[Federal Register Volume 66, Number 44 (Tuesday, March 6, 2001)]
[Rules and Regulations]
[Pages 13443-13446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-5380]


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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.

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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lobster before that date, the moratorium will be withdrawn.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 Non-compliance

    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,

[[Page 13444]]

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 Mid-Atlantic 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

[[Page 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 non-trap 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 non-trap 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 non-trap 
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

[[Page 13446]]

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]
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