[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