commission's weakfish plan and
the individual state fishing plans approved by the Commission. The
Commission's plan requires states to adopt mesh restrictions and retain
these as part of their approved fishing plans until March 1996. NMFS
believes that the problem of bycatch presently is being addressed by
the states and Councils and that the measures they have put in place,
or that they will implement, should reduce the major sources of bycatch
mortality.
NMFS is aware that, even with the implementation of state
regulations, there will still be some discards and the problem could
increase as the stock rebuilds and larger fish enter the population.
Some discards are unavoidable, but are acceptable to achieve the long
term gains to the stock that will occur from closing the EEZ to
weakfish harvest and possession. NMFS will reconsider the moratorium
when the spawning stock biomass reaches 20 percent, the Commission
rebuilding goal. NMFS is also aware that there is the possibility that
some of the effort will simply move inshore to state waters. However,
through the Commission's plan, states will continue to implement their
approved state fishing plans, and require mesh sizes for gear used to
take weakfish that correspond to the minimum weakfish size that has
been chosen in their plans. This will reduce total bycatch and
discards.
NMFS will monitor the effectiveness of the rule including the
bycatch and discard mortality and take additional actions to reduce
weakfish bycatch if they are necessary to rebuild the stock.
6. Comment: A closure by NMFS in the EEZ violates the intent of
Amendment 1 of the Commission's weakfish plan by removing the
flexibility given to the states.
Response: The closure in the EEZ supports the Commission's effort
to reduce fishing mortality. The need to protect a seriously declining
stock overrides the desire to maintain flexibility in the EEZ fishery.
Fisheries will continue in state waters and states are allowed
flexibility as long as their regulations are approved by the
Commission.
7. Comment: States can impose their own regulations in the EEZ and
these landings can be enforced by the Coast Guard with a ``Memorandum
of Understanding'' (MOU).
Response: In the absence of Federal rules, states may regulate only
their own citizens when fishing in the EEZ. However, the states' rules
to implement the Commission's weakfish plan are not identical among
states, therefore, making enforcement of such rules in the EEZ among
many states' fishermen impracticable. Also, not all states have
[[Page 58248]]
a MOU with the Coast Guard to carry out enforcement of their rules in
the EEZ.
8. Comment: There are no accurate data that divide EEZ and state
water catches. The importance of tabulating the EEZ catch is that the
North Carolina fishermen are complying with the Commission's plan.
Response: NMFS concedes that landings from the EEZ are difficult to
verify. However, NMFS considers the landings information accurate
enough to estimate that a considerable amount of the fishery for
weakfish takes place in the EEZ. Overall State and Federal landings
were used in the stock assessment. Compliance with the Commission's
plan in state waters by North Carolina fishermen is assumed as part of
the cooperative management program on weakfish.
9. Comment: The statement in the document that the flynet fishery
continues to catch thousands of weakfish as bycatch to obtain ``10's''
of salable fish is wrong.
Response: NMFS agrees with this statement. A review of the document
has shown that the statement should have said ``10,000's of salable
fish.'' However, NMFS is concerned over the large number of small fish
taken in the flynet fishery. A review of North Carolina flynet data has
shown that the flynet fishery takes a large portion of small fish, many
of which are discarded at sea.
10. Comment: Less than 20 percent of the flynet landings are less
than 10 inches in length.
Response: Although less than 20 percent of the flynet landings are
10 inches in length, there are discards at sea of large numbers of fish
smaller than 10 inches that are not landed. In addition, see North
Carolina Division of Marine Fisheries flynet discussion on page 8 of
the FEIS/RIR.
11. Comment: Several commenters said that the assumption that there
would be an insignificant initial impact on very few fisherman with
minimal cost to the government is false. Also, one commenter wanted a
complete ``regulatory flexibility analysis'' prepared.
Response: NMFS concedes that there will be impacts to fishermen;
however, for impacts to be considered significant under the DEIS/RIR
they must exceed $100 million. NMFS does not expect impacts of the rule
to exceed the $100 million level. No regulatory flexibility analysis is
required unless there is a significant impact on a substantial number
of small entities. Although directed fisheries are conducted for
weakfish in the EEZ, the entire commercial landings from the EEZ in
recent years has been valued at less than 2 million dollars.
12. Comment: The assumption that the enforcement of the rule is
clear is wrong.
Response: NMFS assumption that enforcement of the rule will be
clear is based on the fact that the rule imposes a complete prohibition
on fishing and possession of weakfish in the EEZ. NMFS has no reason to
assume that enforcement of the rule will not be easily understood by
fishermen and law enforcement officials.
13. Comment: North Carolina harvested over 65 percent by weight of
the weakfish landings. Why isn't the South Atlantic Council writing a
weakfish plan?
Response: Historical landings show that weakfish were an important
Mid-Atlantic fishery and weakfish had been under consideration for
management planning by the Mid-Atlantic Fishery Management Council.
However, because of workloads on other species, the Mid-Atlantic
Council has requested that NMFS assist the Commission's effort to
manage the species.
14. Comment: The rule does not take into account and allow for
variations among and contingencies in fisheries, fishery resources, and
catches. A moratorium would take away the ability of North Carolina to
redirect its fisheries through regulations or adapt to changes in fish
populations or Commission guidelines.
Response: The rule is designed to deal with a severely depressed
stock so options to rebuild the fishery are limited. Since the rule
does not include state waters, it leaves flexibility for states,
through the Commission, to address interactions with other fisheries
and conduct some controlled fishing in state waters.
15. Comment: The states' and the Commission's actions are beginning
to stabilize the weakfish population. NMFS needs to allow more time for
these management measures to take effect before proposing more
restrictive measures.
Response: The recent updated stock assessment (1994) shows that the
weakfish population continues to be overfished and that recruitment of
young fish to the fishery may be in jeopardy. The Commission's Weakfish
Management Board has endorsed NMFS' efforts to implement the rule.
Therefore, NMFS sees no reason to delay action.
16. Comment: If the rule is trying to protect a few year classes of
fish to allow them to spawn, then why is there any harvest at all
allowed in the spring in spawning areas?
Response: Spring spawning takes place in state waters. Under the
current Commission's plan, states are allowed, within limits, to take
weakfish as long as the long term fishing mortality reductions are
accomplished. Under the provisions of the Atlantic Coastal Fisheries
Cooperative Management Act, NMFS has no authority to implement
regulations in state waters, except moratoria if states do not comply
with the Commission's plan. Fishermen have to work through the
Commission and state fisheries agencies to influence regulations in
state waters.
17. Comment: Several commenters proposed using a 12-inch size limit
in the EEZ because it is enforceable, reduces conflict in state and
internal waters, and saves more weakfish than a complete closure.
Response: NMFS disagrees. A minimum size limit would still allow
for a directed fishery which would provide an economic incentive to
harvest. A moratorium negates all economic incentive to harvest,
thereby limiting fishing mortality to the maximum extent possible.
18. Comment: To reduce recreational weakfish mortality, NMFS should
reduce the minimum size to 12 inches. This will reduce catch and
release mortality by allowing anglers to keep fish that would have to
be thrown back dead.
Response: The rule is designed to reduce fishing pressure on
weakfish in the EEZ to the maximum extent. Under the rule, directed
fishing for weakfish will not be allowed and weakfish caught incidental
to other recreational fishing must be immediately returned to the
water. Allowing take and possession of 12-inch and over fish would
encourage more fishing, not reduce fishing mortality.
19. Comment: NMFS should establish a no-trawl-zone at the mouth of
large estuaries such as the Delaware and Chesapeake Bays. The closed
area should be within a twelve mile radius centered at the mouth of
each bay on the demarcation line. An alternative that has been
suggested would be to extend the EEZ out to the twelve mile line all
along the Mid-Atlantic coast and designate the waters inside of the 12
miles as a special management zone. The plan would still allow other
types of fishing as long as the vessel is not trawling or using gear
that would damage bottom structure.
Response: Establishing a no-trawl-zone out to twelve miles at the
mouth of major estuaries would not protect weakfish from other fishing
gears within
[[Page 58249]]
the closed trawl zone and would not reduce fishing effort on weakfish
because fishing effort could be increased in the rest of the EEZ. The
proposed alternative suggestion of designating all Mid-Atlantic waters
out to 12 miles as a special management zone would be complicated to
enforce and would not protect weakfish throughout the EEZ.
20. Comment: The closure will increase fishing efforts in state
waters.
Response: NMFS concedes that there may be some shift in fishing
effort to state waters. However, states allow fishing in their waters
under the guidance of the Commission's plan, which is designed to
control fishing effort.
21. Comment: Incidental weakfish bycatch should be allowed.
Throwing back dead weakfish taken while fishing for other species is
wasteful.
Response: NMFS believes it would be too difficult to determine that
weakfish were caught as unwanted bycatch in a non-directed fishery.
Allowing retention of dead fish may encourage directed fishing. It
would also make the rule difficult to enforce.
22. Comment: The assumption that bycatch problems still exist in
the South Atlantic shrimp fisheries lacks basis. The DEIS/RIR ignores
the ongoing work by the shrimp industry to reduce by catch.
Response: States are required through the Commission's weakfish
plan to reduce weakfish bycatch by 50 percent by the 1996 shrimping
season. While the use of Turtle Excluder Devices (TEDs) and
experimental programs is reducing some bycatch, only North Carolina has
an approved Commission weakfish bycatch reduction program implemented
in its waters. NMFS believes that bycatch of weakfish in South Atlantic
shrimp fisheries will continue to be a problem until approved bycatch
programs are implemented throughout the south Atlantic area.
23. Comment: There will be long term economic impacts because of
the shift in effort of fishing vessels to other stressed species in
inshore waters.
Response: NMFS acknowledges that some vessels may shift effort to
other species or into inshore waters. Because the stock is severely
overfished, the need to protect and rebuild the fishery takes precedent
over the immediate economic impacts. Since there still is some
recruitment, this rule, when enacted with companion Commission actions,
should rebuild the fishery in 2-5 years.
24. Comment: A lack of regulatory management is not a problem off
the North Carolina Coast.
Response: Because of the poor condition of the stock, NMFS
considers weakfish in need of more management along the entire Atlantic
Coast, including the EEZ off of North Carolina.
25. Comment: The commercial industry in North Carolina has concerns
over the credibility of the process being followed for the DEIS/RIR.
The same staff that developed the DEIS/RIR are also taking and
reviewing comments and making recommendations on the closure to higher
NMFS officials.
Response: NMFS Headquarters, Northeast and Southeast Regional and
Science Center staff have cooperated in the preparation of the DEIS/RIR
and responses to the comments. These personnel are the most familiar
with the weakfish fishery and are, therefore, the most qualified to
review comments and make recommendations to higher NMFS officials, who
also provide some measure of oversight.
26. Comment: The rule does not provide for maximum protection of
weakfish because only 27 percent of all fishing mortality on weakfish
results from directed recreational and commercial fishing gears.
Response: The rule gives maximum protection for weakfish in the EEZ
employing available conservation and management measures because
fishing for and/or possession is not allowed.
27. Comment: Alternative C states that this alternative ``would
increase the harvest of weakfish.'' North Carolina harvests over 50
percent of the weakfish in the EEZ with a 10-inch size limit.
Consequently, moving to a 12-inch size limit with appropriate mesh
sizes and maintaining the closure south of Cape Hatteras to flynets
will not increase the harvest.
Response: Alternative C, if implemented with a 12-inch size limit
with appropriate mesh, would reduce catch in North Carolina waters, but
it would also increase catch off of other states that now have minimum
size limits over 12 inches. Also, Alterative C, with a 12-inch size
limit off of North Carolina, would be too difficult to enforce because
there are other size limits and different companion weakfish
regulations in place off of other states.
28. Comment: Implementing the proposed rule would create an
increased effort in state waters that may increase contacts with marine
mammals and sea turtles, an incident that could jeopardize all fishing
in coastal waters.
Response: Implementing the rule may increase fishing effort in
state waters, but fishermen would still be required to fish under
Federal and State laws that protect marine mammals and sea turtles. A
biological opinion issued by NMFS concluded that the proposed weakfish
regulation may affect, but will not likely jeopardize the continued
existence of endangered and threatened sea turtles, marine mammals, and
fish under NMFS jurisdiction. In addition, state biologists from New
Jersey, Maryland, New York, and Virginia have stated that due to state
regulations, they do not expect effort to shift inshore. If North
Carolina keeps the area south of Cape Hatteras closed to flynet
fishery, this will reduce potential impacts to endangered species as
well.
National Standard Comments and Responses
NMFS received a number of comments that claimed that the proposed
rule did not meet the National Standards of the Magnuson Fishery
Conservation and Management Act (Magnuson Act).
The comments and responses are listed below:
National Standards - General
29. Comment: If the EEZ is closed, the bycatch and resulting waste
will violate all of the National Standards in the Magnuson Act.
Response: The overriding need to protect the severely declining
weakfish stock necessitates the EEZ closure (See response to comment
21). NMFS believes the measures in the rule are consistent with the
Magnuson Act. If bycatch of weakfish contributes to significant
mortality so as to negate stock rebuilding, NMFS will consider further
measures.
National Standard 1
30. Comment: Closing the EEZ does not promote optimum yield.
Response: The proposed rule does promote the objectives of optimum
yield because it is designed to rebuild stocks so that fisheries can
eventually be reopened with healthier stock.
National Standard 2
31. Comment: The scientific information used to support the
proposed rule has been changed to show a different age length at
spawning composition.
Response: NMFS delayed publishing the FEIS until the 1994 stock
assessment was completed. Upon a review of this stock assessment, it
was determined to be consistent with and re-enforced the data on which
NMFS had based its decision; the stock continues to be severely
overfished and the biological indicators remain lower than the long-
term averages. The 1994 assessment has incorporated several changes
since the
[[Page 58250]]
last assessment, which should improve the accuracy of the assessment
and better reflect the weakfish fishery. These include: revision of the
catch-at-age-matrix to reflect the ``new'' Marine Recreational
Fisheries Statistics Survey (MRFSS) methodology; new shrimp bycatch
estimates which have been re-estimated and linked to shrimp fishery
effort; additional fishery independent survey data which were
unavailable in past assessments; new recreational fishery dependent
citation data from Virginia, North Carolina, Maryland and Delaware;
changes in the maturation schedule to reflect a 90 percent maturation
at age one rather than the 50 percent used in the past; and a new
Virtual Population Analysis (VPA) Model which is more consistent with
the changing regulations in the weakfish fishery. However, the bottom
line remains the same; weakfish stock continues to be severely
overfished.
National Standard 3
32. Comment: Since the rule only includes measures for the EEZ, it
does not manage the weakfish throughout its range.
Response: The proposed rule does manage weakfish throughout its
range because it covers the entire range of weakfish in the EEZ and
supports the Commission's effort to manage weakfish when they are in
state waters.
33. Comment: Closing the EEZ, while the states have a different
form of management, is not close coordination of management.
Response: The rule was developed in close coordination with the
states through the Commission, which is also attempting to reduce
fishing mortality on weakfish in state waters. The rule implements a
measure that is consistent with the various regulations of the states.
National Standard 4
34. Comment: The rule does not meet National Standard 4 because it
would only affect commercial fishing since most commercial fishing in
some states takes place in the EEZ.
Response: The rule is consistent with National Standard 4 because a
complete closure to fishing in the EEZ treats all fishermen fishing in
the EEZ equally and therefore does not discriminate between residents
of different states.
35. Comment: The rule is not fair and equitable because its intent
is to stop North Carolina fishermen from harvesting weakfish so that
there will be harvest in other states, especially in New England.
Response: The purpose of the rule is to reduce fishing mortality on
weakfish in the EEZ. With the weakfish stock in a depressed state, the
species geographic range is constricted to the central areas of
population density (mostly off of North Carolina and to a lesser extent
through Delaware). Therefore, the major fishery is presently conducted
by North Carolina fishermen. Fishing mortality can not be significantly
reduced unless restrictions are placed in the areas where the fishery
operates. In order for the rule to be effective, it must include the
EEZ off North Carolina. The same restriction also applies to the EEZ
off other east coast states. The intent of the rule is to rebuild the
weakfish fishery along its entire historical range (Massachusetts
through Florida), including waters off North Carolina.
36. Comment: Closing the EEZ to commercial fishing to allow
sportfishing to increase landings is discriminatory.
Response: The rule is not discriminatory because it closes the EEZ
to both commercial and recreational fishing and is designed to rebuild
stocks so that both commercial and recreational fisheries will benefit.
37. Comment: The closure was not reasonably calculated to promote
conservation.
Response: The rule is reasonably calculated to promote conservation
because a closure gives protection to weakfish stocks in the EEZ.
38. Comment: No attempt was made to partition fishing mortality by
state. The impression is that these regulations would be added to North
Carolina in addition to existing regulations.
Response: Because weakfish migrate throughout most of the east
coast EEZ, a closure of the waters off a selected state(s) would not be
effective since gains made in reducing fishing mortality in one area
could be negated by fishing in other areas. The rule's effects are
additive to state regulations because the rule is design to complement
the fishing reduction mortality program in the Commission's weakfish
fisheries management plan that is implemented in state waters.
National Standard 5
39. Comment: The rule does not promote efficiency because throwing
back fish caught incidentally in the EEZ is not efficient.
Response: NMFS concedes that some fish may be thrown back dead.
However, allowing some fish to be kept would only encourage more
fishing for weakfish. The overriding need to protect the depressed
stock takes precedence.
40. Comment: The rule is a move by NMFS to increase the landing
size to 12 inches, therefore, allocating the resource to those who take
larger fish.
Response: The proposed rule does not have economic allocation as
its purpose since all fishermen are treated the same. The rule has no
size limit. It is a prohibition on the take and possession of weakfish
in the EEZ, without regard to the size of the fish.
National Standard 6
No comments received.
National Standard 7
41. Comment: Most states are in compliance with the Commission's
regulations. Therefore, the rule is an unnecessary duplication.
Response: The rule is not a duplication because it supports the
Commission's effort to reduce fishing mortality on weakfish by insuring
that there will be a comprehensive program to reduce fishing mortality
on weakfish as they migrate throughout their State and Federal range.
Changes from the Proposed Rule
The definition section, Sec. 697.2, of the proposed rule contained
14 definitions. Eleven of these definitions were
already defined in Sec. 620.2 of title 50 of the CFR. Any terms
defined in Sec. 620.2 are common to all domestic fishing regulations
appearing in parts 630 through 699. Therefore, the eleven definitions
were removed from the final rule to avoid duplication. In addition,
eleven prohibitions listed in the proposed rule were reduced to four
since seven of these prohibitions already appeared in Sec. 620.7 and
again would have been duplicative.
Classification
The final rule has been determined to be not significant for
purposes of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that the proposed rule would not have
a significant economic impact on a substantial number of small
entities. This certification remains valid for this final rule. The
reasons were published in the proposed rule. As a result, a regulatory
flexibility analysis was not prepared.
List of Subjects in 50 CFR Part 697
Fisheries, Fishing.
Dated: November 21, 1995.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, part 697 is added to 50
CFR chapter VI to read as follows:
[[Page 58251]]
PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT
Subpart A--Atlantic Coast Weakfish Fishery
Sec.
697.1 Purpose and scope.
697.2 Definitions.
697.3 Prohibitions.
697.4 Relation to the Magnuson Act.
697.5 Civil procedures.
697.6 Specifically authorized activities.
Subpart B--[Reserved]
Authority: 16 U.S.C. 5101 et seq.
Subpart A--Atlantic Coast Weakfish Fishery
Sec. 697.1 Purpose and scope.
The regulations in this part implement section 804(b) of the
Atlantic Coastal Fisheries Cooperative Management Act, 16 U.S.C. 5101
et seq., and govern fishing for and possession of Atlantic Coast
weakfish in the EEZ.
Sec. 697.2 Definitions.
In addition to the definitions in the Magnuson Act and in
Sec. 620.2 of this chapter, the terms used in this part have the
following meanings:
Act means the Atlantic Coastal Fisheries Cooperative Management
Act, 16 U.S.C. 5101 et seq.
Atlantic Coast weakfish means members of stocks or populations of
the species Cynoscion regalis, found in the waters of the Atlantic
Ocean north of Key West, FL.
Land means to begin offloading fish, to offload fish, or to enter
port with fish.
Sec. 697.3 Prohibitions.
In addition to the prohibitions set forth in Sec. 620.7 of this
chapter, the following prohibitions apply. It is unlawful for any
person to do any of the following:
(a) Fish for Atlantic Coast weakfish in the EEZ;
(b) Harvest any Atlantic Coast weakfish from the EEZ;
(c) Possess any Atlantic Coast weakfish in or from the EEZ;
(d) Fail to return to the water immediately, with the least
possible injury, any Atlantic Coast weakfish taken within the EEZ; or
(e) Make any false statement, oral or written, to an authorized
officer concerning the taking, catching, harvesting, landing, shipping,
transporting, selling, offering for sale, purchasing, importing or
exporting, or transferring of any Atlantic Coast weakfish.
Sec. 697.4 Relation to the Magnuson Act.
The provisions of sections 307 through 311 of the Magnuson Act, as
amended, regarding prohibited acts, civil penalties, criminal offenses,
civil forfeitures, and enforcement apply with respect to the
regulations in this part, as if the regulations in this part were
issued under the Magnuson Act.
Sec. 697.5 Civil procedures.
The civil procedure regulations at 15 CFR part 904 apply to civil
penalties, seizures, and forfeitures under the Act and the regulations
in this part.
Sec. 697.6 Specifically authorized activities.
NMFS may authorize for the acquisition of information and data,
activities that are otherwise prohibited by these regulations.
Subpart B--[Reserved]
[FR Doc. 95-28876 Filed 11-21-95; 4:45 pm]
BILLING CODE 3510-22-F
