[Federal Register Volume 62, Number 183 (Monday, September 22, 1997)]
[Rules and Regulations]
[Pages 49451-49456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24921]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 697

[Docket No. 970829213-7213-01; I.D. 091696A]
RIN 0648-AJ15


Atlantic Coast Weakfish Fishery; Change in Regulations for the 
Exclusive Economic Zone

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

ACTION: ACTION: Final rule.

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SUMMARY: NMFS is issuing regulations for the exclusive economic zone 
(EEZ) offshore from Maine through Florida that impose a minimum size 
limit of 12 inches (30.5 cm) (total length); minimum mesh sizes in the 
EEZ of 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 gill nets; a bycatch possession limit of 150 lb (67 kg) for 
fisheries using smaller mesh sizes for any one day or trip, whichever 
is longer; a prohibition on the use of flynets in a closed area of the 
EEZ off North Carolina, south of Cape Hatteras from 3 nm to about 40 nm 
offshore; a prohibition on the possession of any weakfish in the closed 
area of the EEZ off North Carolina when using shrimp trawls or crab 
trawls; and a requirement that weakfish harvested for commercial 
purposes in the EEZ be landed only in the following states: 
Massachusetts, Rhode Island, Connecticut, New York, New Jersey, 
Delaware, Maryland, Virginia, or North Carolina. In addition, weakfish 
fishing must be in accordance with the laws of the state where weakfish 
are landed if the state's regulations are more restrictive than the 
Federal regulations. The intent of the regulations is to provide 
protection to the overfished stock of weakfish, ensure the 
effectiveness of state regulations, and aid in the rebuilding of the 
stock.

DATES: Effective October 22, 1997.

ADDRESSES: Copies of supporting documents, including a Final 
Supplemental Environmental Impact Statement and Regulatory Impact 
Review (FSEIS/RIR), are available from Richard H. Schaefer, Chief, 
Staff Office for Intergovernmental and Recreational Fisheries, NMFS, 
8484 Georgia Avenue, Suite 425, Silver Spring, MD 20910-3282.

FOR FURTHER INFORMATION CONTACT: Thomas Meyer/Anne Lange, 301-427-2014.

SUPPLEMENTARY INFORMATION:

Background

    The background and rationale for this rule were contained in the 
preamble to the proposed rule, published in the Federal Register on 
February 14, 1997 (62 FR 6935), and are not repeated here. Additional 
background for this rule is available and contained in a FSEIS/RIR 
prepared by NMFS for this rule (see ADDRESSES).

Comments and Responses

    NMFS received written comments from 17 agencies, states and 
organizations and five individuals, and held four public hearings 
attended by 74 individuals, to gather public comments on the proposed 
rule. Details of both the written comments and the public hearings are 
provided in the FSEIS/RIR published in the Federal Register on July 3, 
1997 (62 FR 36062). Written and public hearing comments are summarized 
here.
    Each of the State and Federal agencies and conservation 
organizations supported the proposed rule and found its measures to be 
compatible with state and Atlantic States Marine Fisheries Commission 
(Commission) fishery management plans for weakfish. The U.S. Coast 
Guard suggested changes to clarify current language and to address 
several enforcement issues. The U.S. Fish and Wildlife Service fully 
supported the proposed rule and urged the earliest possible adoption of 
both the weakfish rule and a proposed rule to implement a program to 
certify specific Bycatch Reduction Devices (BRDs) for shrimp trawls 
(final rule published in the Federal Register on April 16, 1997 (62 FR 
18536)). The Mid-Atlantic Fishery Management Council supported the 
proposed rule and, based on its comments, an additional public hearing 
was held in North Carolina to address industry concerns related to the 
impact of the proposed rule on other fisheries conducted in the closed 
area off North Carolina.
    1. Comment: One agency commented that language, consistent with 
regulations requiring the use of Turtle Excluder Devices (TEDs) in the 
summer flounder fishery, should be included in the prohibitions 
(Sec. 697.7) to require use of TEDs by vessels using nets in the EEZ 
north of Cape Hatteras.
    Response: Under the requirements of section 7 of the Endangered 
Species Act, NMFS has evaluated the impact the weakfish fishery may 
have on turtles. Based on the Biological Opinion issued by NMFS, 
reasonable and prudent measures will be taken to minimize the impact of 
the weakfish fishery on sea turtles. This will include development of 
an effective TED for flynets and a schedule for implementation in 
flynet gear during the times and areas as required for summer flounder 
(50 CFR 217.12 and 227.72). In addition, an Incidental Take Statement 
has been issued by NMFS, anticipating documented lethal or non-lethal 
takes in the weakfish fishery of a maximum total of 20 loggerhead 
turtles and two Kemp's ridleys in flynet, bottom trawl, or gillnet 
gear. Should these levels be exceeded, consultations must be 
reinitiated.
    2. Comment: Several commenters suggested that the proposed closed 
area line should be modified to be consistent with the line in the 
North Carolina regulations, which proceeds in a southeasterly direction 
from Cape

[[Page 49452]]

Hatteras, not due east as in the proposed rule.
    Response: NMFS agrees. The northern boundary of the line to 
delineate no flynetting south of Cape Hatteras has been modified to be 
aligned with the State of North Carolina's line. However, while this 
line will follow as closely as possible the State's line (40250 Loran C 
line), it will be defined by latitude/longitude, and enforced as such. 
Therefore, the line proceeds SE in a straight line from a point, 
35 deg.10.8' N. lat., 75 deg.29.2'W. long. (3 nm from Cape Hatteras), 
generally proceeding along the 40250 LORAN C line, to a point 
35 deg.06.5' N. lat., 75 deg.19.4' W. long. (12 nm from Cape Hatteras).
     3. Comment: Several commenters were concerned that the proposed 
regulations could potentially impact other fisheries in the EEZ off the 
coast of North Carolina.
    Response: NMFS believes it is important to maintain the closed area 
south of Cape Hatteras in order to protect young weakfish. Therefore, 
flynets will not be allowed in the closed area to fish for spot, 
croaker, or any other species. Concerns regarding the squid/mackerel/
butterfish fishery, which uses a small-mesh trawl similar to a flynet 
in the original closed area, led NMFS to adjust the closed area so such 
gears could continue to fish without likelihood of encountering young 
weakfish. Section 697.7(a)(5), the area closed to flynetting in the 
proposed rule has been modified. Vessels fishing with other than shrimp 
trawls (with certified BRDs as required by 50 CFR part 622, Appendix D, 
and TEDs as required by 50 CFR 227.72(e)(2)(ii)) or summer flounder 
trawls (with approved TEDs) are prohibited from fishing in the closed 
area, because they are likely to have a significant bycatch of 
weakfish. However, they are permitted to fish outside the modified 
closed area for squid, croaker, spot, or other species. They are 
limited to a 150-lb (67-kg) weakfish bycatch, unless mesh sizes are 
larger than those described in this rule. Vessels using gillnets with 
proper mesh may operate within the no-flynet area.
    During the winter of 1996-97, a number of vessels using shrimp 
trawls to fish for finfish in the closed area produced a significant 
bycatch and mortality of young weakfish. North Carolina is modifying 
its regulations to require that vessels possess at least 50 percent 
shrimp, by weight, to be considered a shrimp vessel and to be permitted 
in the closed area. The Commission has required North Carolina to 
demonstrate that it has implemented adequate measures to prevent future 
directed finfish harvest with shrimp trawls. To support North Carolina 
and Commission actions, this final rule prohibits the possession of any 
weakfish by vessels using shrimp trawls in the closed area.
    4. Comment: One agency commented that the intent to prohibit 
vessels from catching weakfish in the EEZ and landing the fish in a 
``de minimis'' state (Sec. 697.7(a)(7)) is not enforceable at landing, 
since it is impossible to determine where the fish were harvested, 
either from the EEZ or another state's waters, which may be open.
     Response: NMFS believes that while this measure may be difficult 
to enforce, it will help state agencies enforce their regulations to 
implement the Commission's weakfish management plan. This measure will 
prevent a person from saying he/she caught weakfish in the EEZ, when 
landing for commercial purposes in a ``de minimis'' state or a state 
that has not declared an interest in weakfish management. This will 
make circumventing states' closed fishing seasons and other regulations 
more difficult, since ``de minimis'' states and states without a 
declared interest have little or no weakfish fisheries. Also, it is 
important that those states that have requested ``de minimis'' status 
from the Commission ensure that landings of weakfish in those states 
remain below the level required to maintain their ``de minimis'' 
status. While weakfish landings in these states are not expected to 
increase, if they do increase significantly, the states will be 
required to assume the responsibilities associated with being a 
participating state. Therefore, the ``de minimis'' states should also 
be involved in enforcing this measure. The ``de minimis'' states most 
likely to be impacted by landings from other states' vessels (South 
Carolina and Georgia) have detailed monitoring programs and would 
quickly know if weakfish landings were increasing beyond the ``de 
minimis'' level. The Commission has specifically requested that the 
``de minimis'' language be included in the EEZ rule in order to support 
Commission efforts in state waters. The Commission has requested that 
any enforcement problems raised by this provision be forwarded to the 
Commission's Weakfish Management Board.
    5. Comment: One commenter stated that the language to prohibit the 
possession of more than 150-lb (67-kg) of weakfish during any one day 
or trip, whichever is longer, in the EEZ when fishing with less than 
the approved mesh size should be clarified. It should be changed to 
read:
    ``To prohibit the possession of more than 150-lb of weakfish during 
any one day or trip, whichever is longer, in the EEZ when:
    (i) 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 27/8 
inch (7.3) stretch mesh for gill nets; or
    (ii) fishing during any closed season for weakfish of the state in 
which the weakfish are landed.''
     Response: NMFS agrees and has included such language in the final 
rule. However, in the area off North Carolina that is closed to 
flynetting, no weakfish may be landed in the shrimp fishery (see 
comment 3). In addition, summer flounder gear, even though it has a 
larger than required mesh, are allowed only a 150-lb (67-kg) bycatch of 
weakfish.
    6. Comment: The proposed rule is not consistent with North Carolina 
regulations regarding the use of flynets in the closed area south of 
Cape Hatteras. The proposed rule would only prohibit their use for 
weakfish, while the State prohibits their use for any species in the 
closed area.
    Response: The intent of the proposed rule was to be compatible with 
the State's regulation. The prohibitions section in the final rule has 
been modified to clarify that no fishing with flynets is allowed in the 
specified area south of Cape Hatteras.
     7. Comment: Several individuals commented on the status of the 
stock, stating that the weakfish stock is recovering strongly, that 
references to a declining population are not substantiated by coastwide 
biological information, that the assessment is outdated and incorrect, 
and that declines in catch are due to shifts to other target species.
    Response: Although some signs of recovery are present in the most 
recent years, their is insufficient evidence to say that the weakfish 
stock is recovering strongly. Also, while there may have been shifts of 
effort to other fisheries leading to declines in harvest, the stock 
assessment uses fishery independent data (data from scientific surveys) 
on weakfish abundance through most of its range. These surveys 
demonstrate that there has been a decline in the weakfish stock, though 
there are signs of improvement in recruitment of the most recent year 
classes. Weakfish mature early (age 1) and have high fecundity, so they 
have the ability to recover quickly, given favorable conditions and 
reduced fishing mortality rates (F). The last stock assessment for 
which population estimates are available (catch matrix through 1994) 
indicated that the

[[Page 49453]]

population bottomed out in 1991 and has recovered somewhat. There may 
be recent indications of improved recruitment and observations of more, 
larger (older) fish, in 1996; however, fishing mortality rates for 
recent years remain very high (about 1.9 for age 2+, with catch matrix 
through 1995). Improved recruitment will likely cause a prompt and 
noticeable short-term stock improvement. However, if the fishery 
continues to operate at high F, the promising recruitment levels will 
not be reflected in subsequent improvements in the adult population. 
Until a revised assessment has been completed that indicates 
improvements in stock status, other than a year or two of good 
recruitment, it is premature to say the stock is recovering.
    The science used by the Commission's weakfish stock assessment and 
technical committees relies on the best available fishery-dependent and 
fishery-independent data. The models and analyses involved in the 
assessment are those that are best suited for the available data. The 
assessment is based on the coastwide status of the stock and does not 
look only at local events.
    8. Comment: One agency and an individual stated that small- mesh 
trawls used in the area south of Cape Hatteras must be defined not by 
their gear parameters but by their fishing intentions (e.g., shrimping 
as opposed to shrimp trawls; floundering, as opposed to flounder 
trawls.) Under the proposed rule, it would be legal to finfish using 
shrimp trawls in the area south of Cape Hatteras, as long as weakfish 
are not retained. There are substantial data that indicate that this 
leads to tremendous waste in discards. Flounder trawls have no business 
in the area south of Cape Hatteras, outside the flounder trawling 
season. On the other hand, squid fishermen may likely take quantities 
of weakfish over 150-lb (67-kg) in legitimate squid/mackerel/herring/
butterfish operations, but those fish must be discarded. These 
fisheries should be defined with respect to the amount of the target 
species on their vessel when they land, and not simply by the nets they 
use. At least 51 percent of their catch must be comprised of one or 
more of the target species. Another option would be to consider closed 
seasons, particularly for the shrimp fishery, to avoid fishing with 
shrimp trawls during the winter (December 1-April 1).
    Response: NMFS is concerned over reports of fishing with small-mesh 
nets causing the discard of large amounts of weakfish south of Cape 
Hatteras. However, under the NMFS regulation, a state's more 
restrictive regulations apply to weakfish caught in the EEZ when those 
fish are landed in a state. A state could choose to institute such 
suggested regulations to reduce bycatch on small-mesh fishing vessels 
landing in the state.
    Also, north of Cape Hatteras, in the future, NMFS will consider 
modifying the regulations to allow states to issue special permits that 
will allow legitimate small-mesh fisheries for squid/mackerel/herring/
butterfish to take more than 150-lb (67-kg) of legal size weakfish 
during any one day or trip, whichever is longer, in the EEZ during the 
state's open weakfish season. North Carolina has requested such permits 
because it believe that larger quantities of legal weakfish may, when 
the population is moving through the area, be taken during these 
fisheries directed at other species. This is not expected to occur 
frequently, but North Carolina wants the ability to allow vessels to 
land these fish, rather than discard them.
    9. Comment: Several commenters stated that the 2 7/8-inch minimum 
mesh size for gillnets is appropriate for North Carolina during winter; 
however, they questioned whether this mesh size is conservative for a 
12-inch (30.5-cm) weakfish during the spring/summer/fall when weakfish 
are gravid or well-fed, thereby having greater girth. NMFS should 
consider a more conservative mesh size during spring/summer/fall (i.e., 
3 1/8-inch (7.9-cm) stretch mesh).
    Response: NMFS used the mesh sizes approved and required by the 
Commission because these mesh sizes have been reviewed and approved by 
the Commission Weakfish Technical Committee and Management Board, and 
have been implemented by the states. NMFS participates in the 
Commission review and agrees that these mesh sizes are based on the 
best information available. If the Commission approves and recommends 
changes to weakfish mesh sizes, and if NMFS agrees the changes are 
consistent with the best information available, NMFS will adjust the 
EEZ mesh regulations to be compatible with the Commission's 
recommendations.
    10. Comment: Several commenters were concerned whether, once a 
closure of the area south of Cape Hatteras is imposed on flynets, NMFS 
will be able to open the area to large-mesh flynets in the near future.
    Response: Once the stock has recovered, NMFS will consider 
reopening this area to larger mesh flynetting, if the Commission 
determines that this gear is appropriate for capturing legal-sized 
weakfish.
    11. Comment: One commenter indicated that New York has taken 
aggressive management steps to restore weakfish and to ensure a healthy 
weakfish population. NMFS regulations will complement the regulations 
already in effect in state waters and can only benefit what is now a 
severely stressed weakfish population.
    Response: NMFS agrees. The intention of this rule is to implement 
EEZ management measures that are compatible with state and Commission 
measures already in place in state waters.
    12. Comment: One commenter and a conservation organization stated 
that the status of the Atlantic weakfish stock has been grave for a 
long time. The unfortunate invalidation of the 1995 NMFS moratorium on 
weakfish fishing in Federal waters further delayed necessary Federal 
action for this important stock and makes implementation of current 
proposed measures for weakfish even more urgent. Federal action to 
begin to rebuild the weakfish stock is long overdue. Because weakfish 
fishing operations in the EEZ mainly target large, vulnerable 
aggregations of juvenile fish, they support a full moratorium on 
weakfish fishing in Federal waters as a strong conservation measure 
that is easy to enforce. Given the previous court ruling and the 
urgency of the situation, however, they support the intention to 
complement the Commission's weakfish plan.
    Response: NMFS agrees that establishing management measures in the 
EEZ is crucial to the recovery of the weakfish population. Adoption of 
Amendment 3 to the Commission Weakfish Fishery Management Plan, and its 
recommendations for compatible actions in Federal waters, should begin 
to protect and restore the weakfish population.
    13. Comment: One commenter stated that he strongly supports the 
approach taken by NMFS to address the concerns regarding landing 
weakfish in ``de minimis'' states. However, he suggested that from an 
administrative standpoint, NMFS may want to explore language that would 
allow a currently ``de minimis'' state, if it so desires, to declare an 
interest in the fishery without issuance of a new Federal rule.
    Response: NMFS understands that current ``de minimis'' states may, 
at some future time, declare an interest in participating in the 
fishery, and language that would allow such a declaration without 
issuance of a new rule would be useful. However, since the NMFS 
proposed rule is designed to be compatible with measures

[[Page 49454]]

implemented by the states, NMFS can not determine what measures may be 
needed in the EEZ off the coasts of South Carolina and Georgia until 
they establish measures in their own waters. Once a state's ``de 
minimis'' status is removed by the Commission, NMFS sees no reason to 
restrict commercial landings in the state. Therefore, such restrictions 
will be removed by rulemaking upon notification from the Commission.
    14. Comment: One commenter indicated that the statement that shrimp 
and flounder trawls are the only types of trawls allowed in the area 
closed to flynets is incorrect. North Carolina also allows crab trawls.
    Response: The NMFS proposed rule would have allowed only shrimp or 
flounder trawls to trawl in the closed area of the EEZ. This was 
because the rule was intended to prohibit flynets, as in the North 
Carolina plan, and it was not possible to define a flynet with 
sufficient specificity for this rule. Therefore, NMFS specified which 
types of fishing gear would be allowed in the closed area. NMFS 
contacted the North Carolina Division of Marine Fisheries, which 
reported few, if any crab nets used in the EEZ off North Carolina; 
therefore, this gear was excluded.
    15. Comment: One industry organization requested that NMFS 
reconsider closing the entire EEZ south of Cape Hatteras, stating that 
the current North Carolina state closure to North Carolina vessels was 
developed in the absence of any standards pertaining to fairness and 
equitability among fishery participants. North Carolina fishermen have 
taken a larger reduction in fishing effort compared to fishermen in 
other states and North Carolina vessels are the only vessels impacted 
by this regulation. They do not believe that this closure is consistent 
with national standards of the Magnuson-Stevens Act.
    Response: NMFS has reconsidered closing the entire EEZ south of 
Cape Hatteras and the final rule now closes an area out to only 20-40 
nm, not out to 200 nm. The North Carolina plan was approved by the 
Commission as meeting the fishing mortality reduction requirements in 
Amendment 3 of the Weakfish FMP. All states were held to the same level 
of reduction, though it was up to each state to determine how it would 
meet that reduction. NMFS' proposed regulations were compatible with 
the states' regulations. Since, under North Carolina regulations, North 
Carolina vessels may not use a flynet south of Cape Hatteras, this rule 
does not further restrict North Carolina vessels beyond what the State 
has already implemented. However, the Federal regulation does apply to 
all vessels, not just North Carolina vessels, fishing in the modified 
closed area of the EEZ, south of Cape Hatteras. Therefore, the rule is 
consistent with the national standards of the Magnuson-Stevens Act.
    16. Comment: The NMFS justification not to conduct an Initial 
Regulatory Flexibility Analysis (IRFA) violates provisions of the 
Regulatory Flexibility Act. The proposed rule contains four reasons why 
no IRFA is necessary, all of which are thoroughly invalid.
    Response: A regulatory flexibility analysis (RFA) is required when 
there is a significant economic impact on a substantial number of small 
entities. NMFS believes that the proposed regulations do not meet the 
above criteria for development of an RFA because the impacts on small 
entities have already occurred through state implementation of 
Amendment 3 to the Commission's Weakfish FMP. These Federal regulations 
are designed to be compatible with state regulations and will have 
minimal additional impacts. In the case of North Carolina, the State 
implemented regulations in October 1996 that closed the entire EEZ 
south of Cape Hatteras to flynets. This rule has modified the closed 
area by significantly reducing its size, which will lessen the impact 
on North Carolina fishermen. However, non-North Carolina vessels are 
now affected by the Federal closure. There are no records of vessels 
from states other than North Carolina fishing with flynets in the 
Federal closed area. North Carolina vessels affected by the regulations 
are able to fish in other areas or with different gears.
    17. Comment: An industry organization requested that, in place of 
the full EEZ closure, NMFS consider leaving an area outside of 6 nm 
open to flynet fishing south of Cape Hatteras only during December 
through March. Flynet vessels using approved mesh size and adhering to 
minimum fish size would be permitted to fish in that area only during 
the specified time period.
    Response: NMFS has modified the closed area as noted above (comment 
3).
    18. Comment: One commenter asked why NMFS hasn't continued to 
pursue a complete moratorium on fishing for weakfish in the EEZ, as was 
imposed in November 1995.
    Response: The NMFS rule, which imposed the moratorium in 1995, was 
set aside by the court in February 1996. The rule had been developed 
prior to the Commission's completion of Amendment 3 to the Weakfish FMP 
as a measure needed to protect weakfish. The final rule accounts for 
the measures already implemented by the states under the Commission's 
plan and supports coastwide coordination in the long-term management of 
this stock.
    19. Comment: One individual asked why NMFS doesn't implement a 
coastwide minimum size of 13 inches (33.0 cm)?
    Response: The proposed rule is a first step in developing 
management measures compatible with those of the Commission. The 
Commission allows states to implement size limits and other management 
measures to reduce F. NMFS will consider additional measures, such as a 
13-inch (33-mm) minimum size, if the Commission determines further 
reductions in F are needed in the future.
    20. Comment: A North Carolina fishermen association disagreed with 
the decision that a regulatory flexibility analysis was not needed and 
stated that the EEZ closure to flynet fishing will significantly impact 
the flynet fishery.
    Response: The North Carolina vessels that will be impacted by the 
EEZ closure have already been prohibited from a larger area by North 
Carolina regulations that went into effect on October 1, 1996. Thus the 
Federal regulation is not expected to have a significant economic 
impact. Further, the vessels prohibited from the area can move to other 
areas and fisheries and, in fact, most have already done so. As a 
result, a regulatory flexibility analysis was not prepared.

Changes from the Proposed Rule

    The definition section, Sec. 697.2, of the proposed rule contained 
22 definitions. Six of these definitions are already included in 50 CFR 
600.10. Any terms defined in Sec. 600.10 are common to all domestic 
fishing regulations appearing in Chapter VI of title 50 CFR. Therefore, 
the six definitions were removed from the final rule to avoid 
duplication. A definition of crab trawls was added.
    In response to public, state and Federal agency, and Commission 
comments, the following changes have been made to the prohibition 
section, Sec. 697.7, of the proposed rule:
    1. The area of the EEZ south of Cape Hatteras, closed to 
flynetting, has been modified to:
    a. Have its northern boundary conform with North Carolina's closed 
area boundary line;
    b. Extend out to only about 20-40 nm from the shore, depending on 
the contour of the land; and
    c. Extend only to the North Carolina--South Carolina state line.
    2. The closed area applies to all flynetting, not just flynetting 
for weakfish.
    3. Washington, DC, which had incorrectly been listed as a state 
where

[[Page 49455]]

weakfish caught in the EEZ may be landed, has been removed from the 
list.
    4. A prohibition on the possession of weakfish in the closed EEZ 
area when using shrimp trawls and crab trawls has been added.
    5. Florida was granted ``de minimis'' status by the Commission on 
August 1, 1997, and is therefore no longer included in the list of 
states where weakfish harvested for commercial purposes in the EEZ may 
be landed.

Changes from the Final Supplemental Environmental Impact Statement 
(FSEIS)

    In response to comments from the North Carolina Division of Marine 
Fisheries (NCDMF) the outer boundary of the closed area south of Cape 
Hatteras was extended approximately 5 nm seaward of the line defined in 
the FSEIS to prevent fishing on small weakfish known to concentrate 
beyond the closed area described in the FSEIS. Also, crab trawls have 
been included, with shrimp trawls, in the prohibition of possession of 
weakfish in the closed area of the EEZ off North Carolina.

Classification

    The Assistant Administrator for Fisheries has determined that these 
actions are compatible with the effective implementation of the 
Commission's coastal FMP, and consistent with the national standards of 
the Magnuson-Stevens Act. The Secretary has taken into account the 
data, views, and comments received during the comment period.
    Five different alternatives to regulate the harvest of weakfish in 
the EEZ were examined in the FSEIS/RIR. Alternative D, which applies 
compatible Federal regulations in the EEZ, provides the greatest 
support for the Commission's Weakfish Plan. Alternatives prohibiting 
the harvest and possession or harvest only in the EEZ were also 
considered, as well as alternatives establishing separate specific 
regulations in the EEZ, applying state regulations in the EEZ, or doing 
nothing. NMFS determined that, among the alternatives analyzed, the 
Federal measures discussed above are the most appropriate measures to 
support the Commission's Weakfish Plan.
    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 when this rule was proposed, that it 
would not have a significant economic impact on a substantial number of 
small entities. The reasons for the certification were published in the 
preamble to proposed rule. NMFS received a comment, addressed above, 
regarding the certification. This comment did not cause this 
determination to be changed. As a result, no regulatory flexibility 
analysis was prepared.
    Further information is available in the FSEIS/RIR (See ADDRESSES).
    This final rule has been determined to be not significant for 
purposes of E.O. 12866.

List of Subjects in 50 CFR Part 697

    Administrative practice and procedure, Fisheries, Fishing.

    Dated: September 12, 1997.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR Chapter VI, part 
697, is revised to read as follows:

PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

    Sec.
    697.1 Purpose and scope.
    697.2 Definitions.
    697.3 Relation to the Magnuson-Stevens Act.
    697.4 Relation to state law.
    697.5 Civil procedures.
    697.6 Specifically authorized activities.
    697.7 Prohibitions.

    Authority: 16 U.S.C. 1851 note; 16 U.S.C. 5101 et seq.


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 section 6 of the Atlantic Striped Bass Conservation Act 
Appropriations Authorization, 16 U.S.C. 1851 note, and govern fishing 
in the EEZ on the Atlantic Coast for species covered by those acts.


Sec. 697.2  Definitions.

    In addition to the definitions in Sec. 600.10 of this chapter, the 
terms in this part have the following meanings:
    Approved TED means any approved Ted as deined at 50 CFR 217.12.
    Atlantic striped bass means members of stocks or populations of the 
species Morone saxatilis found in the waters of the Atlantic Ocean 
north of Key West, FL.
    Block Island Southeast Light means the aid to navigation light 
located at Southeast Point, Block Island, RI, and defined as follows: 
Located at 40 deg.09.2'N. lat., 71 deg.33.1'W. long; is 201 ft (61.3 m) 
above the water; and is shown from a brick octagonal tower 67 ft (20.4 
m) high attached to a dwelling on the southeast point of Block Island, 
RI.
    BRD means bycatch reduction device.
    Certified BRDs means any BRD, as defined in 50 CFR part 622 
Appendix D: Specifications for Certified BRDs.
    Commercial purposes - means for the purpose of selling or bartering 
all or part of the fish harvested.
    Commission means the Atlantic States Marine Fisheries Commission 
established under the interstate compact consented to and approved by 
Congress in Public Laws 77-539 and 81-721.
    Continuous transit means that a vessel does not have fishing gear 
in the water and remains continuously underway while in the EEZ.
    Crab trawl means any trawl net that is rigged for fishing and has a 
mesh size of 3.0 inches (7.62 cm), as measured between the centers of 
opposite knots when pulled taut.
    De minimis state means any state where the landings are so low that 
the Commission's Fisheries Management Board has exempted that state 
from some of its regulatory responsibilities under an Interstate 
Fishery Management Plan.
    Directed fishery means any vessel/person fishing for a stock using 
gear or strategies intended to catch a given target species, group of 
species, or size class. For the purpose of this regulation, any vessel/
person targeting weakfish.
    Flynets, for the purpose of this part, means any trawl net, except 
shrimp trawl nets containing certified BRDs and approved TEDs, when 
required under 50 CFR 227.72(e)(2), and except trawl nets that comply 
with the gear restrictions specified at Sec. 648.104 of this chapter 
for the summer flounder fishery and contain an approved TED, when 
required under 50 CFR 227.72(e)(2).
    Land means to begin offloading fish, to offload fish, or to enter 
port with fish.
    Montauk Light means the aid to navigation light located at Montauk 
Point, NY, and defined as follows: Located at 41 deg.04.3'N. lat., 
71 deg.51.5'W. long.; is shown from an octagonal, pyramidal tower, 108 
ft (32.9 m) high; and has a covered way to a dwelling.
    Point Judith Light means the aid to navigation light located at 
Point Judith, RI, and defined as follows: Located at 41 deg.21.7'N. 
lat., 71 deg.28.9'W. long.; is 65 ft (19.8 m) above the water; and is 
shown from an octagonal tower 51 ft (15.5 m) high.
    Retain means to fail to return Atlantic striped bass or weakfish to 
the sea immediately after the hook has been removed or the fish has 
otherwise been released from the capture gear.

[[Page 49456]]

    Shrimp trawl net means any trawl net that is rigged for fishing and 
has a mesh size less than 2.50 inches (6.35 cm), as measured between 
the centers of opposite knots when pulled taut, and each try net, as 
defined at Sec. 622.2 of this chapter, that is rigged for fishing and 
has a headrope length longer than 16.0 ft (4.9 m).
    TED (turtle excluder device) means a device designed to be 
installed in a trawl net forward of the codend for the purpose of 
excluding sea turtles from the net.
    Weakfish means members of the stock or population of the species 
Cynoscion regalis, found along the Atlantic Coast from southern Florida 
to Massachusetts Bay.


Sec. 697.3  Relation to the Magnuson-Stevens Act.

    The provisions of sections 307 through 311 of the Magnuson-Stevens 
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-Stevens Act.


Sec. 697.4  Relation to state law.

    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.


Sec. 697.5  Civil procedures.

    The civil procedure regulations at 15 CFR part 904 apply to civil 
penalties, permit sanctions, seizures, and forfeitures under the 
Atlantic Striped Bass Act and the Atlantic Coastal Fisheries 
Cooperative Management 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 the regulations in this 
part.


Sec. 697.7  Prohibitions.

    (a) Atlantic Coast weakfish fishery. In addition to the 
prohibitions set forth in Sec. 600.725 of this chapter, the following 
prohibitions apply. It is unlawful for any person to do any of the 
following:
    (1) Fish for, harvest, or possess any weakfish less than 12 inches 
(30.5 cm) in total length (measured as a straight line along the bottom 
of the fish from the tip of the lower jaw with the mouth closed to the 
end of the lower tip of the tail) from the EEZ.
    (2) Retain any weakfish less than 12 inches (30.5 cm) in total 
length taken in or from the EEZ.
    (3) Fish for weakfish in the EEZ with a minimum 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 for trawls and 2 7/8-inch (7.3 cm) stretch mesh 
for gillnets.
    (4) To 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 (9.5 
cm) diamond stretch mesh for finfish trawls and 2 7/8-inch (7.3 cm) 
stretch mesh for gillnets.
    (5) To fish using a flynet in the EEZ off North Carolina in the 
area bounded as follows:
    (i) On the north by a straight line connecting points 
35 deg.10.8'N. lat., 75 deg.29.2'W. long. (3 nm off Cape Hatteras) and 
35 deg.03.5'N. lat., 75 deg.11.8'W. long. (20 nm off Cape Hatteras).
    (ii) The east by a straight line connecting points 35 deg.03.5'N. 
lat., 75 deg.11.8'W. long. (20 nm off Cape Hatteras) and 33 deg.21.1'N. 
lat., 77 deg.57.5'W. long., (about 30 nm off Cape Fear on the extension 
of the North Carolina/South Carolina state line into the EEZ).
    (iii) On the south by a straight line connecting points 
33 deg.21.1'N. lat., 77 deg.57.5'W. long., and 33 deg.48.8'N. lat., 
78 deg.29.7'W. long. (3 nm off Little River Inlet on the North 
Carolina/South Carolina state line).
    (iv) On the west by state waters.
    (6) To possess any weakfish in the closed area of the EEZ, 
described in Paragraph (a)(5) of this section, when fishing with shrimp 
trawls or crab trawls.
    (7) To land weakfish for commercial purposes caught in the EEZ in 
any state other than Massachusetts, Rhode Island, Connecticut, New 
York, New Jersey, Delaware, Maryland, Virginia, or North Carolina.
    (b) Atlantic striped bass fishery. In addition to the prohibitions 
set forth in Sec. 600.725, the following prohibitions apply. It is 
unlawful for any person to do any of the following:
    (1) Fish for Atlantic striped bass in the EEZ.
    (2) Harvest any Atlantic striped bass from the EEZ.
    (3) Possess any Atlantic striped bass in or from the EEZ, except 
for the following area: The EEZ within Block Island Sound, north of a 
line connecting Montauk Light, Montauk Point, NY, and Block Island 
Southeast Light, Block Island, RI; and west of a line connecting Point 
Judith Light, Point Judith, RI, and Block Island Southeast Light, Block 
Island, RI. Within this area, possession of Atlantic striped bass is 
permitted, provided no fishing takes place from the vessel while in the 
EEZ and the vessel is in continuous transit.
    (4) Retain any Atlantic striped bass taken in or from the EEZ.
[FR Doc. 97-24921 Filed 9-17-97; 2:29 pm]
BILLING CODE 3510-22-F