E7-11524. Atlantic Coastal Fisheries Cooperative Management Act Provisions; Weakfish Fishery

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS proposes to decrease the incidental catch allowance for weakfish caught in the Exclusive Economic Zone (EEZ) from 300 lb (135 kg) to no more than 150 lb (67 kg) per day or trip, whichever is longer in duration. The intent of this proposed rule is to modify regulations for the Atlantic coast stock of weakfish to be more compatible with the Atlantic States Marine Fisheries Commission's (Commission) Interstate Fishery Management Plan (ISFMP) for weakfish, as set forth in the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act).

DATES:

Written comments must be received on or before July 16, 2007.

ADDRESSES:

You may submit comments by any of the following methods:

• E-Mail: [e-mail]. Include in the subject line the following identifier: “Comments on Weakfish Bycatch 150.”
• Federal e-rulemaking portal: http:/www.regulations.gov
• Mail: Chris Moore, Chief, Partnerships and Communications Division (SF8), Office of Sustainable Fisheries, National Marine Fisheries Service, 1315 East-West Highway, Suite 13317, Silver Spring, MD 20910. Mark the outside of the envelope: “Comments on Weakfish Bycatch 150 Proposed Rule.”
• Fax: [phone]

FOR FURTHER INFORMATION CONTACT:

Tom Meyer, 301-713-2334.

SUPPLEMENTARY INFORMATION:

Background

NMFS is proposing to modify weakfish conservation measures in the EEZ under the authority of the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act), 16 U.S.C. 5103, which states that, in the absence of an approved and implemented Fishery Management Plan under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.) and, after consultation with the appropriate Fishery Management Council(s), the Secretary of Commerce (Secretary) may implement regulations to govern fishing in the EEZ, i.e., from 3 to 200 nm offshore. These regulations must be (1) compatible with the effective implementation of an ISFMP developed by the Commission, and (2) consistent with the national standards set forth in section 301 of the Magnuson-Stevens Act.

On February 1, 2007, the Commission's Weakfish Management Board (Board) approved Addendum II to Amendment 4 to the ISFMP for Weakfish. Under the Addendum, the states of Massachusetts through North Carolina will be required to implement a six fish creel limit at their current size limit for the recreational fishery. For the commercial fishery, the Addendum reduces the allowable bycatch limit from 300 pounds to 150 pounds per day or trip. There is currently a bycatch limit of no more than 300 pounds in the EEZ. Addendum II also establishes two management triggers that will require the Board to reconsider the management program if met: (1) when the coastwide commercial landings reach 2.99 million pounds (80 percent of the mean from 2000 2004), and (2) when any state's landings exceed its five year average by more than 25 percent. States are required to fully implement the addendum measures by October 29, 2007. The Board's action was taken in response to a significant decline in stock abundance and increasing total mortality since 1999. As a result of weakfish's depleted stock size, the Board is required under Amendment 4 to adjust the management program to help rebuild spawning stock biomass. This issue is compounded by the fact that natural mortality, rather than fishing mortality, has been indicated as the lead cause for stock decline in the Commission's October 25, 2006, Fishery Management Plan Review for the Weakfish Fishery.

Status of the Weakfish Fishery

The most recent stock assessment (December 2006) was not upheld by an external peer review panel. Therefore, there is uncertainty in the stock status of weakfish. Analyses do indicate that biomass is low and that overfishing is not the cause. The Weakfish Technical Committee, in response to the peer review panel's report, supported five conclusions based on significant evidence that the Board has accepted for management use: (1) The stock is declining; (2) total mortality is increasing; (3) there is not much evidence of overfishing; (4) something other than fishing mortality is causing the decline in the stock; and (5) there is a strong chance that regulating the fishery will not, in itself, reverse stock decline.

Proposed Action

NMFS believes that the proposed decrease of the incidental catch allowance for weakfish is warranted even given the conclusions of the Weakfish Technical Committee. Pursuant to the Atlantic Coastal Act, 16 U.S.C. 5103, the Secretary has a statutory obligation to support the Commission's Interstate Fishery Management Program. The Commission recently adopted Addendum II to Amendment 4, which included a decrease in the commercial bycatch limit. The proposed rule would implement this decrease, consistent with Addendum II, allowing non-directed fisheries using a mesh size less than 3 1/4-inch square stretch mesh or 3 3/4-inch diamond stretch mesh for trawls and 2 7/8-inch stretch mesh for gillnets to possess no more than 150 lb (67 kg) of weakfish during any one day or trip, whichever is longer in duration; a decrease of 150 lb (67 kg) per day or trip from the current Federal regulation of 300 lb (135 kg) at § 697.7(a)(4)). This action supports the Commission's Interstate Fishery Management Program by being compatible with the effective implementation of the Commission's Weakfish Plan, is consistent with the national standards set forth in section 301 of the Magnuson Stevens Act, and would continue regulatory uniformity in state and Federal waters. This action would also be beneficial insofar as incongruous regulations can confuse stakeholders and complicate management.

Classification

This proposed rule is published under the authority of the Atlantic Coastal Act. Paragraphs (A) and (B) of section 804(b) (1) of the Atlantic Coastal Act, 16 U.S.C. 5103(a)-(b), authorizes the Secretary to implement regulations in the EEZ in the absence of a Magnuson-Stevens Act FMP. Such regulations must be compatible with the effective implementation of a Commission's ISFMP, and consistent with the national standards set forth in section 301 of the Magnuson-Stevens Act.

The Assistant Administrator for Fisheries has preliminarily determined that this action is compatible with the effective implementation of the Commission's ISFMP for weakfish and consistent with the national standards of the Magnuson-Stevens Act. The Secretary, before making the final determination, will take into account data, views, and comments received during the comment period.

Preliminary review of the proposed action in relation to NOAA Administrative Order (NAO) 216 6, including the criteria used to determine significance, suggests that the proposed action would not have a significant effect, individually or cumulatively on the human environment. Furthermore, NMFS has preliminarily determined that the proposed action is categorically excluded from the requirement to prepare an Environmental Impact Statement or an EA in accordance with 5.05(b) of NAO 216 6, because a prior NEPA document (EA dated August 2003) analyzed the impacts of landing 150 pounds versus 300 pounds of weakfish bycatch. That document found that neither the 150 lb. nor the 300 lb. bycatch limit created a significant impact on the quality of human environment. Although the stock's downward trend is apparent now versus when analyzed in 2003, that trend would not alter the environmental analyses or conclusions rendered in 2003. Specifically, fishing effort (number of tows) and practices (where fished) would remain the same. Nor would the number of weakfish actually caught and killed increase or decrease, because those weakfish that are not retained as incidental catch are discarded as bycatch. The action would, however, continue regulatory uniformity in state and Federal waters, which, as was also the case in 2003, is beneficial insofar as incongruous regulations can confuse stakeholders and complicate management. Accordingly, there would be no significant impact on the physical or human environment resulting from this action and the need to perform further analysis is categorically excluded pursuant to Section 5.05(b) of NAO 216 6.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.

NMFS prepared a regulatory flexibility analysis (RFA) that described the economic impacts on small entities for a similar action described in the final rule to increase the permitted non-directed incidental catch of weakfish from 150 lb (67 kg) to no more than 300 lb (135 kg) per day or trip (68 FR 56789, October 2, 2003). The RFA found that the economic impacts on small entities were not significant and would be at most a positive impact of $1,600 for the entire fishery for the entire year.

This proposed action would return the allowable incidental catch back to 150 lb (67 kg) from the current 300 lb (135 kg) level. NMFS does not have an estimate of the number of small entities to which the proposed action would apply because vessels most likely to be impacted are not required to hold a permit to fish for weakfish in the EEZ. The action would only apply to those fishermen who capture weakfish incidentally (as bycatch) while fishing for other species using a smaller mesh size than is allowed in the directed weakfish fishery. This proposed action would not alter current fishing practices or effort, or increase or decrease the number of weakfish caught because weakfish that are not retained as incidental catch are discarded as bycatch. However, fishermen who catch weakfish incidentally would be able to sell only 150 lb. of weakfish retained per trip rather than 300 lb. The price per pound of weakfish is $0.795 per pound, using the most recent 2005 data. The economic analysis provided in the 2003 rule explains the impact, now a negative impact, that would accrue to the fishermen as a result of the proposed rule. (68 FR 56789, October 2. 2003). Using the updated price per pound of weakfish, that negative impact would be at most $2072 for the whole fishery. NMFS does not consider the economic impact to be significant because the incidental weakfish catch is only a small portion of the entire catch and resulting revenue of these vessels. Using 2005 data, the average annual revenue of those vessels was $243,000, so the impact would be less than 1 percent. Therefore, NMFS has preliminarily determined that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

This proposed rule has been determined to be not significant for E.O. 12866 purposes.

List of Subjects in 50 CFR Part 697

• Fisheries
• Fishing

Dated: June 8, 2007.

Samuel D. Rauch III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 697, is proposed to be amended as follows:

PART 697—ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

1. The authority citation for 50 CFR part 697 continues to read as follows:

Authority: 16 U.S.C. 5101 et seq. 2. In § 697.7, paragraph (a)(4) is revised to read as follows:

§ 697.7

Prohibitions.

(a) * * *

(4) 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.

* * * * *