# American Lobster Fishery; Removal of Regulations

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A96-7319

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** March 27, 1996
- **Citation:** 61 FR 13478

## Text

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.

-----------------------------------------------------------------------

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A96-7319. Public record. Not legal advice.