[Federal Register Volume 68, Number 126 (Tuesday, July 1, 2003)]
[Proposed Rules]
[Pages 39048-39051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16573]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 697

[Docket No. 030617155-3155-01; I.D. 051903D]
RIN 0648-AR11


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.

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SUMMARY: NMFS proposes to: increase the incidental catch allowance for 
weakfish caught in the Exclusive Economic Zone (EEZ) from 150 lb (67 
kg) to no more than 300 lb (135 kg) per day or trip, whichever is 
longer in duration; remove Massachusetts and Connecticut from the list 
of states where commercially caught weakfish from the EEZ can be 
landed; and add to our regulations the Director, Office of Sustainable 
Fisheries, as an official who can grant Exempted Fishing Permits. The 
intent of this proposed rule is to modify regulations for the Atlantic 
coast stock of weakfish to promote the effectiveness of the 
Commission's Interstate Fishery Management Plan (ISFMP) for weakfish.

DATES: Written comments must be received on or before July 31, 2003.

ADDRESSES: Comments on the proposed rule should be sent to, and copies 
of a Draft Environmental Assessment/Regulatory Impact Review/Initial 
Regulatory Flexibility Analysis (EA/RIR/IRFA), are available from, Anne 
Lange, Chief, State-Federal Fisheries Division (SF8), Office of 
Sustainable Fisheries, National Marine Fisheries Service, 1315 East-
West Highway, Suite 13317, Silver Spring, MD 20910.

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 section 803(b) of the Atlantic Coastal 
Fisheries Cooperative Management Act (Atlantic Coastal Act), 16 U.S.C. 
5101 et seq., 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 November 21, 2002, the Commission approved and implemented 
Amendment 4 to the ISFMP for Weakfish (Amendment 4). Under Amendment 4, 
vessels fishing for weakfish must use mesh sizes of at least 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 
gillnets. Vessels using smaller mesh sizes cannot target weakfish, but 
often take this species as bycatch (i.e. non-directed fisheries). 
During development of Amendment 4, some states expressed concern that 
increased numbers of weakfish are being discarded as bycatch in these 
non-directed fisheries. Although research on discard mortality for 
weakfish is not available, fishermen have indicated that most discards 
are dead, and therefore, discard mortality has been assumed to be 100 
percent. To address this concern, Amendment 4 provides that states may 
allow fishermen targeting species other than weakfish to possess up to 
300 lb (135 kg) of weakfish in any one day or trip, whichever is the 
longer period of time, as incidental catch in state waters, provided 
that there is at least an equal poundage of other species on board the 
vessel. This is an increase of 150 lb (67 kg) from the Amendment 3 
incidental weakfish catch allowance of 150 lb (67 kg). Any state that 
chooses to implement a 300-lb (135-kg) allowance must have a reporting 
system in place that will allow adequate quantification of any such 
catch. State management plans must also account for any harvest of 
weakfish from non-directed fisheries. The required reporting systems 
will provide information on weakfish bycatch that will be needed by the 
Commission and NMFS in developing future regulations. Such information 
is currently limited. The Commission believes that this increase in 
allowance will contribute little to total landings, while the required 
reporting systems will result in improved data for future stock 
assessments

Status of the Weakfish Fishery

    Amendment 4 incorporates results of the most recent weakfish stock 
assessments, developed by the Atlantic Coastal States, the Commission, 
and NMFS (Section 1.2.2 of Amendment 4). The 30th Northeast Regional 
Stock Assessment Workshop, in 2000, reviewed the weakfish stock 
assessment and concluded that weakfish were at a high level of 
abundance and subject to low fishing mortality rates. The assessment 
was subsequently updated, in 2002, with data through 2000. Spawning 
stock biomass has been building since 1993, and is currently well above 
the threshold of 31.8 million lb (14,400 MT). Estimates of fishing 
mortality, which reached a high in 1994 of 2.52, have been below 0.50, 
since 1995. The 2000 estimate is below the fishing mortality target of 
0.31 and far below the fishing mortality threshold of 0.50.
    Management measures implemented under Amendment 3 resulted in an 
increase in the size and age structure of the weakfish population. The 
estimate of the proportion of age 6+ fish had shrunk to only 0.3 
percent of the total number of weakfish in 1990. This proportion has 
been increasing in recent years, reaching 6.8 percent of the total 
number in 2001. Measures implemented under Amendment 4 are designed to 
continue the expansion of the weakfish age and size structure to that 
necessary for full restoration of the stock, and to return weakfish to 
their previous geographic range.

Recommendation to the Secretary

    On March 13, 2003, the Secretary received the following two 
recommendations from the Commission to implement regulations under the 
Atlantic Coastal Act: (1) Require that fishermen who harvest weakfish 
recreationally in the EEZ comply with the laws of the state where they 
are landed; and (2) allow fishermen in non-directed fisheries using 
smaller than certain specified mesh sizes to possess no more than 300 
lb (135 kg) of weakfish during any one day or trip, whichever is longer 
in duration (an increase of 150 lb (67 kg) per day or trip). These two 
recommendations were part of five measures approved under

[[Page 39049]]

Section 4.9 of Amendment 4, but the only two that the Commission 
believed required changes to the current Federal regulations.
    Recommendation 1 would require that fishermen who harvest weakfish 
recreationally in the EEZ comply with the laws of the state where they 
are landed. NMFS believes that the current provisions at 50 CFR 
697.3(c) (``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 and American lobster fishing'') 
is compatible with the intent of this recommendation. If a state has a 
regulation that is more restrictive than the Federal regulation in the 
EEZ, the Federal regulation would apply in the EEZ but would likely not 
prohibit the state from enforcing its more restrictive state law upon 
landing in that state. Therefore, the Commission's recommendation is 
already in effect and a change to the current regulation is not 
required.
    Recommendation 2 would allow non-directed fisheries 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\7/8\-inch (7.3 cm) 
stretch mesh for gillnets to possess no more than 300 lb (135 kg) of 
weakfish during any one day or trip, whichever is longer in duration 
(an increase of 150 lb (67 kg) per day or trip over the current Federal 
EEZ regulation). The Commission stated in its letter to the Secretary 
that an increase in weakfish biomass has resulted in greater weakfish 
discards, and that a 300 lb (135 kg) bycatch allowance will help to 
reduce dead discards, while not encouraging directed fishing. The 
Commission believes that this recommendation is compatible with 
Amendment 4.
    Recommendation 2 is essentially a bycatch provision. Bycatch is 
defined in the Magnuson-Stevens Act as ``fish which are harvested in a 
fishery, but which are not sold or kept for personal use, and includes 
economic discards and regulatory discards.'' In this case, since 
vessels fishing for weakfish are required to adhere to the minimum mesh 
sizes described above, vessels using the smaller mesh sizes cannot 
direct effort on this species. However, since vessels fishing with 
smaller mesh sizes are likely to encounter weakfish, any weakfish in 
excess of 300 lb (135 kg), taken by such vessels, would be considered 
bycatch under this recommendation. In addition, under Amendment 4, 
vessels fishing with smaller mesh sizes can retain up to the 300 lb 
(135 kg) weakfish bycatch allowance in state waters, provided there is 
at least an equal poundage of other species on board the vessel. The 
provision for equal or greater poundage of other species is more 
restrictive than would be implemented in Federal waters. Any state that 
chooses to implement a 300-lb (135-kg) allowance must have a reporting 
system in place that will allow adequate quantification of any such 
catch. State management plans must also account for any harvest of 
weakfish from non-directed fisheries. The required reporting systems 
will provide information on weakfish bycatch that will be needed by the 
Commission and NMFS in developing future regulations. This 
recommendation requires a change to current Federal regulations.
    Another of the five measures approved under Section 4.9 of 
Amendment 4 was that weakfish commercially harvested in the EEZ be 
landed in accordance with the landing laws of the state in which they 
are landed, with the exception that weakfish caught commercially in the 
EEZ may not be landed in a de minimis state. The Commission permits a 
state to apply for de minimis status if, for the previous two years, 
its combined average commercial and recreational landings (by weight) 
constitute less than 1 percent of the annual coastwide commercial and 
recreational landings of weakfish for the same two year period. The 
Federal definition is compatible. Once de minimis status is granted, 
designated states are relieved of many of the burdens for monitoring 
weakfish catches, but must submit annual reports to the Weakfish 
Management Board justifying the continuance of de minimis status. This 
recommendation was not included in the letter from the Commission since 
this provision is addressed in current regulations.
    The Commission found, and the Secretary agrees, that the States of 
Massachusetts and Connecticut are now de minimis states within the 
definition of the term, and therefore, these states ought to be removed 
from the list of states where commercially caught weakfish from the EEZ 
can be landed (see 50 CFR part 697.7(a)(7)). This measure supports the 
ability of the states to effectively monitor landings.

Proposed Action

    Pursuant to section 804(a) of the Atlantic Coastal Act, the 
Secretary has a statutory obligation to support the Commission's 
Interstate Fishery Management Program. The Commission recently adopted 
Amendment 4, which is designed to continue the stock recovery seen 
during the implementation of Amendment 3, to benefit the ecosystem as 
well as commercial and recreational fisheries, and to continue to 
increase the age and size structure of the weakfish population, as well 
as its geographic range. In furtherance of this plan, the Commission 
requested Secretarial support in the form of a modification to the 
current Federal weakfish regulations. The recommended regulatory change 
would reduce dead discards (bycatch) by increasing the amount of 
incidental catch that can be landed, but by such a minimal amount that 
it would not encourage directed fishing. To support the Commission's 
weakfish management efforts under Amendment 4, NMFS proposes the 
following regulations that would modify management restrictions in the 
Federal weakfish fishery in a manner that is compatible with the 
recommendations made by the Commission. The proposed rule would allow 
vessels 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\7/
8\-inch (7.3 cm) stretch mesh for gillnets to possess no more than 300 
lb (135 kg) of weakfish during any one day or trip, whichever is longer 
in duration (an increase of 150 lb (67 kg) per day or trip over the 
current Federal EEZ regulation). In addition, the States of 
Massachusetts and Connecticut would be removed from the list of states 
where weakfish caught in the EEZ for commercial purposes can be landed 
(Sec.  697.7(a)(7)).
    Two changes would be included in this rulemaking for consistency 
and ease of reading: (1) Under 50 CFR 697.22--Exempted fishing, the 
Regional Administrator is the only official who can exempt a person or 
vessel from the requirements of this part for the conduct of exempted 
fishing beneficial to the management of weakfish, pursuant to the 
provisions of 50 CFR 600.745 of this chapter. But, under 50 CFR 
600.745, the Director, Office of Sustainable Fisheries has also been 
delegated this task. For consistency, the Director would be added to 50 
CFR 697.22 as an official, along with the Regional Administrator, who 
can exempt a person or vessel from the requirements of this part; and 
(2) Atlantic Coastal Act would be added to the definition section at 50 
CFR 697.2.

Classification

    This proposed rule is published under the authority of the Atlantic 
Coastal Act. Paragraphs (A) and (B) of section 804(b)(1) authorizes the 
Secretary to implement regulations in the EEZ in the absence of a 
Magnuson-Stevens Act FMP. Such regulations must be

[[Page 39050]]

necessary to support 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 these actions are consistent with the national 
standards. The Secretary, before making the final determination, will 
take into account data, views, and comments received during the comment 
period.
    NMFS prepared an initial regulatory flexibility analysis (IRFA) 
that describes the impact that this proposed rule, if adopted, would 
have on small entities. A summary of the IRFA is as follows:
    This proposed rule is published under the authority of section 803 
of the Atlantic Coastal Act. The purpose of the proposed rule is to 
improve cooperative management of the Atlantic coast weakfish fishery 
by supporting the Commission's Amendment 4, as required under the 
Atlantic Coastal Act. The proposed Federal regulatory change would 
increase the permitted non-directed incidental catch of the species 
from 150 lb (67 kg) to no more than 300 lb (135 kg) per day or trip. 
Analysis of the best available data in the EA/RIR/IRFA suggests that 
the proposed increase would not alter current fishing practices or 
effort, or increase the number of weakfish caught. The 150-lb (67-kg) 
increase would simply convert 150 lb (67 kg) of weakfish, which would 
be caught and discarded at sea as dead bycatch, into 150 lb (67 kg) of 
weakfish caught as incidental catch and landed. The need for the 
proposed action is explained in the preamble to this proposed rule and 
is not repeated here.
    Only two alternatives were considered for this proposed action. 
They were: Alternative 1: No Action; and Alternative 2 (Preferred 
Alternative): Allow vessels in non-directed fisheries, using mesh sizes 
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\7/8\-inch (7.3 cm) stretch 
mesh for gillnets to possess no more than 300 lb (135 kg) of weakfish 
during any one day or trip, whichever is longer in duration. Although a 
third alternative was identified in the environmental assessment, it 
was considered to be not significant for purposes of this IRFA. 
Furthermore, because the Secretary is required to develop and implement 
a program to support the Commission's action, analysis of additional 
alternatives would not meet the purpose and need for this action, or 
objectives of the Atlantic Coastal Act..
    The preferred alternative would allow vessels in non-directed 
fisheries, 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\7/8\-inch (7.3 cm) stretch mesh for gillnets, to possess no more 
than 300 lb (135 kg) of weakfish during any one day or trip, whichever 
is longer in duration (an increase of 150 lb (67 kg)).
    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. However, the action would only apply to those fishermen who 
capture weakfish incidentally while fishing for other species using a 
smaller mesh size than is allowed in the directed weakfish fishery. In 
addition, under Alternative 1, status quo, no additional small entities 
would be impacted; while implementation of Alternative 2 would apply to 
fishermen who use nets with smaller mesh sizes and catch over 150 lb 
(67 kg) of weakfish on a given day or trip. During 1998-2002, vessel 
trip reports indicated that only 1,116 small mesh otter trawl trips and 
4 small mesh gillnet trips landed weakfish caught while fishing in the 
EEZ. The average price received by fisherman reporting weakfish catch 
in the EEZ in 2001 was $0.614 per lb. If an affected vessel were to 
land 150 lb (67 kg) of weakfish, as currently permitted (Alternative 
1), $92 in revenue could be realized, per trip. If Alternative 2 were 
implemented, an additional $92 in revenue, for a weakfish total of $184 
per trip (double the current amount) would be possible. For a more 
accurate picture of the expected economic impacts for the two 
alternatives, actual catches from individual vessel trip records, from 
1998-2002, were multiplied by average price-per-pound of weakfish from 
the EEZ to determine estimated revenues per trip. Since vessels may not 
catch the full 150 lb (67 kg) or 300 lb (135 kg) allowed in Alternative 
1 and 2, revenues for each Alternative were projected as the average 
for those trips that reported from 1 to 150 lb (67 kg) (Alternative 1) 
and from 151 to 300 lb (135 kg) (Alternative 2). Catches from trips 
that reported over 300 lb (135 kg) were capped at the 300 lb (135 kg) 
proposed limit (Alternative 2) for these calculations. Calculated 
revenues for sale of allowed weakfish landings under Alternative 1 
averaged $22; potential revenues for Alternative 2 were estimated at 
$160 per trip. Based on 1998-2002 vessel trip data, total annual 
revenues for all non-directed weakfish trips, coastwide are projected 
to be about $6,200 under Alternative 1, and about $7,800, if 
Alternative 2 were to be implemented.
    There will be no reporting and recordkeeping requirements resulting 
from this proposed action.
    There are no Federal rules which may duplicate, overlap, or 
conflict with the proposed action.
    NMFS is inviting the public to provide comment on the number of 
small entities that might be affected by this proposed action. NMFS 
will consider comments received during the public comment period for 
this proposed action that relate to the economic impacts of the 
preferred alternative before publishing the final action.
    A copy of the IRFA is available from NMFS (see ADDRESSES).
    NMFS has made a preliminary decision that this proposed rule is not 
significant for purposes of E.O. 12866. This proposed rule has been 
submitted to the Office of Management and Budget for review pursuant to 
E.O. 12866.

List of Subjects in 50 CFR Part 697

    Fisheries, Fishing.

    Dated: June 25, 2003.
Rebecca J. Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR chapter VI, part 
697, is proposed to be amended as follows:

PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

    1. The authority citation for part 697 is revised to read as 
follows:

    Authority: 16 U.S.C. 5101 et seq.
    2. In Sec.  697.2, the definition for ``Atlantic Coastal Act'' is 
added in alphabetical order to read as follows:


Sec.  697.2  Definitions.

* * * * *
    Atlantic Coastal Act means the Atlantic Coastal Fisheries 
Cooperative Management Act, as amended (16 U.S.C. 5101 et seq.).
* * * * *
    3. Section 697.7, paragraph (a)(4) and (a)(7) are revised to read 
as follows:


Sec.  697.7  Prohibitions.

    (a) * * *
    (4) Possess more than 300 lb (135 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

[[Page 39051]]

for finfish trawls and 2\7/8\-inch (7.3 cm) stretch mesh for gillnets.
* * * * *
    (7) Land weakfish for commercial purposes caught in the EEZ in any 
state other than Rhode Island, New York, New Jersey, Delaware, 
Maryland, Virginia, or North Carolina.
    4. Section 697.22 is revised to read as follows:


Sec.  697.22  Exempted fishing.

    The Regional Administrator or Director may exempt any person or 
vessel from the requirements of this part for the conduct of exempted 
fishing beneficial to the management of the American lobster, weakfish, 
Atlantic striped bass, Atlantic sturgeon, or horseshoe crab resource or 
fishery, pursuant to the provisions of Sec.  600.745 of this chapter.
    (a) The Regional Administrator or Director may not grant such 
exemption unless it is determined that the purpose, design, and 
administration of the exemption is consistent with the objectives of 
any applicable stock rebuilding program, the provisions of the Atlantic 
Coastal Act, the Magnuson-Stevens Act, and other applicable law, and 
that granting the exemption will not:
    (1) Have a detrimental effect on the American lobster, Atlantic 
striped bass, weakfish, Atlantic sturgeon, or horseshoe crab resource 
or fishery; or
    (2) Create significant enforcement problems.
    (b) Each vessel participating in any exempted fishing activity is 
subject to all provisions of this part, except those explicitly 
relating to the purpose and nature of the exemption. The exemption will 
be specified in a letter issued by the Regional Administrator or 
Director to each vessel participating in the exempted activity. This 
letter must be carried aboard the vessel seeking the benefit of such 
exemption. Exempted fishing activity shall be authorized pursuant to 
and consistent with Sec.  600.745 of this chapter.
[FR Doc. 03-16573 Filed 6-30-03; 8:45 am]
BILLING CODE 3510-22-S