[Federal Register Volume 62, Number 183 (Monday, September 22, 1997)]
[Rules and Regulations]
[Pages 49451-49456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24921]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 697
[Docket No. 970829213-7213-01; I.D. 091696A]
RIN 0648-AJ15
Atlantic Coast Weakfish Fishery; Change in Regulations for the
Exclusive Economic Zone
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: ACTION: Final rule.
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SUMMARY: NMFS is issuing regulations for the exclusive economic zone
(EEZ) offshore from Maine through Florida that impose a minimum size
limit of 12 inches (30.5 cm) (total length); minimum mesh sizes in the
EEZ of 3 1/4-inch (8.3 cm) square stretch mesh or 3 3/4-inch (9.5 cm)
diamond stretch mesh for trawls, and 2 7/8-inch (7.3 cm) stretch mesh
for gill nets; a bycatch possession limit of 150 lb (67 kg) for
fisheries using smaller mesh sizes for any one day or trip, whichever
is longer; a prohibition on the use of flynets in a closed area of the
EEZ off North Carolina, south of Cape Hatteras from 3 nm to about 40 nm
offshore; a prohibition on the possession of any weakfish in the closed
area of the EEZ off North Carolina when using shrimp trawls or crab
trawls; and a requirement that weakfish harvested for commercial
purposes in the EEZ be landed only in the following states:
Massachusetts, Rhode Island, Connecticut, New York, New Jersey,
Delaware, Maryland, Virginia, or North Carolina. In addition, weakfish
fishing must be in accordance with the laws of the state where weakfish
are landed if the state's regulations are more restrictive than the
Federal regulations. The intent of the regulations is to provide
protection to the overfished stock of weakfish, ensure the
effectiveness of state regulations, and aid in the rebuilding of the
stock.
DATES: Effective October 22, 1997.
ADDRESSES: Copies of supporting documents, including a Final
Supplemental Environmental Impact Statement and Regulatory Impact
Review (FSEIS/RIR), are available from Richard H. Schaefer, Chief,
Staff Office for Intergovernmental and Recreational Fisheries, NMFS,
8484 Georgia Avenue, Suite 425, Silver Spring, MD 20910-3282.
FOR FURTHER INFORMATION CONTACT: Thomas Meyer/Anne Lange, 301-427-2014.
SUPPLEMENTARY INFORMATION:
Background
The background and rationale for this rule were contained in the
preamble to the proposed rule, published in the Federal Register on
February 14, 1997 (62 FR 6935), and are not repeated here. Additional
background for this rule is available and contained in a FSEIS/RIR
prepared by NMFS for this rule (see ADDRESSES).
Comments and Responses
NMFS received written comments from 17 agencies, states and
organizations and five individuals, and held four public hearings
attended by 74 individuals, to gather public comments on the proposed
rule. Details of both the written comments and the public hearings are
provided in the FSEIS/RIR published in the Federal Register on July 3,
1997 (62 FR 36062). Written and public hearing comments are summarized
here.
Each of the State and Federal agencies and conservation
organizations supported the proposed rule and found its measures to be
compatible with state and Atlantic States Marine Fisheries Commission
(Commission) fishery management plans for weakfish. The U.S. Coast
Guard suggested changes to clarify current language and to address
several enforcement issues. The U.S. Fish and Wildlife Service fully
supported the proposed rule and urged the earliest possible adoption of
both the weakfish rule and a proposed rule to implement a program to
certify specific Bycatch Reduction Devices (BRDs) for shrimp trawls
(final rule published in the Federal Register on April 16, 1997 (62 FR
18536)). The Mid-Atlantic Fishery Management Council supported the
proposed rule and, based on its comments, an additional public hearing
was held in North Carolina to address industry concerns related to the
impact of the proposed rule on other fisheries conducted in the closed
area off North Carolina.
1. Comment: One agency commented that language, consistent with
regulations requiring the use of Turtle Excluder Devices (TEDs) in the
summer flounder fishery, should be included in the prohibitions
(Sec. 697.7) to require use of TEDs by vessels using nets in the EEZ
north of Cape Hatteras.
Response: Under the requirements of section 7 of the Endangered
Species Act, NMFS has evaluated the impact the weakfish fishery may
have on turtles. Based on the Biological Opinion issued by NMFS,
reasonable and prudent measures will be taken to minimize the impact of
the weakfish fishery on sea turtles. This will include development of
an effective TED for flynets and a schedule for implementation in
flynet gear during the times and areas as required for summer flounder
(50 CFR 217.12 and 227.72). In addition, an Incidental Take Statement
has been issued by NMFS, anticipating documented lethal or non-lethal
takes in the weakfish fishery of a maximum total of 20 loggerhead
turtles and two Kemp's ridleys in flynet, bottom trawl, or gillnet
gear. Should these levels be exceeded, consultations must be
reinitiated.
2. Comment: Several commenters suggested that the proposed closed
area line should be modified to be consistent with the line in the
North Carolina regulations, which proceeds in a southeasterly direction
from Cape
[[Page 49452]]
Hatteras, not due east as in the proposed rule.
Response: NMFS agrees. The northern boundary of the line to
delineate no flynetting south of Cape Hatteras has been modified to be
aligned with the State of North Carolina's line. However, while this
line will follow as closely as possible the State's line (40250 Loran C
line), it will be defined by latitude/longitude, and enforced as such.
Therefore, the line proceeds SE in a straight line from a point,
35 deg.10.8' N. lat., 75 deg.29.2'W. long. (3 nm from Cape Hatteras),
generally proceeding along the 40250 LORAN C line, to a point
35 deg.06.5' N. lat., 75 deg.19.4' W. long. (12 nm from Cape Hatteras).
3. Comment: Several commenters were concerned that the proposed
regulations could potentially impact other fisheries in the EEZ off the
coast of North Carolina.
Response: NMFS believes it is important to maintain the closed area
south of Cape Hatteras in order to protect young weakfish. Therefore,
flynets will not be allowed in the closed area to fish for spot,
croaker, or any other species. Concerns regarding the squid/mackerel/
butterfish fishery, which uses a small-mesh trawl similar to a flynet
in the original closed area, led NMFS to adjust the closed area so such
gears could continue to fish without likelihood of encountering young
weakfish. Section 697.7(a)(5), the area closed to flynetting in the
proposed rule has been modified. Vessels fishing with other than shrimp
trawls (with certified BRDs as required by 50 CFR part 622, Appendix D,
and TEDs as required by 50 CFR 227.72(e)(2)(ii)) or summer flounder
trawls (with approved TEDs) are prohibited from fishing in the closed
area, because they are likely to have a significant bycatch of
weakfish. However, they are permitted to fish outside the modified
closed area for squid, croaker, spot, or other species. They are
limited to a 150-lb (67-kg) weakfish bycatch, unless mesh sizes are
larger than those described in this rule. Vessels using gillnets with
proper mesh may operate within the no-flynet area.
During the winter of 1996-97, a number of vessels using shrimp
trawls to fish for finfish in the closed area produced a significant
bycatch and mortality of young weakfish. North Carolina is modifying
its regulations to require that vessels possess at least 50 percent
shrimp, by weight, to be considered a shrimp vessel and to be permitted
in the closed area. The Commission has required North Carolina to
demonstrate that it has implemented adequate measures to prevent future
directed finfish harvest with shrimp trawls. To support North Carolina
and Commission actions, this final rule prohibits the possession of any
weakfish by vessels using shrimp trawls in the closed area.
4. Comment: One agency commented that the intent to prohibit
vessels from catching weakfish in the EEZ and landing the fish in a
``de minimis'' state (Sec. 697.7(a)(7)) is not enforceable at landing,
since it is impossible to determine where the fish were harvested,
either from the EEZ or another state's waters, which may be open.
Response: NMFS believes that while this measure may be difficult
to enforce, it will help state agencies enforce their regulations to
implement the Commission's weakfish management plan. This measure will
prevent a person from saying he/she caught weakfish in the EEZ, when
landing for commercial purposes in a ``de minimis'' state or a state
that has not declared an interest in weakfish management. This will
make circumventing states' closed fishing seasons and other regulations
more difficult, since ``de minimis'' states and states without a
declared interest have little or no weakfish fisheries. Also, it is
important that those states that have requested ``de minimis'' status
from the Commission ensure that landings of weakfish in those states
remain below the level required to maintain their ``de minimis''
status. While weakfish landings in these states are not expected to
increase, if they do increase significantly, the states will be
required to assume the responsibilities associated with being a
participating state. Therefore, the ``de minimis'' states should also
be involved in enforcing this measure. The ``de minimis'' states most
likely to be impacted by landings from other states' vessels (South
Carolina and Georgia) have detailed monitoring programs and would
quickly know if weakfish landings were increasing beyond the ``de
minimis'' level. The Commission has specifically requested that the
``de minimis'' language be included in the EEZ rule in order to support
Commission efforts in state waters. The Commission has requested that
any enforcement problems raised by this provision be forwarded to the
Commission's Weakfish Management Board.
5. Comment: One commenter stated that the language to prohibit the
possession of more than 150-lb (67-kg) of weakfish during any one day
or trip, whichever is longer, in the EEZ when fishing with less than
the approved mesh size should be clarified. It should be changed to
read:
``To prohibit the possession of more than 150-lb of weakfish during
any one day or trip, whichever is longer, in the EEZ when:
(i) Using a mesh size less than 3 1/4 inch (8.3 cm) square stretch
mesh or 3 3/4 inch(9.5 cm) diamond stretch mesh for trawls and 2 27/8
inch (7.3) stretch mesh for gill nets; or
(ii) fishing during any closed season for weakfish of the state in
which the weakfish are landed.''
Response: NMFS agrees and has included such language in the final
rule. However, in the area off North Carolina that is closed to
flynetting, no weakfish may be landed in the shrimp fishery (see
comment 3). In addition, summer flounder gear, even though it has a
larger than required mesh, are allowed only a 150-lb (67-kg) bycatch of
weakfish.
6. Comment: The proposed rule is not consistent with North Carolina
regulations regarding the use of flynets in the closed area south of
Cape Hatteras. The proposed rule would only prohibit their use for
weakfish, while the State prohibits their use for any species in the
closed area.
Response: The intent of the proposed rule was to be compatible with
the State's regulation. The prohibitions section in the final rule has
been modified to clarify that no fishing with flynets is allowed in the
specified area south of Cape Hatteras.
7. Comment: Several individuals commented on the status of the
stock, stating that the weakfish stock is recovering strongly, that
references to a declining population are not substantiated by coastwide
biological information, that the assessment is outdated and incorrect,
and that declines in catch are due to shifts to other target species.
Response: Although some signs of recovery are present in the most
recent years, their is insufficient evidence to say that the weakfish
stock is recovering strongly. Also, while there may have been shifts of
effort to other fisheries leading to declines in harvest, the stock
assessment uses fishery independent data (data from scientific surveys)
on weakfish abundance through most of its range. These surveys
demonstrate that there has been a decline in the weakfish stock, though
there are signs of improvement in recruitment of the most recent year
classes. Weakfish mature early (age 1) and have high fecundity, so they
have the ability to recover quickly, given favorable conditions and
reduced fishing mortality rates (F). The last stock assessment for
which population estimates are available (catch matrix through 1994)
indicated that the
[[Page 49453]]
population bottomed out in 1991 and has recovered somewhat. There may
be recent indications of improved recruitment and observations of more,
larger (older) fish, in 1996; however, fishing mortality rates for
recent years remain very high (about 1.9 for age 2+, with catch matrix
through 1995). Improved recruitment will likely cause a prompt and
noticeable short-term stock improvement. However, if the fishery
continues to operate at high F, the promising recruitment levels will
not be reflected in subsequent improvements in the adult population.
Until a revised assessment has been completed that indicates
improvements in stock status, other than a year or two of good
recruitment, it is premature to say the stock is recovering.
The science used by the Commission's weakfish stock assessment and
technical committees relies on the best available fishery-dependent and
fishery-independent data. The models and analyses involved in the
assessment are those that are best suited for the available data. The
assessment is based on the coastwide status of the stock and does not
look only at local events.
8. Comment: One agency and an individual stated that small- mesh
trawls used in the area south of Cape Hatteras must be defined not by
their gear parameters but by their fishing intentions (e.g., shrimping
as opposed to shrimp trawls; floundering, as opposed to flounder
trawls.) Under the proposed rule, it would be legal to finfish using
shrimp trawls in the area south of Cape Hatteras, as long as weakfish
are not retained. There are substantial data that indicate that this
leads to tremendous waste in discards. Flounder trawls have no business
in the area south of Cape Hatteras, outside the flounder trawling
season. On the other hand, squid fishermen may likely take quantities
of weakfish over 150-lb (67-kg) in legitimate squid/mackerel/herring/
butterfish operations, but those fish must be discarded. These
fisheries should be defined with respect to the amount of the target
species on their vessel when they land, and not simply by the nets they
use. At least 51 percent of their catch must be comprised of one or
more of the target species. Another option would be to consider closed
seasons, particularly for the shrimp fishery, to avoid fishing with
shrimp trawls during the winter (December 1-April 1).
Response: NMFS is concerned over reports of fishing with small-mesh
nets causing the discard of large amounts of weakfish south of Cape
Hatteras. However, under the NMFS regulation, a state's more
restrictive regulations apply to weakfish caught in the EEZ when those
fish are landed in a state. A state could choose to institute such
suggested regulations to reduce bycatch on small-mesh fishing vessels
landing in the state.
Also, north of Cape Hatteras, in the future, NMFS will consider
modifying the regulations to allow states to issue special permits that
will allow legitimate small-mesh fisheries for squid/mackerel/herring/
butterfish to take more than 150-lb (67-kg) of legal size weakfish
during any one day or trip, whichever is longer, in the EEZ during the
state's open weakfish season. North Carolina has requested such permits
because it believe that larger quantities of legal weakfish may, when
the population is moving through the area, be taken during these
fisheries directed at other species. This is not expected to occur
frequently, but North Carolina wants the ability to allow vessels to
land these fish, rather than discard them.
9. Comment: Several commenters stated that the 2 7/8-inch minimum
mesh size for gillnets is appropriate for North Carolina during winter;
however, they questioned whether this mesh size is conservative for a
12-inch (30.5-cm) weakfish during the spring/summer/fall when weakfish
are gravid or well-fed, thereby having greater girth. NMFS should
consider a more conservative mesh size during spring/summer/fall (i.e.,
3 1/8-inch (7.9-cm) stretch mesh).
Response: NMFS used the mesh sizes approved and required by the
Commission because these mesh sizes have been reviewed and approved by
the Commission Weakfish Technical Committee and Management Board, and
have been implemented by the states. NMFS participates in the
Commission review and agrees that these mesh sizes are based on the
best information available. If the Commission approves and recommends
changes to weakfish mesh sizes, and if NMFS agrees the changes are
consistent with the best information available, NMFS will adjust the
EEZ mesh regulations to be compatible with the Commission's
recommendations.
10. Comment: Several commenters were concerned whether, once a
closure of the area south of Cape Hatteras is imposed on flynets, NMFS
will be able to open the area to large-mesh flynets in the near future.
Response: Once the stock has recovered, NMFS will consider
reopening this area to larger mesh flynetting, if the Commission
determines that this gear is appropriate for capturing legal-sized
weakfish.
11. Comment: One commenter indicated that New York has taken
aggressive management steps to restore weakfish and to ensure a healthy
weakfish population. NMFS regulations will complement the regulations
already in effect in state waters and can only benefit what is now a
severely stressed weakfish population.
Response: NMFS agrees. The intention of this rule is to implement
EEZ management measures that are compatible with state and Commission
measures already in place in state waters.
12. Comment: One commenter and a conservation organization stated
that the status of the Atlantic weakfish stock has been grave for a
long time. The unfortunate invalidation of the 1995 NMFS moratorium on
weakfish fishing in Federal waters further delayed necessary Federal
action for this important stock and makes implementation of current
proposed measures for weakfish even more urgent. Federal action to
begin to rebuild the weakfish stock is long overdue. Because weakfish
fishing operations in the EEZ mainly target large, vulnerable
aggregations of juvenile fish, they support a full moratorium on
weakfish fishing in Federal waters as a strong conservation measure
that is easy to enforce. Given the previous court ruling and the
urgency of the situation, however, they support the intention to
complement the Commission's weakfish plan.
Response: NMFS agrees that establishing management measures in the
EEZ is crucial to the recovery of the weakfish population. Adoption of
Amendment 3 to the Commission Weakfish Fishery Management Plan, and its
recommendations for compatible actions in Federal waters, should begin
to protect and restore the weakfish population.
13. Comment: One commenter stated that he strongly supports the
approach taken by NMFS to address the concerns regarding landing
weakfish in ``de minimis'' states. However, he suggested that from an
administrative standpoint, NMFS may want to explore language that would
allow a currently ``de minimis'' state, if it so desires, to declare an
interest in the fishery without issuance of a new Federal rule.
Response: NMFS understands that current ``de minimis'' states may,
at some future time, declare an interest in participating in the
fishery, and language that would allow such a declaration without
issuance of a new rule would be useful. However, since the NMFS
proposed rule is designed to be compatible with measures
[[Page 49454]]
implemented by the states, NMFS can not determine what measures may be
needed in the EEZ off the coasts of South Carolina and Georgia until
they establish measures in their own waters. Once a state's ``de
minimis'' status is removed by the Commission, NMFS sees no reason to
restrict commercial landings in the state. Therefore, such restrictions
will be removed by rulemaking upon notification from the Commission.
14. Comment: One commenter indicated that the statement that shrimp
and flounder trawls are the only types of trawls allowed in the area
closed to flynets is incorrect. North Carolina also allows crab trawls.
Response: The NMFS proposed rule would have allowed only shrimp or
flounder trawls to trawl in the closed area of the EEZ. This was
because the rule was intended to prohibit flynets, as in the North
Carolina plan, and it was not possible to define a flynet with
sufficient specificity for this rule. Therefore, NMFS specified which
types of fishing gear would be allowed in the closed area. NMFS
contacted the North Carolina Division of Marine Fisheries, which
reported few, if any crab nets used in the EEZ off North Carolina;
therefore, this gear was excluded.
15. Comment: One industry organization requested that NMFS
reconsider closing the entire EEZ south of Cape Hatteras, stating that
the current North Carolina state closure to North Carolina vessels was
developed in the absence of any standards pertaining to fairness and
equitability among fishery participants. North Carolina fishermen have
taken a larger reduction in fishing effort compared to fishermen in
other states and North Carolina vessels are the only vessels impacted
by this regulation. They do not believe that this closure is consistent
with national standards of the Magnuson-Stevens Act.
Response: NMFS has reconsidered closing the entire EEZ south of
Cape Hatteras and the final rule now closes an area out to only 20-40
nm, not out to 200 nm. The North Carolina plan was approved by the
Commission as meeting the fishing mortality reduction requirements in
Amendment 3 of the Weakfish FMP. All states were held to the same level
of reduction, though it was up to each state to determine how it would
meet that reduction. NMFS' proposed regulations were compatible with
the states' regulations. Since, under North Carolina regulations, North
Carolina vessels may not use a flynet south of Cape Hatteras, this rule
does not further restrict North Carolina vessels beyond what the State
has already implemented. However, the Federal regulation does apply to
all vessels, not just North Carolina vessels, fishing in the modified
closed area of the EEZ, south of Cape Hatteras. Therefore, the rule is
consistent with the national standards of the Magnuson-Stevens Act.
16. Comment: The NMFS justification not to conduct an Initial
Regulatory Flexibility Analysis (IRFA) violates provisions of the
Regulatory Flexibility Act. The proposed rule contains four reasons why
no IRFA is necessary, all of which are thoroughly invalid.
Response: A regulatory flexibility analysis (RFA) is required when
there is a significant economic impact on a substantial number of small
entities. NMFS believes that the proposed regulations do not meet the
above criteria for development of an RFA because the impacts on small
entities have already occurred through state implementation of
Amendment 3 to the Commission's Weakfish FMP. These Federal regulations
are designed to be compatible with state regulations and will have
minimal additional impacts. In the case of North Carolina, the State
implemented regulations in October 1996 that closed the entire EEZ
south of Cape Hatteras to flynets. This rule has modified the closed
area by significantly reducing its size, which will lessen the impact
on North Carolina fishermen. However, non-North Carolina vessels are
now affected by the Federal closure. There are no records of vessels
from states other than North Carolina fishing with flynets in the
Federal closed area. North Carolina vessels affected by the regulations
are able to fish in other areas or with different gears.
17. Comment: An industry organization requested that, in place of
the full EEZ closure, NMFS consider leaving an area outside of 6 nm
open to flynet fishing south of Cape Hatteras only during December
through March. Flynet vessels using approved mesh size and adhering to
minimum fish size would be permitted to fish in that area only during
the specified time period.
Response: NMFS has modified the closed area as noted above (comment
3).
18. Comment: One commenter asked why NMFS hasn't continued to
pursue a complete moratorium on fishing for weakfish in the EEZ, as was
imposed in November 1995.
Response: The NMFS rule, which imposed the moratorium in 1995, was
set aside by the court in February 1996. The rule had been developed
prior to the Commission's completion of Amendment 3 to the Weakfish FMP
as a measure needed to protect weakfish. The final rule accounts for
the measures already implemented by the states under the Commission's
plan and supports coastwide coordination in the long-term management of
this stock.
19. Comment: One individual asked why NMFS doesn't implement a
coastwide minimum size of 13 inches (33.0 cm)?
Response: The proposed rule is a first step in developing
management measures compatible with those of the Commission. The
Commission allows states to implement size limits and other management
measures to reduce F. NMFS will consider additional measures, such as a
13-inch (33-mm) minimum size, if the Commission determines further
reductions in F are needed in the future.
20. Comment: A North Carolina fishermen association disagreed with
the decision that a regulatory flexibility analysis was not needed and
stated that the EEZ closure to flynet fishing will significantly impact
the flynet fishery.
Response: The North Carolina vessels that will be impacted by the
EEZ closure have already been prohibited from a larger area by North
Carolina regulations that went into effect on October 1, 1996. Thus the
Federal regulation is not expected to have a significant economic
impact. Further, the vessels prohibited from the area can move to other
areas and fisheries and, in fact, most have already done so. As a
result, a regulatory flexibility analysis was not prepared.
Changes from the Proposed Rule
The definition section, Sec. 697.2, of the proposed rule contained
22 definitions. Six of these definitions are already included in 50 CFR
600.10. Any terms defined in Sec. 600.10 are common to all domestic
fishing regulations appearing in Chapter VI of title 50 CFR. Therefore,
the six definitions were removed from the final rule to avoid
duplication. A definition of crab trawls was added.
In response to public, state and Federal agency, and Commission
comments, the following changes have been made to the prohibition
section, Sec. 697.7, of the proposed rule:
1. The area of the EEZ south of Cape Hatteras, closed to
flynetting, has been modified to:
a. Have its northern boundary conform with North Carolina's closed
area boundary line;
b. Extend out to only about 20-40 nm from the shore, depending on
the contour of the land; and
c. Extend only to the North Carolina--South Carolina state line.
2. The closed area applies to all flynetting, not just flynetting
for weakfish.
3. Washington, DC, which had incorrectly been listed as a state
where
[[Page 49455]]
weakfish caught in the EEZ may be landed, has been removed from the
list.
4. A prohibition on the possession of weakfish in the closed EEZ
area when using shrimp trawls and crab trawls has been added.
5. Florida was granted ``de minimis'' status by the Commission on
August 1, 1997, and is therefore no longer included in the list of
states where weakfish harvested for commercial purposes in the EEZ may
be landed.
Changes from the Final Supplemental Environmental Impact Statement
(FSEIS)
In response to comments from the North Carolina Division of Marine
Fisheries (NCDMF) the outer boundary of the closed area south of Cape
Hatteras was extended approximately 5 nm seaward of the line defined in
the FSEIS to prevent fishing on small weakfish known to concentrate
beyond the closed area described in the FSEIS. Also, crab trawls have
been included, with shrimp trawls, in the prohibition of possession of
weakfish in the closed area of the EEZ off North Carolina.
Classification
The Assistant Administrator for Fisheries has determined that these
actions are compatible with the effective implementation of the
Commission's coastal FMP, and consistent with the national standards of
the Magnuson-Stevens Act. The Secretary has taken into account the
data, views, and comments received during the comment period.
Five different alternatives to regulate the harvest of weakfish in
the EEZ were examined in the FSEIS/RIR. Alternative D, which applies
compatible Federal regulations in the EEZ, provides the greatest
support for the Commission's Weakfish Plan. Alternatives prohibiting
the harvest and possession or harvest only in the EEZ were also
considered, as well as alternatives establishing separate specific
regulations in the EEZ, applying state regulations in the EEZ, or doing
nothing. NMFS determined that, among the alternatives analyzed, the
Federal measures discussed above are the most appropriate measures to
support the Commission's Weakfish Plan.
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 when this rule was proposed, that it
would not have a significant economic impact on a substantial number of
small entities. The reasons for the certification were published in the
preamble to proposed rule. NMFS received a comment, addressed above,
regarding the certification. This comment did not cause this
determination to be changed. As a result, no regulatory flexibility
analysis was prepared.
Further information is available in the FSEIS/RIR (See ADDRESSES).
This final rule has been determined to be not significant for
purposes of E.O. 12866.
List of Subjects in 50 CFR Part 697
Administrative practice and procedure, Fisheries, Fishing.
Dated: September 12, 1997.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR Chapter VI, part
697, is revised to read as follows:
PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT
Sec.
697.1 Purpose and scope.
697.2 Definitions.
697.3 Relation to the Magnuson-Stevens Act.
697.4 Relation to state law.
697.5 Civil procedures.
697.6 Specifically authorized activities.
697.7 Prohibitions.
Authority: 16 U.S.C. 1851 note; 16 U.S.C. 5101 et seq.
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 section 6 of the Atlantic Striped Bass Conservation Act
Appropriations Authorization, 16 U.S.C. 1851 note, and govern fishing
in the EEZ on the Atlantic Coast for species covered by those acts.
Sec. 697.2 Definitions.
In addition to the definitions in Sec. 600.10 of this chapter, the
terms in this part have the following meanings:
Approved TED means any approved Ted as deined at 50 CFR 217.12.
Atlantic striped bass means members of stocks or populations of the
species Morone saxatilis found in the waters of the Atlantic Ocean
north of Key West, FL.
Block Island Southeast Light means the aid to navigation light
located at Southeast Point, Block Island, RI, and defined as follows:
Located at 40 deg.09.2'N. lat., 71 deg.33.1'W. long; is 201 ft (61.3 m)
above the water; and is shown from a brick octagonal tower 67 ft (20.4
m) high attached to a dwelling on the southeast point of Block Island,
RI.
BRD means bycatch reduction device.
Certified BRDs means any BRD, as defined in 50 CFR part 622
Appendix D: Specifications for Certified BRDs.
Commercial purposes - means for the purpose of selling or bartering
all or part of the fish harvested.
Commission means the Atlantic States Marine Fisheries Commission
established under the interstate compact consented to and approved by
Congress in Public Laws 77-539 and 81-721.
Continuous transit means that a vessel does not have fishing gear
in the water and remains continuously underway while in the EEZ.
Crab trawl means any trawl net that is rigged for fishing and has a
mesh size of 3.0 inches (7.62 cm), as measured between the centers of
opposite knots when pulled taut.
De minimis state means any state where the landings are so low that
the Commission's Fisheries Management Board has exempted that state
from some of its regulatory responsibilities under an Interstate
Fishery Management Plan.
Directed fishery means any vessel/person fishing for a stock using
gear or strategies intended to catch a given target species, group of
species, or size class. For the purpose of this regulation, any vessel/
person targeting weakfish.
Flynets, for the purpose of this part, means any trawl net, except
shrimp trawl nets containing certified BRDs and approved TEDs, when
required under 50 CFR 227.72(e)(2), and except trawl nets that comply
with the gear restrictions specified at Sec. 648.104 of this chapter
for the summer flounder fishery and contain an approved TED, when
required under 50 CFR 227.72(e)(2).
Land means to begin offloading fish, to offload fish, or to enter
port with fish.
Montauk Light means the aid to navigation light located at Montauk
Point, NY, and defined as follows: Located at 41 deg.04.3'N. lat.,
71 deg.51.5'W. long.; is shown from an octagonal, pyramidal tower, 108
ft (32.9 m) high; and has a covered way to a dwelling.
Point Judith Light means the aid to navigation light located at
Point Judith, RI, and defined as follows: Located at 41 deg.21.7'N.
lat., 71 deg.28.9'W. long.; is 65 ft (19.8 m) above the water; and is
shown from an octagonal tower 51 ft (15.5 m) high.
Retain means to fail to return Atlantic striped bass or weakfish to
the sea immediately after the hook has been removed or the fish has
otherwise been released from the capture gear.
[[Page 49456]]
Shrimp trawl net means any trawl net that is rigged for fishing and
has a mesh size less than 2.50 inches (6.35 cm), as measured between
the centers of opposite knots when pulled taut, and each try net, as
defined at Sec. 622.2 of this chapter, that is rigged for fishing and
has a headrope length longer than 16.0 ft (4.9 m).
TED (turtle excluder device) means a device designed to be
installed in a trawl net forward of the codend for the purpose of
excluding sea turtles from the net.
Weakfish means members of the stock or population of the species
Cynoscion regalis, found along the Atlantic Coast from southern Florida
to Massachusetts Bay.
Sec. 697.3 Relation to the Magnuson-Stevens Act.
The provisions of sections 307 through 311 of the Magnuson-Stevens
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-Stevens Act.
Sec. 697.4 Relation to state law.
The regulations in this part do not preempt more restrictive state
laws, or state enforcement of more restrictive state laws, with respect
to weakfish fishing.
Sec. 697.5 Civil procedures.
The civil procedure regulations at 15 CFR part 904 apply to civil
penalties, permit sanctions, seizures, and forfeitures under the
Atlantic Striped Bass Act and the Atlantic Coastal Fisheries
Cooperative Management 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 the regulations in this
part.
Sec. 697.7 Prohibitions.
(a) Atlantic Coast weakfish fishery. In addition to the
prohibitions set forth in Sec. 600.725 of this chapter, the following
prohibitions apply. It is unlawful for any person to do any of the
following:
(1) Fish for, harvest, or possess any weakfish less than 12 inches
(30.5 cm) in total length (measured as a straight line along the bottom
of the fish from the tip of the lower jaw with the mouth closed to the
end of the lower tip of the tail) from the EEZ.
(2) Retain any weakfish less than 12 inches (30.5 cm) in total
length taken in or from the EEZ.
(3) Fish for weakfish in the EEZ with a minimum mesh size less than
3 1/4-inch (8.3 cm) square stretch mesh (as measured between the
centers of opposite knots when stretched taut) or 3 3/4-inch (9.5-cm)
diamond stretch mesh for trawls and 2 7/8-inch (7.3 cm) stretch mesh
for gillnets.
(4) To possess more than 150 lb (67 kg) of weakfish during any one
day or trip, whichever is longer, in the EEZ when using a mesh size
less than 3 1/4-inch (8.3 cm) square stretch mesh (as measured between
the centers of opposite knots when stretched taut) or 3 3/4-inch (9.5
cm) diamond stretch mesh for finfish trawls and 2 7/8-inch (7.3 cm)
stretch mesh for gillnets.
(5) To fish using a flynet in the EEZ off North Carolina in the
area bounded as follows:
(i) On the north by a straight line connecting points
35 deg.10.8'N. lat., 75 deg.29.2'W. long. (3 nm off Cape Hatteras) and
35 deg.03.5'N. lat., 75 deg.11.8'W. long. (20 nm off Cape Hatteras).
(ii) The east by a straight line connecting points 35 deg.03.5'N.
lat., 75 deg.11.8'W. long. (20 nm off Cape Hatteras) and 33 deg.21.1'N.
lat., 77 deg.57.5'W. long., (about 30 nm off Cape Fear on the extension
of the North Carolina/South Carolina state line into the EEZ).
(iii) On the south by a straight line connecting points
33 deg.21.1'N. lat., 77 deg.57.5'W. long., and 33 deg.48.8'N. lat.,
78 deg.29.7'W. long. (3 nm off Little River Inlet on the North
Carolina/South Carolina state line).
(iv) On the west by state waters.
(6) To possess any weakfish in the closed area of the EEZ,
described in Paragraph (a)(5) of this section, when fishing with shrimp
trawls or crab trawls.
(7) To land weakfish for commercial purposes caught in the EEZ in
any state other than Massachusetts, Rhode Island, Connecticut, New
York, New Jersey, Delaware, Maryland, Virginia, or North Carolina.
(b) Atlantic striped bass fishery. In addition to the prohibitions
set forth in Sec. 600.725, the following prohibitions apply. It is
unlawful for any person to do any of the following:
(1) Fish for Atlantic striped bass in the EEZ.
(2) Harvest any Atlantic striped bass from the EEZ.
(3) Possess any Atlantic striped bass in or from the EEZ, except
for the following area: The EEZ within Block Island Sound, north of a
line connecting Montauk Light, Montauk Point, NY, and Block Island
Southeast Light, Block Island, RI; and west of a line connecting Point
Judith Light, Point Judith, RI, and Block Island Southeast Light, Block
Island, RI. Within this area, possession of Atlantic striped bass is
permitted, provided no fishing takes place from the vessel while in the
EEZ and the vessel is in continuous transit.
(4) Retain any Atlantic striped bass taken in or from the EEZ.
[FR Doc. 97-24921 Filed 9-17-97; 2:29 pm]
BILLING CODE 3510-22-F
