Federal Register / Vol. 66, No. 44 / Tuesday, March 6, 2001 / Rules and Regulations 13443

Authority: 16 U.S.C. 971 et seq.; 16 U.S.C.

1801 et seq.

§ 635.20 [Amended]

2. In § 635.20, paragraph (e)(1) is

suspended effective from March 6, 2001

through September 4, 2001.

3. In § 635.27, paragraphs (b)(1)(i), (ii),

and (iv)(A) and (C) are suspended and

paragraphs (b)(1)(v) and (vi) are added,

effective from March 6, 2001 through

September 4, 2001, to read as follows:

§ 635.27 Quotas.

* * * * *

(b) * * *

(1) * * *

(v) Large coastal and small coastal

sharks. The annual commercial quota

for large coastal sharks is 1,285 mt dw,

divided between two equal semiannual

seasons, January 1 through June 30, and

July 1 through December 31. The quota

for each semiannual large coastal shark

season is 642.5 mt dw. The length of

each large coastal shark season will be

determined based on the projected catch

rates, available quota, and other relevant

factors. NMFS will file with the Office

of the Federal Register for publication in

the Federal Register notification of the

length of each season for large coastal

sharks at least 30 days prior to the

beginning of the season. The annual

commercial quota for small coastal

sharks is 1,760 mt dw, divided between

two equal semiannual seasons, January

1 through June 30, and July 1 through

December 31. The quota for each

semiannual small coastal shark season

is 880 mt dw.

(vi) NMFS will adjust the next year’s

semiannual quota for pelagic sharks to

reflect actual landings during any

semiannual period. For example, a

commercial quota underharvest or

overharvest in the season that begins

January 1 will result in an equivalent

increase or decrease in the following

year’s quota for the season that begins

January 1, provided that the annual

quota is not exceeded. NMFS will file

with the Office of the Federal Register

for publication in the Federal Register

notification of any adjustment at least

30 days prior to the start of the next

fishing season.

* * * * *

4. In § 635.28, paragraph (b)(1) is

suspended and paragraph (b)(4) is

added, effective from March 6, 2001

through September 4, 2001, to read as

follows:

§ 635.28 Closures.

(b) * * *

(4) The commercial fishery for large

coastal sharks will remain open for

fixed semiannual fishing seasons, as

specified at § 635.27(b)(1)(v). From the

effective date and time of a season

closure until additional quota becomes

available, the fishery for large coastal

sharks is closed, and sharks of that

species group may not be retained on

board a fishing vessel issued a

commercial permit pursuant to § 635.4

* * * * *

[FR Doc. 01–5435 Filed 3–5–01; 8:45 am]

BILLING CODE 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 697

[Docket No. 010165024-1024-10; I.D.

121500D]

RIN 0648-AO88

American Lobster; Interstate Fishery

Management Plans

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Notice of determination of

noncompliance; declaration of a

moratorium.

SUMMARY: In accordance with the

Atlantic Coastal Fisheries Cooperative

Management Act (Act), NMFS, upon a

delegation of authority from the

Secretary of Commerce (Secretary), has

determined that the State of Rhode

Island is not in compliance with

Amendment 3 to the Atlantic States

Marine Fisheries Commission’s

(Commission) Interstate Fishery

Management Plan (ISFMP) for American

Lobster, because the state has failed to

implement and enforce a measure that

is necessary for the conservation of

American lobster. Pursuant to the Act,

a Federal moratorium on fishing for

American lobster within Rhode Island

state waters is hereby declared and will

be effective on May 1, 2001. If Rhode

Island is found to be in compliance with

the ISFMP for American lobster before

that date, the moratorium will be

withdrawn. The purpose of this action

is to support and encourage

implementation and enforcement of the

Commission’s American Lobster ISFMP.

DATES: Effective May 1, 2001.

ADDRESSES: Copies of an Environmental

Assessment and Regulatory Impact

Review (EA/RIR) are available from the

Director, State, Federal and Constituent

Programs Office, NMFS, 1 Blackburn

Drive, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT:

Harry Mears, NMFS, Northeast Region,

978–281–9144.

SUPPLEMENTARY INFORMATION:

Background

The purpose of the Act is 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

must make a 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 and enforce 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. NMFS has been

delegated this decision-making

authority.

On November 6, 2000, the Secretary

received a letter from the Commission

prepared pursuant to section 806(b) of

the Act. The Commission’s letter stated

that the State of Rhode Island’s

American lobster regulations did not

meet the provisions of Amendment 3 to

the Commission’s ISFMP for American

lobster and, therefore, the Commission

found the State of Rhode Island out of

compliance with the ISFMP.

Commission Findings of Noncompliance

The Commission adopted

Amendment 3 to the ISFMP for

American Lobster in December 1997.

Under Amendment 3, states are required

to implement and enforce the nontrap

gear limit of no more than 100 lobsters

per day (based on a 24-hour period) up

to a maximum of 500 lobsters per trip,

13444 Federal Register / Vol. 66, No. 44 / Tuesday, March 6, 2001 / Rules and Regulations

for trips 5 days or longer. The

Commission found that the State of

Rhode Island did not implement and is

not enforcing this measure and,

therefore, is not in compliance with the

ISFMP for American Lobster.

NMFS Determination Regarding

Compliance by the State of Rhode

Island

NMFS met with representatives from

the State of Rhode Island on December

5, 2000, to receive comments on their

compliance status. Rhode Island

temporarily reinstated the non-trap gear

possession limit by emergency rule on

November 29, 2000. Under Rhode Island

law, regulations implemented by

emergency action expire after 120 days

unless replaced by a final rule.

Therefore, there is no guarantee that this

regulation will remain in effect after the

120-day period. On December 17, 2000,

based on a careful analysis of all

relevant information, including

comments from the State of Rhode

Island and the New England and MidAtlantic Fishery Management Councils,

NMFS determined that the State of

Rhode Island is not in compliance with

the Commission’s ISFMP for American

lobster. This determination is based on

Rhode Island’s failure to implement and

enforce on a permanent basis the

nontrap gear limit of no more than 100

lobsters per day (based on a 24-hour

period) up to a maximum of 500 lobsters

per trip, for trips 5 days or longer as

specified in Amendment 3.

Whether the Measure Is Necessary for

Conservation

On December 17, 2000, NMFS also

determined that implementation and

enforcement of the nontrap gear limit by

Rhode Island is necessary for the

conservation of the resource.

‘‘Conservation’’ is defined in ACFCMA

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 most recent stock

assessment (March 2000) indicates that

all three stocks of American lobster are

overfished. The stock assessment

reveals that the lobster landings are

comprised mainly of young lobsters that

have just recruited into the fishery and

have not had the opportunity to

reproduce before being harvested. If

states are not required to both

implement and enforce mandatory

measures of the ISFMP, the ability of the

plan to rebuild American lobster stocks

by meeting the necessary egg production

goals is compromised.

Unless Rhode Island permanently

implements and enforces the non-trap

limit, non-trap vessels licensed to fish

for lobster in Rhode Island state waters

will be able to land unlimited numbers

of lobsters. Uncontrolled harvest of

lobster taken by non-trap gear is

expected to result in elevated landings

beyond historical levels, thereby

resulting in higher fishing mortality,

counter to ISFMP objectives to end

overfishing of American lobster.

Therefore, Rhode Island’s

implementation of the non-trap gear

landing limit specified in Amendment 3

is necessary to allow the Commission to

assure the sustainability of the fishery

and long-term viability of the American

lobster resource.

Declaration of a Moratorium

On December 18, 2000, NMFS

notified the State of Rhode Island that

it was not in compliance with

Amendment 3 to the Commission’s

ISFMP for American lobsters, and that

the measure Rhode Island failed to

implement and enforce is necessary for

the conservation of American lobsters.

NMFS also indicated that it required

further time to analyze the timing and

impacts of the moratorium’s

implementation before declaring a

moratorium, as required by law. The Act

allows the effective date of the

moratorium to be delayed for up to 6

months from the date on which the

moratorium is declared. NMFS

completed an Environmental

Assessment and Regulatory Impact

Review (EA/RIR), which analyze the

impacts of various alternatives for the

implementation of a moratorium. 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 American

lobsters in Rhode Island waters. Since

Rhode Island has temporarily reinstated

the non-trap gear possession limit by

emergency rule on November 29, 2000,

which will be in effect until March 28,

2001, NMFS is delaying implementation

of the moratorium until May 1, 2001. If

the State of Rhode Island is not in

compliance with Amendment 3 to the

ISFMP for American lobster by that

date, a moratorium on fishing for

American lobster in Rhode Island state

waters will go into effect. If NMFS

determines that the State of Rhode

Island has complied with Amendment 3

to the ISFMP by May 1, 2000, NMFS

will issue an appropriate announcement

in the Federal Register rescinding the

moratorium with respect to the State of

Rhode Island. Delaying the effective

date of the moratorium until May 1,

2001, will allow Rhode Island time to

complete its legislative process to issue

permanent regulations implementing

the non-trap limit, and will provide the

Commission time to review the new

regulations for compliance. The delay

will not significantly diminish

American lobster conservation efforts

because the state has implemented the

non-trap possession limit as a temporary

measure effective until March 28, 2001.

The delay will not significantly impact

the American lobster resource for

several reasons. As indicated in the

March 2000 lobster stock assessment,

migrating lobsters move offshore in the

fall and winter and inshore during the

spring and summer. While lobsters are

in inshore waters in April, generally

they are inactive due to a variety of

factors, such as water temperature and

burrowing activity; therefore, they are

less likely to be caught. Furthermore,

those present in inshore waters are

likely to be below the minimum legal

size and cannot be retained. Total

landings of lobsters for the month of

April 1999, in Rhode Island State waters

accounted for 2.3 percent of the state’s

total lobster harvest, equivalent to

approximately 54,000 lbs (22.5 metric

tons). In comparison, monthly landings

from Rhode Island State waters from

May 1 through December 31 averaged

about 260,000 lbs (117.9 metric tons).

If the moratorium goes into effect,

NMFS will terminate it as soon as

possible upon determination that the

State has taken appropriate remedial

actions to bring it into compliance with

the the Commission’s ISFMP for

American lobster

The moratorium on fishing for

American lobster 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

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

to permit any officer authorized to

Federal Register / Vol. 66, No. 44 / Tuesday, March 6, 2001 / Rules and Regulations 13445

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.’’

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

impracticable and unnecessary.

Providing prior notice and opportunity

for comment would be impracticable,

because it would prevent the agency

from executing its functions under

section 806 of the Act in a timely

manner. Section 806 contemplates quick

action on the declaration of a

moratorium that would not be possible

if prior notice and an opportunity for

comment are provided. Furthermore,

providing prior notice and opportunity

for comment would be unnecessary

because it would serve no purpose. The

nature of a moratorium is described in

section 806 of the Act and, therefore,

cannot be modified in response to

public comments. Therefore, the AA,

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

cause exists to waive the requirement of

prior notice and opportunity for

comment.

Because prior notice and opportunity

for public comment are not required for

this action 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 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 American

lobsters in Rhode Island state waters has

restricted the preemption of state law to

the minimum level necessary to achieve

the objectives of the statute.

NMFS notified the Governor of Rhode

Island on November 13, 2000, 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, Rhode Island requested a

meeting with NMFS representatives.

This meeting occurred on December 5,

2000.

Rhode Island was found out of

compliance because on June 6, 2000,

Part 15.18 to the Rhode Island Marine

Fisheries Statutes and Regulations was

repealed by the Rhode Island Marine

Fisheries Council. This section imposed

a possession limit on the number of

lobsters that could be harvested by

commercial vessels using methods other

than pots or traps. As a result of the

repeal of this section, effective June 29,

2000, vessels permitted by the State of

Rhode Island to harvest lobster by a

method other than traps may land an

unlimited number of lobsters.

Consequently, the State of Rhode Island

has failed to implement and enforce the

required possession limit of 100 lobsters

per day/500 lobsters per trip for nontrap gear as mandated in the ISFMP for

American lobster.

Rhode Island representatives stated

that the non-trap possession limit was

temporarily reinstated by Rhode Island’s

Director of the Department of

Environmental Management (DEM) by

emergency action on November 29,

2000. In issuing the emergency action,

the Director stated that ‘‘...imminent

peril exists to the public health, safety

and welfare which requires the adoption

of the [non-trap gear lobster possession

limit] prior to notice of promulgation

and opportunity for public comment.

Specifically, I find that without the

adoption of the attached regulation, the

welfare of a significant portion of the

state’s commercial fishing industry and

their families, which rely upon

American lobster, would be

jeopardized.’’ The Director further states

in the emergency adoption of the

regulations,’’... Failure to take action at

this time would negatively affect the

numerous commercial fishing vessels,

which rely on American lobster and not

allow for the orderly development of the

fishery.’’ Rhode Island’s Administrative

Procedures Act allows measures

implemented by emergency action to be

effective for a period of 120 days;

accordingly, the state’s emergency

measures will expire March 28, 2001.

Rhode Island had informed both NMFS

and the Commission’s Lobster

Management Board (Board) of this

emergency action at the Board’s meeting

on November 30.

Rhode Island representatives also

stated that they did not agree with the

need for a non-trap gear lobster

possession limit, and that

implementation of the emergency action

should not be viewed as implicit

agreement with the need for the nontrap regulations by Rhode Island.

Further, NMFS was told that the Rhode

Island Marine Fisheries Council will

hold a hearing on the matter in February

to garner public comments, and will

decide then whether to continue the

emergency rule or let it expire.

Therefore, there is no guarantee that this

regulation will remain in effect after the

120 day period. Rhode Island intends to

ask its congressional delegation to meet

with NMFS officials in the near future

to further discuss this issue.

On December 18, 2000, the AA wrote

to the Governor of Rhode Island

notifying him that NMFS completed its

independent review and concurred with

the Commission’s findings that Rhode

Island was out of compliance, and that

the measure Rhode Island failed to

implement and enforce is necessary for

the conservation of the American lobster

fishery. NMFS indicated that it required

further time to analyze the timing and

impacts of the moratorium’s before

issuing a declaration of a moratorium, as

required by law. The Act allows the

effective date of the moratorium to be

delayed for up to 6 months from the

date on which the moratorium is

declared.

In a subsequent letter to the AA, the

Executive Director of the Commission

indicated that although the State of

Rhode Island was making an effort to

come into compliance by temporarily

reinstating the measure, the state will

not be in full compliance until the nontrap measure is permanently reinstated.

Consequently, the Executive Director

recommended delaying any potential

moratorium ‘‘to allow the state to

complete its regulatory process.’’

In response to Rhode Island’s

comments received during the

December 5, 2000, meeting and a

subsequent request by the Commission

to delay the moratorium to allow Rhode

Island time to complete its regulatory

process, NMFS, pursuant to section

806(c) of the Act, declares a Federal

moratorium on fishing for American

lobsters in Rhode Island state waters

effective May 1, 2001. If Rhode Island is

found in compliance with the

Commission’s ISFMP for American

13446 Federal Register / Vol. 66, No. 44 / Tuesday, March 6, 2001 / Rules and Regulations

lobster before that date, the moratorium

will be withdrawn. The delay until May

1 will allow Rhode Island time to

complete its legislative process to issue

permanent regulations implementing

the non-trap limit, and will provide the

Commission time to review the new

regulations for compliance.

This declaration of moratorium has

been determined to be significant for

purposes of Executive Order 12866.

Dated: February 28, 2001.

William T. Hogarth,

Acting Assistant Administrator for Fisheries,

National Marine Fisheries Service.

[FR Doc. 01–5380 Filed 3–5–01; 8:45 am]

BILLING CODE 3510–22–S