American Lobster Fishery; Removal of Regulations

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 649

[Docket No. 960315082-6082-01; I.D. 031296C]

RIN 0648-XX55

American Lobster Fishery; Removal of Regulations

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS announces its initial determination to withdraw approval

of the Fishery Management Plan for the American Lobster Fishery (FMP),

and proposes to remove the regulations implementing the FMP. Withdrawal

of FMP approval appears necessary, because changed circumstances have

called into question whether this FMP is consistent with the national

standards of the Magnuson Fishery Conservation and Management Act

(Magnuson Act). The intended effect of this action is to ensure that

Federal management of the American lobster fishery more closely

complies with state-administered programs.

DATES: Comments on the proposed rule must be received on or before May

13, 1996.

ADDRESSES: Comments on the proposed rule should be sent to Dr. Andrew

A. Rosenberg, Regional Director, Northeast Region, NMFS, One Blackburn

Drive, Gloucester, MA 01930-3799.

Copies of the Environmental Assessment (EA) supporting this action

and the regulatory impact review (RIR) are available from the same

address.

FOR FURTHER INFORMATION CONTACT: Paul H. Jones, Fishery Policy Analyst,

508-281-9273.

SUPPLEMENTARY INFORMATION:

The subject FMP, prepared by the New England Fishery Management

Council (Council), was approved and implemented in 1983. Implementing

regulations are found at 50 CFR part 649. The FMP has been amended

several times since implementation, most recently by Amendment 5. The

purpose of Amendment 5 is to prevent overfishing through adoption of a

stock rebuilding program in the exclusive economic zone (EEZ) to be

developed by effort management teams (EMTs) to enhance the existing

regulations, including those implemented by the individual coastal

states and the Atlantic States Marine Fisheries Commission (ASMFC).

Amendment 5 has not yet achieved this objective and on September 18,

1995 (60 FR 48086), NMFS published an advance notice of proposed

rulemaking (ANPR) that requested comments from the public on options

for lobster management. This proposed rule discusses the comments

received as a result of the ANPR and the other circumstances that give

rise to this proposed action to withdraw the FMP.

These options were discussed in the ANPR: Whether to withdraw the

FMP and develop regulations under the Atlantic Coastal Fisheries

Cooperative Management Act (ACFCMA), or proceed with development of a

Secretarial fishery management plan, or some other option. NMFS stated

that it wished to retain as many current measures as possible under the

law, and especially desired to consider those measures proposed by the

group of industry, government, and other non-government participants

who constituted the EMTs. Written responses were received on the ANPR

from the Council, the ASMFC, two state fishery agencies, three fishing

associations, and one individual. Two comments favored withdrawal of

the FMP and the development of regulations under the ACFCMA. Five

comments requested that NMFS keep the current FMP in place while the

ASMFC develops an amendment to its lobster coastal management plan

(CMP). The one remaining comment was in favor of Secretarial action for

the offshore lobster fishery.

There are several reasons to withdraw this FMP. In accordance with

the goals of the initiative to reform the Federal regulatory system

announced by the President on February 21, 1995, the lobster FMP can be

eliminated without compromising resource management and conservation

objectives. The American lobster fishery is prosecuted primarily in

state waters from Maine to Virginia and these states have implemented

protective measures under state law in addition to the ASMFC CMP. Final

withdrawal of the FMP and its implementing regulations would only occur

upon completion of an effective state management program, most likely

developed by the ASMFC. The primary objective of the FMP has been to

serve as a vehicle for coordinated management of the American lobster

fishery throughout its range. The FMP was prepared to support the

management efforts of the states. However, the need for a Magnuson Act

fishery management plan for lobster is now in question, given the

[[Page 13479]]

compliance authority included in the ACFCMA.

In addition, NMFS can no longer ensure that the FMP is, or can be

amended to be, consistent with National Standard 1, which requires

implementation of conservation and management measures to prevent

overfishing. Fishing mortality for American lobster is occurring at a

rate in excess of that in the overfishing definition, and Amendment 5

has not fostered the necessary cooperation between the Atlantic coastal

states, the Council, and the ASMFC to address the problem. Withdrawal

would allow the ASMFC to address the overfished condition of the stocks

unhindered by the Council process.

Withdrawal would also ensure consistency with National Standard 7,

which requires that conservation and management measures shall, where

practicable, minimize costs and avoid unnecessary duplication. Prior to

the implementation of the ACFCMA, interstate plans lacked effective

compliance authority and states relied upon Federal regulations under

the Magnuson Act to provide cohesiveness and compliance. This is no

longer a problem, because the ACFCMA, as recently amended, now provides

a mechanism for state compliance to coastal management plans

implemented by the ASMFC and, therefore, is a more appropriate vehicle

to support the effective implementation of these plans. As a result, in

some instances where a coastal plan exists or is proposed, the Magnuson

Act may be an unnecessary duplication.

Withdrawal of the FMP, provided that complementary Federal

regulations are issued by NMFS under the ACFCMA, is consistent with the

formal comments submitted by the ASMFC during the comment period on the

ANPR. During the comment period, the ASMFC requested a status quo

approach until the states, through ASMFC, determine where lobster

management should go from here by amending its CMP for American

lobster. The Maine Department of Marine Resources commented that

management of lobster should transfer from the Council to the ASMFC

immediately. The Connecticut Department of Environmental Protection

requested that the FMP remain in place to allow the ASMFC time to

develop its CMP. Timely withdrawal of this FMP and replacement by a

state-administered CMP is consistent with the requests of these

agencies.

Therefore, NMFS is publishing this proposed rule stating its intent

to withdraw the FMP and remove its implementing regulations. Final

action would be contingent upon appropriate action by the ASMFC that

would allow NMFS to issue effective Federal regulations under the

ACFCMA, as necessary.

Timing the withdrawal to coincide with implementation of an ASMFC

CMP is necessary, because a lapse in the Federal regulations would

suspend conservation measures in the EEZ. For instance, the Federal

minimum size limit, the protective measures for egg-bearing lobsters,

and the limited access permit program would lapse, jeopardizing

conservation and canceling roughly 3,000 Federal limited access

moratorium permits. The administrative and resource costs that would

result from a lapse in the regulations would exceed the benefits of

this action.

Amendment 5 to the FMP was approved on the basis that it

established a participative process to reduce effort and prevent

overfishing. As stated in the ANPR, NMFS supports the EMT concept and

the prevention of overfishing objective of Amendment 5 and expects that

the state management plan initiative will be guided by the national

standards and guidelines to ensure effective conservation and

management of the American lobster resource.

Classification

This proposed rule has been determined to be not significant for

purposes of E.O. 12866.

At this time, the Assistant Administrator for Fisheries (AA) has

not determined that the action this rule would implement is consistent

with the national standards, other provisions of the Magnuson Act, and

other applicable law. The AA, in making that determination, will take

into account the data, views, and comments received during the comment

period.

NMFS prepared a draft EA for this amendment that discusses the

impact on the environment as a result of this rule. A copy of the draft

EA may be obtained from NMFS (see ADDRESSES).

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce has certified to the Chief Counsel for Advocacy

of the Small Business Administration that this proposed rule, if

adopted, would not have a significant economic impact on a substantial

number of small entities. As a result, a regulatory flexibility

analysis was not prepared. This rule has no direct effect on the stock

of lobster or the lobster fishery, since the management measures that

would be removed via this action are expected to be implemented under

the ACFCMA before withdrawal is complete. If NMFS intends to alter,

add, or eliminate any regulations implemented under the FMP under the

authority of the ACFCMA, an initial regulatory flexibility analysis

will be done for those specific regulations at that time.

This rule does not contain a collection-of-information requirement

for the purposes of the Paperwork Reduction Act.

This proposed rule does not contain policies with federalism

implications sufficient to warrant preparation of a federalism

assessment under E.O. 12612.

List of Subjects in 50 CFR Part 649

Fisheries.

Dated: March 20, 1996.

Gary Matlock,

Program Management Officer, National Marine Fisheries Service.

For the reasons set out in the preamble, under the authority of 16

U.S.C. 1801 et seq., part 649 is proposed to be removed.

[FR Doc. 96-7319 Filed 3-26-96; 8:45 am]

BILLING CODE 3510-22-F