61116 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Rules and Regulations

south by 31°20.3’ N. lat.; on the east by

79°49.8’ W. long.; and on the west by

79°51.1’ W. long.

(xlvi) Artificial Reef— KBY is

bounded on the north by 30°48.6’ N.

lat.; on the south by 30°46.6’ N. lat.; on

the east by 81°15.0’ W. long.; and on the

west by 81°17.4’ W. long.

(xlvii) Artificial Reef— KTK is

bounded on the north by 31°31.3’ N.

lat.; on the south by 31°29.3’ N. lat.; on

the east by 80°59.1’ W. long.; and on the

west by 81°01.5’ W. long.

(xlviii) Artificial Reef— MRY is

bounded on the north by 30°47.5’ N.

lat.; on the south by 30°45.5’ N. lat.; on

the east by 81°05.5’ W. long.; and on the

west by 81°07.8’ W. long.

(xlix) Artificial Reef— SAV is

bounded on the north by 31°55.4’ N.

lat.; on the south by 31°53.4’ N. lat.; on

the east by 80°45.2’ W. long.; and on the

west by 80°47.6’ W. long.

(l) Artificial Reef— SFC is bounded on

the north by 31°00.8’ N. lat.; on the

south by 30°59.8’ N. lat.; on the east by

81°02.2’ W. long.; and on the west by

81°03.4’ W. long.

(li) Artificial Reef— WW is bounded

on the north by 31°43.5’ N. lat.; on the

south by 31°42.2’ N. lat.; on the east by

79°57.7’ W. long.; and on the west by

79°59.3’ W. long.

(2) To determine what restrictions

apply in the SMZs listed in §

622.35(e)(1), follow this table:

IN SMZs SPECIFIED IN THE FOLLOWING PARAGRAPHS OF §

622.35 THESE RESTRICTIONS APPLY

(e)(1)(i) through (x), (e)(1)(xx), and (e)(1)(xxii) through (xxxix) Use of a powerhead to take South Atlantic snapper-grouper is prohibited. Possession of a powerhead and a mutilated South Atlantic

snapper-grouper in, or after having fished in, one of these SMZs

constitutes prima facie evidence that such fish was taken with a

powerhead in the SMZ.

(e)(1)(i) through (xviii) and (e)(1)(xxii) through (li) Fishing may only be conducted with handline, rod and reel, and

spearfishing gear.

(e)(1)(i) through (li) Use of a sea bass pot or bottom longline is prohibited.

(e)(1)(xii) through (xviii) and (e)(1)(xl) through (li) Possession of South Atlantic snapper-grouper taken with a powerhead

is limited to the bag limits specified in § 622.39(d)(1).

(e)(1)(xix) and (e)(1)(xx) A hydraulic or electric reel that is permanently affixed to the vessel is

prohibited when fishing for South Atlantic snapper-grouper.

(e)(1)(xix) and (e)(1)(xxi) Use of spearfishing gear is prohibited.

* * * * *

4. In § 622.39, paragraph (a)(4) is

added to read as follows:

§ 622.39 Bag and possession limits.

(a) * * *

(4) Paragraph (a)(1) of this section

notwithstanding, a person aboard a

vessel for which a commercial permit

for South Atlantic snapper-grouper has

been issued must comply with the bag

limits specified in paragraph (d)(1) of

this section for South Atlantic snappergrouper taken with a powerhead,

regardless of where taken, when such

snapper-grouper are possessed in an

SMZ specified in § 622.35(e)(1)(xii)

through (e)(1)(xviii) or (e)(1)(xl) through

(e)(1)(li).

* * * * *

§§ 622.17 and 622.41 [Amended]

5. In addition to the amendments set

forth above, in 50 CFR part 622, remove

the telephone number, ‘‘813-570-5344’’,

and add in its place ‘‘727-570-5344’’ in

the following places:

(a) Section 622.17(b)(1) introductory

text; and

(b) Section 622.41(a)(4) introductory

text.

[FR Doc. 00–26359 Filed 10–13–00; 8:45 am]

BILLING CODE: 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 697

[Docket No. 000824246-0246-01; I.D.

062700F]

RIN 0648-AO33

Horseshoe Crab; Interstate Fishery

Management Plans

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Declaration of a moratorium;

interim final rule.

SUMMARY: In accordance with the

Atlantic Coastal Fisheries Cooperative

Management Act (Act), as amended,

NMFS, determined, on July 7, 2000, that

the Commonwealth of Virginia is not in

compliance with Addendum 1 to the

Atlantic States Marine Fisheries

Commission’s (Commission) Interstate

Fishery Management Plan (ISFMP) for

horseshoe crab and has failed to

implement measures necessary for the

conservation of the fishery in question.

Pursuant to the Act, NMFS hereby

declares a Federal moratorium on

fishing for horseshoe crabs in Virginia

waters and issues regulations

prohibiting the possession of horseshoe

crabs in Virginia waters and the landing

of horseshoe crabs in Virginia,

regardless of where they were caught.

The purpose of this action is to support

the interstate fishery management

system and to encourage the

implementation and enforcement of the

Commission’s ISFMP on horseshoe

crabs.

DATES: Effective October 23, 2000.

ADDRESSES: Copies of an Environmental

Assessment and Regulatory Impact

Review (EA/RIR) are available from

Richard H. Schaefer, Chief, Staff Office

for Intergovernmental and Recreational

Fisheries, NMFS, 8484 Georgia Avenue,

Silver Spring, Maryland 20910.

FOR FURTHER INFORMATION CONTACT: Paul

Perra, Staff Office for Intergovernmental

and Recreational Fisheries, NMFS,

Headquarters 301-427-2014.

SUPPLEMENTARY INFORMATION:

Background

The Atlantic Coastal Fisheries

Cooperative Management Act, as

amended in 1996 (Act), 16 U.S.C. 5101

et seq., was enacted to support and

encourage the development,

implementation, and enforcement of the

Commission’s ISFMPs to conserve and

manage Atlantic coastal fishery

resources. Section 806 of the Act

specifies that, after notification by the

Commission that an Atlantic coastal

state is not in compliance with an

ISFMP of the Commission, the Secretary

of Commerce (Secretary) shall make a

Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Rules and Regulations 61117

finding, no later than 30 days after

receipt of the Commission’s notification,

on: (1) Whether the state has failed to

carry out its responsibilities to

implement and enforce the

Commission’s ISFMP; and (2) whether

the measures that the state has failed to

implement and enforce are necessary for

the conservation of the fishery in

question. In making such a finding, the

Act requires the Secretary to give careful

consideration to the comments of the

Commission, the Atlantic coastal state

found out of compliance by the

Commission, and the appropriate

Regional Fishery Management Councils.

If the Secretary finds that the state is not

in compliance with the Commission’s

ISFMP, and that the measures the state

has failed to implement are necessary

for the conservation of the fishery, the

Secretary must declare a moratorium on

fishing in that fishery within the waters

of the noncomplying state. The

Secretary must specify the moratorium’s

effective date, which may be any date

within 6 months after the declaration of

the moratorium, and may issue

regulations necessary to implement the

moratorium. The Secretary has

delegated this decision-making

authority to NMFS.

Commission Finding of Noncompliance

Because of concern that the horseshoe

crab population may be in the process

of being depleted and the need to collect

comprehensive information on the

horseshoe crab fishery, the Commission

adopted an ISFMP to improve data

collection programs for horseshoe crabs

in 1999. In February 2000, after

extensive review of historical

information on the fishery, the

Commission adopted Addendum 1 to

the ISFMP. Addendum 1 to the ISFMP

for horseshoe crab is viewed by the

Commission as a risk-averse,

cooperative State/Federal means of

controlling fishing effort on horseshoe

crabs. The Commission used average

landings over a base period of years to

reduce each state’s landings for

horseshoe crab commercial bait fisheries

by 25 percent for the 2000 fishing year.

Addendum 1 caps the Atlantic coast

state landings in the year 2000 at

2,275,296 horseshoe crabs; the

Commonwealth of Virginia is allowed a

landings quota of 152,495 horseshoe

crabs – a 25-percent reduction from the

average calculated using 1995-1997 as

the base period.

Rather than implementing the 152,495

horseshoe crab quota by May 1, 2000,

Virginia maintained an annual quota of

710,000 horseshoe crabs until July 28,

2000. The Commission found that the

Commonwealth of Virginia has not

implemented and is not enforcing the

Commission’s ISFMP for horseshoe crab

because it has failed to establish a quota

on commercial horseshoe crab landings

of 152,495 horseshoe crabs as specified

in Addendum 1. The Commission

notified the Secretary of its finding in a

letter on June 9, 2000. Since that time,

Virginia implemented through

emergency regulations on July 28, 2000,

an annual quota of 355,000 horseshoe

crabs and a requirement for fishermen to

use only one-half of a female horseshoe

crab or two-halves of a male horseshoe

crab in a bait bag if they use horseshoe

crabs as bait.

NMFS Determination Regarding

Compliance by the Commonwealth of

Virginia

On July 7, 2000, based on a careful

analysis of all relevant information, and

taking into account comments presented

by the Commission and the

Commonwealth of Virginia, NMFS

found that the Commonwealth of

Virginia is not in compliance with the

Commission’s ISFMP for horseshoe crab

based on Virginia’s failure to implement

and enforce the commercial quota

specified in Addendum 1, and that the

measure Virginia failed to implement

and enforce is necessary for the

conservation of the horseshoe crab

fishery.

Whether Virginia Implemented and is

Enforcing Addendum 1

Addendum 1 requires Virginia to

implement a quota of 152,495 horseshoe

crab by May 1, 2000. Instead, Virginia

maintained its 710,000 horseshoe crab

annual quota until July 28, 2000, when

it reduced its quota to 355,000

horseshoe crabs by emergency

regulations. Therefore, Virginia has

failed to carry out its responsibility

under 16 U.S.C. 5104 to implement and

enforce Addendum 1 of the ISFMP for

horseshoe crabs.

Whether the Measure is Necessary for

Conservation

‘‘Conservation’’ is defined in the Act

as ‘‘the restoring, rebuilding, and

maintaining of any coastal fishery

resource and the marine environment,

in order to assure the availability of

coastal fishery resources on a long-term

basis.’’ The best available scientific

information suggests that the horseshoe

crab population is at risk of decline. If

the population is in decline, the ability

to restore, rebuild, and maintain the

population to assure the availability of

horseshoe crabs on a long-term basis is

compromised, especially in light of the

fact that horseshoe crabs are extremely

vulnerable to overexploitation. They are

easily harvested and breed only once a

year after reaching maturity at 10 years

of age. Furthermore, all states in the

Delaware Bay area – New Jersey,

Maryland, Pennsylvania, and Delaware

– have reduced horseshoe crab landings

in line with Addendum 1, yet Virginia

has not. As a result, the fishery has

merely shifted landings to Virginia,

thereby negating any conservation

benefits of the other states’ reductions in

allowable landings. For these reasons,

Virginia’s implementation of the quota

specified in Addendum 1 is necessary to

support the interstate fishery

management system designed to

promote conservation of coastal fishery

resources in a cooperative manner and

to allow the Commission to assure the

availability of horseshoe crabs on a

long-term basis through further study

and management measures, rather than

risk depletion.

Declaration of a Moratorium and

Issuance of Regulations

An Environmental Assessment and

Regulatory Impact Review (EA/RIR)

were completed to analyze the impacts

caused by various alternatives for the

implementation of a moratorium and

necessary regulations. After a thorough

review of the EA/RIR, NMFS is hereby

declaring, pursuant to subsection 806(c)

of the Act, a Federal moratorium on

fishing for horseshoe crabs in Virginia

waters and issuing, pursuant to

subsection 806(d) of the Act, regulations

that contain measures necessary to

implement section 806, both to be

effective October 23, 2000, unless

Virginia is found in compliance with

the Commission’s ISFMP for horseshoe

crabs by that time. The moratorium on

fishing for horseshoe crabs includes the

statutory prohibitions listed in

subsection 806(e) of the Act (16 U.S.C.

5106(e)). Subsection 806(e) states:

‘‘During the time in which a moratorium

under this section is in effect, it is

unlawful for any person to - (1) violate

the terms of the moratorium or of any

implementing regulation issued under

subsection 806(d) of this section; (2)

engage in fishing for any species of fish

to which the moratorium applies within

the waters of the State subject to the

moratorium; (3) land, attempt to land, or

possess fish that are caught, taken, or

harvested in violation of the moratorium

or of any implementing regulation

issued under subsection (d) of this

section; (4) fail to return to the water

immediately, with a minimum of injury,

any fish to which the moratorium

applies that are taken incidental to

fishing for species other than those to

which the moratorium applies, except

as provided by regulations issued under

61118 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Rules and Regulations

subsection (d) of this section; (5) refuse

to permit any officer authorized to

enforce the provisions of this chapter to

board a fishing vessel subject to such

person’s control for purposes of

conducting any search or inspection in

connection with the enforcement of this

chapter; (6) forcibly assault, resist,

oppose, impede, intimidate, or interfere

with any such authorized officer in the

conduct of any search or inspection

under this chapter; (7) resist a lawful

arrest for any act prohibited by this

section; (8) ship, transport, offer for sale,

sell, purchase, import, or have custody,

control or possession of, any fish taken

or retained in violation of this chapter;

or (9) interfere with, delay, or prevent,

by any means, the apprehension or

arrest of another person, knowing that

such person has committed any act

prohibited by this section.’’

The measures in this rule, which are

necessary to implement section 806, are:

(1) a prohibition on the possession of

horseshoe crabs in Virginia waters

regardless of where they are caught, and

(2) a prohibition on landing horseshoe

crabs in Virginia regardless of where

they are caught. These measures are

necessary to implement section 806,

because they enable the effective

enforcement of the statutory

prohibitions on fishing for horseshoe

crabs within Virginia waters and on

landing and possessing horseshoe crabs

caught in violation of the moratorium.

Because enforcement agents enforcing

the moratorium in Virginia waters

would be unable to determine whether

a horseshoe crab was caught in Virginia

waters or in the EEZ and brought into

Virginia waters, it is necessary to

prohibit the possession of any horseshoe

crabs in Virginia waters and the landing

of horseshoe crabs in Virginia,

regardless of where they were caught.

If the Commonwealth of Virginia

implements and enforces measures

bringing them into compliance, the

Secretary will publish an appropriate

announcement in the Federal Register

rescinding the moratorium and this rule

with respect to the Commonwealth of

Virginia.

The agency is implementing the

moratorium immediately because

Virginia most likely has already

exceeded its quota. Landings data from

1999 show that 152,495 horseshoe crabs

– the equivalent of Virginia’s quota for

year 2000 under Addendum 1 – were

landed by the first week in May 1999.

Assuming the same rate of landings

applies in 2000 as in 1999, Virginia has

most likely landed more horseshoe

crabs than its allocation under

Addendum 1 by this time. Further, in

anticipation of the declaration of a

moratorium on fishing for horseshoe

crabs in Virginia waters, fishermen may

have increased horseshoe crab landings

in Virginia over the past couple months

since the Commission voted to find

Virginia out of compliance. As a result,

there is reason to believe that the

horseshoe crab landings rate in 2000 is

higher than it was in 1999.

Classification

This declaration of a moratorium and

rule are consistent with section 806 of

the Atlantic Coastal Fisheries

Cooperative Management Act.

The Assistant Administrator for

Fisheries, NOAA (AA), finds that

providing prior public notice and

opportunity for comment is contrary to

the public interest. Providing prior

notice and opportunity for comment

would be contrary to the public interest,

because Virginia most likely has already

exceeded its quota. Landings data from

1999 show that 152,495 horseshoe crabs

– the equivalent of Virginia’s quota for

year 2000 under Addendum 1 – were

landed by the first week in May 1999.

Assuming the same rate of landings

applies in 2000 as in 1999, Virginia has

most likely landed more horseshoe

crabs than its allocation under

Addendum 1 by this time. Further, in

anticipation of the declaration of a

moratorium on fishing for horseshoe

crabs in Virginia waters, fishermen may

have increased horseshoe crab landings

in Virginia over the past couple months

since the Commission voted to find

Virginia out of compliance. As a result,

there is reason to believe that the

horseshoe crab landings rate in 2000 is

higher than it was in 1999. Given the

fact that Virginia most likely has landed

its horseshoe crab quota already,

providing prior notice and opportunity

for comment would be contrary to the

public interest because it would allow

Virginia to continue to land more

horseshoe crabs than what should be its

quota under Addendum 1, thereby

frustrating achievement of conservation

goals in Addendum 1. Therefore, the

AA, under 5 U.S.C. 553(b)(B), finds that

good cause exists to waive the

requirement for prior notice and

opportunity for comment.

Because Virginia most likely has

already landed the equivalent number of

horseshoe crabs as its quota under

Addendum 1, given last year’s landing

rate, the AA finds that it is contrary to

the public interest to delay for 30 days

the effectiveness of this moratorium and

this rule. Therefore, the AA, under 5

U.S.C. 553(d)(3), finds that good cause

exists not to delay for 30 days the

effective date of this rule. However,

because fishermen need time to return

to port or leave Virginia waters if they

have horseshoe crabs on board, the AA

is delaying the effectiveness of the

moratorium and this rule until October

23, 2000.

Because prior notice and opportunity

for public comment are not required for

this rule by 5 U.S.C. 553, or any other

law, the analytical requirements of the

Regulatory Flexibility Act, 5 U.S.C. 601

et seq., are inapplicable.

Federalism Summary Impact Statement

The Act does not explicitly preempt

state law. Rather, section 806 of the Act

provides clear evidence that Congress

intended the Secretary to have the

authority to preempt state law. That

authority has been delegated from the

Secretary to the NMFS. NMFS has met

the special requirements for preemption

under section 4 of Executive Order

13132. The agency, in declaring a

moratorium on fishing for horseshoe

crabs and issuing this interim final rule,

has restricted the preemption of state

law to the minimum level necessary to

achieve the objectives of the statute. As

described in the following text, NMFS

notified the Commonwealth of Virginia

of the possibility of a moratorium and

met with state officials to discuss the

issues involved.

The AA wrote to the Governor of

Virginia notifying him of the

Commission’s non-compliance

determination, and the possibility that a

moratorium may be declared, and

offering him an opportunity to meet and

present comments on these issues. In

response, the Virginia Secretary of

Natural Resources requested a meeting

with the Secretary. On July 3, 2000

Virginia’s representatives met with

Deputy Secretary Robert Mallett and

NOAA personnel.

Virginia representatives stated that

the Commonwealth is managing the

horseshoe crab fishery responsibly and

noted that Virginia has implemented a

number of strong conservation

regulations on horseshoe crabs within

its waters. They stated that the quota

reduction required by Addendum 1 to

the Commission’s ISFMP for horseshoe

crabs could not be implemented by the

Virginia Marine Resources Commission

(VMRC), because it did not meet

Virginia’s standards on preventing

overfishing, achieving optimum yield,

using the best scientific and biological

information, managing interrelated

stocks, and allocating fishing privileges

among user groups with which VMRC’s

fisheries regulations must be consistent.

They submitted a memorandum from

VMRC stating that it could not ignore

the mandates of Virginia law and

implement a quota that may negatively

Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Rules and Regulations 61119

affect their whelk/conch (whelk)

fishery.

Virginia’s representatives further

stated that the state legislature could act

to implement the quota, but it is out of

session until January 2001. They also

noted that VMRC is in the process of

requiring that bait bags be used in the

Virginia whelk fishery and that the bait

bag requirement should cut Virginia’s

need for horseshoe crabs in half. They

also suggested that once the bait bag

regulation goes in place, and if the

Commission allowed unused horseshoe

crab quota from other states to be

transferred to Virginia, these actions

should meet Virginia’s bait needs

without Virginia taking more than its

Commission-allotted quota.

The Virginia representatives further

said that under the ISFMP, Virginia is

the only state to experience what it

believes to be severe economic impact.

Virginia has the market for horseshoe

crab, which is used as bait in the

Virginia eel and whelk/conch fisheries.

Bait for these fisheries was shipped into

Virginia, but since other states have

restricted landings, Virginia’s horseshoe

crab landings have gone up. Virginia

representatives felt that the state should

not be found out of compliance. But if

it is found out of compliance, it should

be allowed time for the state legislature

to act. Alternatively, Virginia believes

that the moratorium should not go into

effective until the entire coastwide

quota for the ISFMP is exceeded.

On July 11, the AA informed Virginia

that NMFS agrees with the Commission

that Virginia is not in compliance with

the ISFMP, and found that the measures

Virginia has failed to implement for

horseshoe crab management are

necessary for conservation. In order to

come back into compliance, Virginia

must take action to reduce its

commercial horseshoe crab fishery in

line with the ISFMP. In response to

Virginia’s comments about the timing of

a moratorium and the pending

implementation of further horseshoe

regulations by Virginia, and in light of

the amount of horseshoe crabs most

likely already landed in Virginia over its

Addendum 1 quota, NMFS believes it is

inadvisable to wait for the state

legislature to address the issue in 2001

in a regular session. Also, any

difficulties Virginia faces in light of

Virginia State law and legislative

scheduling do not override the Federal

government’s responsibility to

implement Federal law. If Virginia is

found in compliance by October 23,

2000, the moratorium and this rule will

be rescinded. If Virginia is found in

compliance after that date, the

moratorium will be lifted and the rule

repealed.

Coastal Zone Management Act (CZMA)

Substantive Considerations

The CZMA requires that ‘‘[e]ach

Federal agency activity within or

outside the coastal zone that affects any

land or water use or natural resource of

the coastal zone shall be carried out in

a manner which is consistent to the

maximum extent practicable with the

enforceable policies of approved State

management programs.’’ (16 U.S.C.

1456(c)(1)(A)). NMFS reviewed the list

of policies contained in Executive Order

23 (1998) on the Virginia Coastal

Resources Management Program, the

United States Department of Commerce

Final Environmental Impact Statement

and the Virginia Coastal Resources

Management Program (reprinted in

1994), a summary of the regulatory

programs that comprise Virginia’s

coastal program, which included the

Virginia Code citations for the legal

authorities.

According to Chapter III of the United

States Department of Commerce Final

Environmental Impact Statement and

the Virginia Coastal Resources

Management Program, dated July 1985

and reprinted in 1994, the Fisheries

Management Regulatory Program, which

is part of Virginia’s coastal management

program, contains the following

applicable policy and citation:

It shall be the goal of fisheries management

within the Commonwealth of Virginia to

conserve and enhance finfish and shellfish

resources, and to preserve and promote both

commercial and recreational fisheries, and,

thereby, to maximize food production and

recreational opportunities. The marine

resources of the Commonwealth shall be

managed for their maximum benefit and

long-term use by present and future

generations. The fishery management plans

prepared and implemented according to law

shall also have as a goal the preservation of

the Commonwealth’s exclusive right to

manage the fisheries within its territorial

jurisdiction.

Fishery management shall be based on the

best scientific, economic, biological, and

sociological information available, shall be

responsive to the needs of interested and

affected citizens, shall promote efficiency in

the utilization of the resources, and shall

draw upon all available capabilities in

carrying out research, administration,

management, and enforcement. (§ 28.1-23.1).

United States Department of

Commerce Final Environmental Impact

Statement and the Virginia Coastal

Resources Management Program,

Chapter III, July 1985, reprinted in 1994,

at III-2. This policy was certified by the

Attorney General’s Office of Virginia as

being enforceable. However, this policy

appeared at Virginia Code §28.1-23.1,

which was repealed in 1992.

Nevertheless, NMFS finds that the

Federal moratorium action is consistent

to the maximum extent practicable with

the enforceable policies of Virginia’s

approved coastal zone program. The Act

states that upon finding that (1) a State

has failed to implement and enforce a

coastal fishery management plan and (2)

the measures the State has failed to

implement and enforce are necessary for

the conservation of the fishery in

question, the Secretary must declare a

moratorium on fishing in the fishery in

question. (16 U.S.C. 1506(c).) Once the

factual findings are made, the Secretary

does not have the discretion to decline

to declare a moratorium. Nor does he

have the discretion to modify the acts

listed in §5106(e) that are prohibited

during a moratorium. The Secretary

does have the discretion to issue

regulations necessary to implement the

moratorium, and in this case, he has

chosen to exercise that discretion.

However, these two regulations make

the moratorium enforceable; without

them the declaration of a moratorium

effectively would be meaningless, given

that most horseshoe crabs landed in

Virginia are caught outside of Virginia

waters. According to the CZMA

regulations, ‘‘consistent to the

maximum extent practicable’’ describes

the requirement for Federal activities

affecting the coastal zone of States with

approved management programs to be

‘‘fully consistent with such programs

unless compliance is prohibited based

on the requirements of existing law

applicable to the Federal agency’s

operations.’’ (15 CFR §930.32(a).)

Because the Secretary lacks discretion

under the Act in declaring a moratorium

and identifying the main prohibited acts

during the moratorium, the Secretary’s

action is consistent to the maximum

extent practicable with Virginia’s

approved coastal management program.

To the extent the Secretary’s action is

inconsistent with the enforceable

policies of Virginia’s approved coastal

zone program, full consistency is

prohibited by the requirements of the

Act.

Even if the requirements of the Act

did not prohibit consistency with the

enforceable policies of Virginia’s

approved coastal management program,

and assuming the policy formerly at

Virginia Code §28.1-23.1 is an

enforceable policy of Virginia’s

approved coastal management program,

while also noting the standards for

fishery management in Virginia Code

§28.2-203, NMFS determines that this

action is consistent to the maximum

extent practicable. The goal of this

61120 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Rules and Regulations

action is to support Addendum 1 to the

Commission’s ISFMP for horseshoe

crab, which addresses concerns about

localized depletion of horseshoe crabs

by conserving and enhancing the

horseshoe crab resource through a state

by state quota system. Virginia is a

participating member of the

Commission, which acts under the

authority of the Act, and has full

knowledge of the moratorium provision

in that statute. Therefore, this

moratorium action is consistent with

Virginia’s desire to preserve the

Commonwealth’s exclusive right to

manage fisheries within its jurisdiction

to the same extent to which Virginia has

retained such a right in light of its

voluntary participation in the

Commission.

While horseshoe crabs are neither

finfish nor shellfish, but arthropods

closely related to arachnids, they are a

marine organism for which there is a

fishery. NMFS’ support of Addendum 1

through this non-allocative moratorium

action is designed to prevent overfishing

and assure achievement of optimum

yield for a variety of user groups, which

include the medical industry and

commercial fishermen. The best

available scientific information suggests

that the horseshoe crab population is at

risk of decline. If the population is in

decline, the Commission’s ability to

restore, rebuild, and maintain the

population to assure the availability of

horseshoe crabs on a long-term basis is

compromised, especially in light of the

fact that horseshoe crabs are extremely

vulnerable to overexploitation. They are

easily harvested and breed only once a

year after reaching maturity at 10 years

of age. Furthermore, all states in the

Delaware Bay area – New Jersey,

Maryland, Pennsylvania, and Delaware

– have reduced horseshoe crab landings

in line with Addendum 1, yet Virginia

has not. As a result, the fishery has

merely shifted landings to Virginia,

thereby negating any conservation

benefits of the other states’ reductions in

allowable landings.

Landings data from 1999 show that

152,495 horseshoe crabs the equivalent

of Virginia’s quota for year 2000 under

Addendum 1 - were landed by the first

week in May 1999. Assuming the same

rate of landings applies in 2000 as in

1999, Virginia has most likely landed

more horseshoe crabs than its allocation

under Addendum 1 by this time.

Therefore, this moratorium action,

designed to support and encourage

implementation of Addendum 1, is

necessary to allow the Commission to

assure the availability of horseshoe

crabs for present and future generations,

including commercial fishermen,

through further study and management,

rather than risk depletion by

overfishing.

A recreational fishery for horseshoe

crabs does not exist. Yet, by issuing

regulations regarding possession and

landing of horseshoe crabs regardless of

where they are harvested, NMFS has

taken into account the variation in

Virginia’s horseshoe crab fishery as it is

prosecuted in both Virginia waters and

the exclusive economic zone (EEZ). The

acts prohibited during the moratorium

are defined by the Act; therefore, NMFS

cannot reduce the burden on fishermen.

The regulations NMFS is issuing

pursuant to 16 U.S.C. 5106(d) are the

minimum necessary to implement the

moratorium, and still allow horseshoe

crabs to be harvested and used by

Virginia’s whelk fishermen in the EEZ.

Therefore, NMFS has minimized the

regulatory burden on fishermen where

practicable.

Procedural Considerations

For the following legal and factual

reasons, NMFS is proceeding with the

declaration of the moratorium and

issuance of regulations necessary to

implement the moratorium prior to the

end of the 90-day CZMA time period.

First, the Act states in section 804 that

‘‘the [Atlantic States Marine Fisheries]

Commission shall prepare and adopt

coastal fishery management plans to

provide for the conservation of coastal

fishery resources,’’ and mandates in

section 806 that the Secretary enforce

such conservation efforts by declaring a

moratorium on a fishery upon finding

that a state has failed to implement and

enforce measures in the applicable

coastal fishery management plan that

are necessary for conservation.

‘‘Conservation’’ is defined in the Act as

‘‘the restoring, rebuilding, and

maintaining of any coastal fishery

resource and the marine environment,

in order to assure the availability of

coastal fishery resources on a long-term

basis.’’ (Section 802(4).) The best

available scientific information suggests

that the horseshoe crab population is at

risk of decline. If the population is in

decline, the Commission’s ability to

restore, rebuild, and maintain the

population to assure the availability of

horseshoe crabs on a long-term basis is

compromised, especially in light of the

fact that horseshoe crabs are extremely

vulnerable to overexploitation. They are

easily harvested and breed only once a

year after reaching maturity at 10 years

of age. Furthermore, all states in the

Delaware Bay area – New Jersey,

Maryland, Pennsylvania, and Delaware

– have reduced horseshoe crab landings

in line with Addendum 1 to the

Horseshoe Crab Plan, yet Virginia has

not. As a result, the fishery has merely

shifted landings to Virginia, thereby

negating any conservation benefits of

the other states’ reductions in allowable

landings.

In Section 802(a) of the Act, Congress

found:

(3) Because no single governmental entity

has exclusive management authority for

Atlantic coastal fishery resources, harvesting

of such resources [is] frequently subject to

disparate, inconsistent, and intermittent State

and Federal regulation that has been

detrimental to the conservation and

sustainable use of such resources and to the

interests of fishermen and the Nation as a

whole.

(4) The responsibility for managing

Atlantic coastal fisheries rests with the

States, which carry out a cooperative

program of fishery oversight and

management through the Atlantic States

Marine Fisheries Commission. It is the

responsibility of the Federal Government to

support such cooperative interstate

management of coastal fishery resources.

(5) The failure by one or more Atlantic

States to fully implement a coastal fishery

management plan can affect the status of

Atlantic coastal fisheries, and can discourage

other States from fully implementing coastal

fishery management plans.

(6) It is in the national interest to provide

for more effective Atlantic State fishery

resource conservation and management.

The purpose of the Act as stated in

Section 802(b) ‘‘is to support and

encourage the development,

implementation, and enforcement of

effective interstate conservation and

management Atlantic coastal fishery

resources.’’

Given these findings and purposes,

Congress clearly intended to address the

type of situation presented by Virginia’s

refusal to implement and enforce

Addendum 1 to the Commission’s

ISFMP for horseshoe crab. In the Act,

Congress established procedures for

quick action regarding the declaration of

a Federal moratorium to support and

encourage the development,

implementation, and enforcement of

effective interstate conservation and

management of Atlantic coastal fishery

resources. This interpretation is

supported by the plain language of

section 805, which allows the

Commission only 10 working days to

notify the Secretary that a state is not in

compliance with a coastal fishery

management plan; and by section 806,

which allows the Secretary only 30 days

to solicit and consider comments by the

state and fishery management councils,

make an independent determination of

whether the State is in compliance and,

if not, determine whether the measures

the state has failed to implement and

enforce are necessary for conservation.

Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Rules and Regulations 61121

Furthermore, section 806 also states that

the Secretary must implement the

moratorium within 6 months after its

declaration. While the Act does not

explicitly state a limit on the length of

time that may elapse between the

Secretary’s finding and his declaration

of the moratorium, NMFS believes,

based on the language of sections 805

and 806, that that time period must be

as short as possible.

Furthermore, landings data from 1999

show that 152,495 horseshoe crabs – the

equivalent of Virginia’s quota for year

2000 under Addendum 1 – were landed

by the first week in May 1999.

Assuming the same rate of landings

applies in 2000 as in 1999, Virginia has

most likely landed more horseshoe

crabs than its allocation under

Addendum 1 by this time, further

supporting implementation of a

moratorium without further delay.

Because of these legal and factual

reasons, and the need to promote the

conservation of the resource, NMFS’

action is consistent to the maximum

extent practicable with the Virginia

Coastal Management Program under 15

CFR 930.32(a). Moreover, NMFS is

authorized to act prior to the end of the

CZMA statutory and regulatory time

periods pursuant to 15 CFR 930.32(b),

otherwise NMFS would fail to meet its

statutory responsibilities.

The interim final rule has been

determined to be significant for

purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 697

Fisheries, Fishing, Intergovernmental

relations.

Dated: October 10, 2000.

William T. Hogarth,

Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service.

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

1. The authority citation for 50 CFR

part 697 continues to read as follows:

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

2. In § 697.2, the definition for

‘‘Horseshoe crab’’ is added in

alphabetical order to read as follows:

§ 697.2 Definitions.

* * * * *

Horseshoe crab means members of

stocks or populations of the species

Limulus polyphemus.

* * * * *

3. In § 697.7, paragraph (e) is added

to read as follows:

§ 697.7 Prohibitions.

* * * * *

(e)Atlantic Coast horseshoe crab

fishery. In addition to the prohibitions

set forth in § 600.725 of this chapter and

16 U.S.C. 5106(e), it is unlawful for any

person to do any of the following:

(1) Possess any horseshoe crabs in

Virginia waters, regardless of where

they were harvested.

(2) Land any horseshoe crabs in

Virginia, regardless of where they were

harvested.

[FR Doc. 00–26499 Filed 10–11–00; 4:11 pm]

BILLING CODE 3510–22–S