[Federal Register Volume 72, Number 114 (Thursday, June 14, 2007)]
[Proposed Rules]
[Pages 32830-32832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11524]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 697

[Docket No. 070516106-7106-01; I.D. 041907A]
RIN 0648-AV44


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: [email protected]. 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: (301) 713-0596

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

[[Page 32831]]

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 Sec.  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

[[Page 32832]]

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 beamended 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 Sec.  697.7, paragraph (a)(4) is revised to read as follows:


Sec.  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 (9.5cm) 
diamond stretch mesh for finfish trawls and 2 7/8-inch (7.3 cm) stretch 
mesh for gillnets.
* * * * *
[FR Doc. E7-11524 Filed 6-13-07; 8:45 am]
BILLING CODE 3510-22-S