Horseshoe Crab; Interstate Fishery Management Plans
[Federal Register: October 16, 2000 (Volume 65, Number 200)]
[Rules and Regulations]
[Page 61116-61121]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16oc00-29]
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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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