[Federal Register Volume 68, Number 191 (Thursday, October 2, 2003)]
[Rules and Regulations]
[Pages 56789-56791]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-25025]



[[Page 56789]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 697

[Docket No. 030617155-3232-02; 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: Final rule.

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SUMMARY: NMFS issues this final rule 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; to remove Connecticut from the list of 
states where commercially caught weakfish from the EEZ can be landed; 
and to add to NMFS' regulations the Director, Office of Sustainable 
Fisheries, as an official who can grant Exempted Fishing Permits. The 
intent of this final rule is to modify regulations for the Atlantic 
coast stock of weakfish to promote the effectiveness of the Atlantic 
States Marine Fisheries Commission's (Commission) Interstate Fishery 
Management Plan (ISFMP) for weakfish.

DATES: Effective November 3, 2003. Copies of supporting documents, 
including an Environmental Assessment/Regulatory Impact Review/Final 
Regulatory Flexibility Analysis (EA/RIR/FRFA),

ADDRESSES: 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

    The background and rationale for this final rule were contained in 
the preamble to the proposed rule, published in the Federal Register on 
July 1, 2003 (68 FR 39048), and are not repeated here. Additional 
background for this final rule is available and contained in a EA/RIR/
FRFA prepared by NMFS. (See ADDRESSES).
    This final rule allows 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)(Sec.  
697.7(a)(4)); removes the State of Connecticut from the list of states 
where weakfish caught in the EEZ for commercial purposes can be landed 
(Sec.  697.7(a)(7)); adds to NMFS' regulations the Director, Office of 
Sustainable Fisheries, as an official who can grant Exempted Fishing 
Permits (Sec.  697.22); and adds Atlantic Coastal Act and Director to 
the definition section (Sec.  697.2).

Comments and Responses

    There was one comment submitted by a state agency during the 
comment period.
    1. Comment: One state agency that is currently a de minimis state 
under Amendment 4 to the weakfish plan commented that the regulation 
(Sec.  697.7(a)(7)) that does not allow landings of weakfish from the 
EEZ in a de minimis state is not enforceable and should be re-
considered, because it is impossible to determine where the fish were 
harvested when a vessel comes to port. As an alternative to this 
unnecessary rule, the state suggested that it could easily adopt trip 
limits (300 lb) to ensure that the state does not become a destination 
for unlawful catches of weakfish.
    Response: Although enforcement of the regulation pertaining to a de 
minimis state does create certain challenges, NMFS declines to 
categorize the regulation as unenforceable. This regulation was 
implemented in 1997, after the Commission specifically requested that 
the de minimis language be included in the EEZ rule in order to support 
Commission efforts in state waters. The Commission also requested in 
1997 that any enforcement problems raised by this regulation be 
forwarded to the Commission's Weakfish Management Board (Weakfish 
Board); none have been. The Commission recommended in 2003 that this 
regulation remain in place. The present restrictions on commercial 
landings in a de minimis state, therefore, remain the Commission's 
stated regulatory preference. Given the Commission's stated preference, 
the lack of information and debate suggesting that an alternative 
approach is necessary, and NMFS's mandate under the Atlantic Coastal 
Act to support the Commission's interstate fishery management efforts, 
NMFS remains committed to the present Commission approach. However, 
NMFS notes the state agency may request that the Weakfish Board 
reconsider the enforcement concerns associated with this regulation. 
The adoption by any de minimis state of a trip limit of 300 lbs (135 
kg) could be part of the discussion. NMFS would consider any additional 
recommendations from the Commission that may arise from such 
discussions.

Changes from the Proposed Rule

    In its comment letter dated July 9, 2003, the Commonwealth of 
Massachusetts indicated its intention to withdraw itself from de 
minimis status under the current management regime due to the 
difficulty that state would have in codifying and enforcing its de 
minimis status. The process of withdrawal from de minimis status is far 
less complicated than inclusion into such a category. The state would 
upon approval of the withdrawal be expected to comply with all 
regulatory responsibilities of the plan, whereas it would be exempted 
from some responsibilities as a de minimis state. On July 16, 2003, the 
Commonwealth of Massachusetts requested that the Commission remove them 
from de mininis state status. On August 29, 2003, the Weakfish Board 
recommended and the Commission agreed to withdraw their finding that 
Massachusetts be given de minimis status. Under either status -- that 
is, as a de minimis state or not -- the actions of Massachusetts are 
not expected to contribute significantly to the Commission's coastwide 
conservation program for the species. Accordingly, NMFS is able to 
support the Commission's change on this matter and add the Commonwealth 
of Massachusetts to the list of states where commercially caught 
weakfish from the EEZ can be landed in the final rule at 50 CFR 
697.7(a)(7) because it is no longer considered de minimis.
    In the proposed rule, the term Director was added as an official 
who can grant Exempted Fishing Permits, but the term Director was not 
defined. This final rule adds the term Director to the definition 
section (Sec.  697.2), and defines it as the Director, Office of 
Sustainable Fisheries, 1315 East-West Highway, Silver Spring, MD 20910.

Classification

    This final 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 compatible with the 
effective implementation of a Commission's

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ISFMP, and consistent with the national standards set forth in section 
301 of the Magnuson-Stevens Act.
    The Assistant Administrator for Fisheries, NOAA (AA) has determined 
that these actions are compatible with the effective implementation of 
the Commission's ISFMP for Weakfish and consistent with the national 
standards of the Magnuson-Stevens Fishery Conservation and Management 
Act.
    NMFS did not receive any comments on the economic impacts of the 
rule. NMFS prepared a final regulatory flexibility analysis (FRFA) that 
describes the impact of this final rule on small entities. A summary of 
the FRFA follows:
    This final rule is published under the authority of section 803 of 
the Atlantic Coastal Act. The purpose of the rule is to improve 
cooperative management of the Atlantic coast weakfish fishery by 
supporting the Commission's Amendment 4 to the Interstate Fishery 
Management Plan for Weakfish, as required under the Atlantic Coastal 
Act. This rule will 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/
FRFA suggests that the 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 action was explained in the preamble to the proposed 
rule and is not repeated here.
    Two alternatives were considered for this 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 would 
not meet the goals and objectives of the Commission's recommendation. 
Because the Secretary is required to develop and implement a program to 
support the Commission's action, analysis of this additional 
alternative 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 is not able to estimate the number of small entities to which 
the action would apply because vessels most likely to be impacted are 
not required to hold a permit to fish for weakfish in the EEZ. In the 
proposed rule, NMFS requested specifically that the public comment on 
the number of small entities likely to be affected. However, NMFS did 
not receive any information pertaining to the number of small entities 
and is therefore not able to estimate further the number of entities to 
which this rule will apply. Although the number of small entities 
cannot be estimated, NMFS believes 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 
fishermen 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. A copy of 
the FRFA is available from NMFS (see ADDRESSES).
    There will be no reporting and recordkeeping requirements resulting 
from this action.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 697

    Fisheries, Fishing.

    Dated: September 24, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR chapter VI, part 697, 
is amended as follows:

PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

0
1. The authority citation for part 697 is revised to read as follows:

    Authority: 16 U.S.C. 5101 et seq.

0
2. In Sec.  697.2, the definitions for ``Atlantic Coastal Act'' and 
``Director'' are 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.).
* * * * *
    Director means the Director of the Office of Sustainable Fisheries, 
1315 East-West Highway, Silver Spring, MD 20910
* * * * *

0
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

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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.
* * * * *
    (7) Land weakfish for commercial purposes caught in the EEZ in any 
state other than Massachusetts, Rhode Island, New York, New Jersey, 
Delaware, Maryland, Virginia, or North Carolina.

0
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 ' 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. 03-25025 Filed 10-1-03; 8:45 am]
BILLING CODE 3510-22-S