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[Federal Register Volume 65, Number 200 (Monday, October 16, 2000)]
[Rules and Regulations]
[Pages 61116-61121]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-26499]

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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.

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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

[[Page 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

[[Page 61118]]

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

[[Page 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. (Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 28.2-203, NMFS determines that this action is 
consistent to the maximum extent practicable. The goal of this

[[Page 61120]]

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.

[[Page 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 Sec.  697.2, the definition for ``Horseshoe crab'' is added 
in alphabetical order to read as follows:

Sec. 697.2  Definitions.

* * * * *
    Horseshoe crab means members of stocks or populations of the 
species Limulus polyphemus.
* * * * *

    3. In Sec.  697.7, paragraph (e) is added to read as follows:

Sec. 697.7  Prohibitions.

* * * * *
    (e)Atlantic Coast horseshoe crab fishery. In addition to the 
prohibitions set forth in Sec.  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
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