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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 648
          - [Docket No. 060906236-7028-02; I.D. 083006B]
          - RIN 0648-AU83

# AGENCY:

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

# ACTION:

Final rule.

# SUMMARY:

NMFS amends the regulations governing how fishing net mesh size is measured in the Northeast. This change will increase the weight used to measure mesh at or larger than 120 mm in all fisheries. The intent of this rule is to ensure consistent and accurate measurements of fishing net mesh size.

# DATES:

Effective May 1, 2007.

# FOR FURTHER INFORMATION CONTACT:

Douglas Potts, Fishery Management Specialist, (978) 281-9341, FAX (978) 281-9135.

#                     SUPPLEMENTARY INFORMATION:                          ( print page 8288)    

## Background

In recent months, fishing industry representatives have expressed concern that net measurements of larger mesh sizes may not result in accurate measurements. They have claimed that the twine bars of stiffer twines for the larger meshes may not align properly under a load of 5 kg, which is the currently required weight for wedge-shaped gauges used to measure nets. In response to these concerns, the New England Fishery Management Council (Council) sent a letter, on April 19, 2006, to the Administrator, Northeast Region, NMFS (RA) requesting than an 8-kg weight be required to be used for meshes at or greater than 120 mm. The Council recommended the 8-kg weight because it appears to be consistent with international standards of net measurements.

Upon consideration of this request and a survey of international standards, and in consultation with law enforcement officials, the RA determined that the Council's request was reasonable and that an increase in the weight of the wedge gauge may result in more accurate and consistent measurements. The 5-kg weight would still be used to measure meshes smaller than 120 mm. Enforcement officials have recently clarified that, in using the wedge-shaped gauge to measure meshes, they will not shake the net or press on the gauge to force it deeper into the mesh opening.

The increased weight is not expected to result in any de facto reduction in legal mesh size. The increased weight is not enough to significantly distort the mesh and is not expected to result in the use of mesh smaller than that considered in previous analyses of environmental impacts.

## Comments and Responses

NMFS received seven written comments during the 30-day comment period for the September 26, 2006, proposed rule. Five respondents supported the proposed measure. One individual supported the adoption of a different measurement system for measure net mesh size. One commenter did not refer to the specific rule proposed. Significant issues and concerns are summarized as follows.

*Comment 1:*                     One commenter supported the rule and additionally requested that NMFS arrange for training for all law enforcement personnel, including U.S. Coast Guard and state agencies, to assure uniform and consistent measurement of mesh size throughout the region. The commenter further expressed an interest in the U.S. Coast Guard being available to check net mesh size at the dock, perhaps in conjunction with safety checks.                

*Response:*                     Although not within the scope of this rule, NMFS encourages coordination among the various law enforcement agencies to ensure consistency in procedures throughout the region. Regarding the presence of U.S. Coast Guard personnel being available to check net mesh size at the dock, the U.S. Coast Guard determines the procedures that it considers most appropriate for its enforcement activities.                

*Comment 2:*                     Two commenters supported the rule and requested that the heavier weight be used for specific twine thickness or material, in addition to mesh size.                

*Response:*                     NMFS considers regulations that would require determining the specific twine material and/or thickness at sea would be too difficult to implement and enforce.                

*Comment 3:*                     One commenter supported the use of increased force for measuring large mesh sizes, but questioned the justification cited in the proposed rule for switching to an 8-kg weight. He felt that the proposed rule was not supported by the report cited, that 8 kg would not produce sufficient force, and that further justification should be provided. The commenter felt that the wedge gauge should be abandoned in favor of the new electronic OMEGA gauge.                

*Response:*                     NMFS considers the OMEGA gauge, introduced in 2005, as not yet having demonstrated the long-term reliability under field conditions that would be necessary before its adoption as an enforcement tool. Concerns have been raised about the requirement to calibrate the force measurement of the load cell by hanging a calibrated weight from the fixed jaw, since this can only be done under stable conditions that may not be present at sea. In addition, the electronic gauge does not have the long and established legal case history of the wedge gauge.                

The international standard EN ISO 16663-1:2003 specifies that a measuring force equivalent to a mass of 8 kg be applied to a wedge gauge for netting of mesh size above 120 mm. It also specifies that a force equivalent to 5 kg be used for mesh size above 50 mm up to 120 mm and a 2-kg weight be used for mesh of 50 mm or less. This final rule is consistent with these accepted international standards.

One commenter did not specifically address the issues in the proposed rule but did express concerns about the pace of NMFS action and the prospects for marine sanctuaries. This final rule is not the proper mechanism to address these issues.

## Classification

This final rule is promulgated under NMFS's general rule making authority specified at 16 U.S.C. 1855(d) in order to carry out and enforce effectively the gear requirements of all Fishery Management Plans (FMPs) administered by the Northeast Region. The RA determined that this final rule is consistent with the Region's FMPs, is necessary for the conservation and management of the fisheries, and determined that the rule is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The RA has determined that this final rule is a minor technical addition, correction, or change to a management plan and is therefore categorically excluded from the requirement to prepare an Environmental Impact Statement or equivalent document under the National Environmental Policy Act.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification or on the economic impacts of the proposed rule. As a result, a regulatory flexibility analysis was not required and none was prepared.

# List of Subjects in 50 CFR Part 648

      - Fisheries
      - Fishing
      - Reporting and recordkeeping requirements

Dated:February 20, 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 648 is amended as follows:

# PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

1. The authority citation for part 648 continues to read as follows: 

Authority:16 U.S.C. 1801*et seq.*

2. In § 648.51, paragraph (a)(2)(ii) is revised to read as follows: 

      ( print page 8289)    
§ 648.51

* * * * *

(a) * * *

(2) * * *

                            (ii)                             *Measurement of mesh size.*                             Mesh size is measured by using a wedge-shaped gauge having a taper of 2 cm (0.79 inches) in 8 cm (3.15 inches) and a thickness of 2.3 mm (0.09 inches), inserted into the meshes under a pressure or pull of 5 kg (11.02 lb) for mesh size less than 120 mm (4.72 inches) and under a pressure or pull of 8 kg (17.64 lb) for mesh size at, or greater than, 120 mm (4.72 inches). The mesh size is the average of the measurements of any series of 20 consecutive meshes for nets having 75 or more meshes, and 10 consecutive meshes for nets having fewer than 75 meshes. The mesh in the regulated portion of the net is measured at least five meshes away from the lacings running parallel to the long axis of the net.                        

* * * * *

3. In § 648.80, paragraph (f)(2) is revised to read as follows: 

§ 648.80

* * * * *

(f) * * *

                            (2)                             *All other nets.*                             With the exception of gillnets, mesh size is measured by a wedge-shaped gauge having a taper of 2 cm (0.79 inches) in 8 cm (3.15 inches), and a thickness of 2.3 mm (0.09 inches), inserted into the meshes under a pressure or pull of 5 kg (11.02 lb) for mesh size less than 120 mm (4.72 inches) and under a pressure or pull of 8 kg (17.64 lb) for mesh size at, or greater, than 120 mm (4.72 inches).                        

* * * * *

4. In § 648.104, paragraph (a)(2) is revised to read as follows: 

§ 648.104

* * * * *

(a) * * *

(2) Mesh size is measured by using a wedge-shaped gauge having a taper of 2 cm (0.79 inches) in 8 cm (3.15 inches), and a thickness of 2.3 mm (0.09 inches), inserted into the meshes under a pressure or pull of 5 kg (11.02 lb) for mesh size less than 120 mm (4.72 inches) and under a pressure or pull of 8 kg (17.64 lb) for mesh size at, or greater than, 120 mm (4.72 inches). The mesh size is the average of the measurements of any series of 20 consecutive meshes for nets having 75 or more meshes, and 10 consecutive meshes for nets having fewer than 75 meshes. The mesh in the regulated portion of the net is measured at least five meshes away from the lacings, running parallel to the long axis of the net.

* * * * *

[FR Doc. E7-3241 Filed 2-23-07; 8:45 am]

BILLING CODE 3510-22-S