[Federal Register Volume 84, Number 248 (Friday, December 27, 2019)]
[Rules and Regulations]
[Pages 71329-71332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27834]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 697
RIN 0648-XV136
Atlantic Coastal Fisheries Cooperative Management Act Provisions;
Atlantic Menhaden Fishery
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notification of determination of non-compliance; declaration of
a moratorium.
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SUMMARY: In accordance with the Atlantic Coastal Fisheries Cooperative
Management Act (Atlantic Coastal Act), the Secretary of Commerce
(Secretary) has determined that the Commonwealth of Virginia has failed
to carry out its responsibilities under the Atlantic States Marine
Fisheries Commission's (Commission) Interstate Fishery Management Plan
(ISFMP) for Atlantic Menhaden and that the measure Virginia has failed
to implement and enforce is necessary for the conservation of the
Atlantic menhaden resource. This determination is consistent with the
findings of the Commission on October 31, 2019. Pursuant to the
Atlantic Coastal Act, a Federal moratorium on fishing for Atlantic
menhaden in Virginia state waters and possession and landing of
Atlantic menhaden harvested in Virginia State waters is hereby declared
and will be effective on June 17, 2020. The moratorium will be
terminated when the Commission notifies the Secretary that Virginia is
found to have come back into compliance with the Commission's ISFMP for
Atlantic menhaden.
DATES: June 17, 2020.
FOR FURTHER INFORMATION CONTACT: Derek Orner, Fishery Management
Specialist, (301) 427-8567, [email protected].
SUPPLEMENTARY INFORMATION:
Non-Compliance Statutory Background
The Atlantic Coastal Act, 16 U.S.C. 5101 et seq., sets forth a non-
compliance review and determination process that is triggered when the
Commission finds that a State has not implemented measures specified in
an ISFMP and refers that determination to the Secretary for review and
potential concurrence.
The Atlantic Coastal Act's non-compliance process involves two
stages of decision-making. In the first stage, the Secretary must make
two findings: (1) Whether the State in question has failed to carry out
its responsibility under the Commission ISFMP; and if so (2) whether
the measures that the State failed to implement and enforce are
necessary for the conservation of the fishery in question. These
initial findings must be made within 30 days after receipt of the
Commission's non-compliance referral and consequently, this first stage
of decision-making is referred to as the 30-Day Determination.
A positive 30-Day Determination triggers the second stage of
Atlantic
[[Page 71330]]
Coastal Act non-compliance decision-making, which occurs
contemporaneous with the first decision. That is, if the Secretary
determines non-compliance in the first stage, the Atlantic Coastal Act
mandates that a moratorium on fishing in State waters in the fishery in
question occur. The timing of the moratorium, however, is at the
discretion of the Secretary, so long as it is implemented within six
(6) months of the 30-Day Determination. In other words, although the
implementation of the moratorium is non-discretionary, the Secretary
has the discretion to decide when the moratorium will be implemented
subject to the Atlantic Coastal Act's six (6) month deadline.
Commission Referral of Non-Compliance
On October 31, 2019, the Commission found that the Commonwealth of
Virginia is out of compliance with the Commission's ISFMP for Atlantic
menhaden. Specifically, the Commission required Virginia to implement a
total allowable harvest from the Chesapeake Bay Reduction Fishery that
would not exceed 51,000 mt. Amendment 3 was approved in the fall 2017,
and was to be fully implemented by the Commonwealth of Virginia for the
2018 fishing season. Virginia, however, did not implement the
Commission's recommended 51,000 mt cap and instead maintained its pre-
existing 87,216 mt cap and in 2019, the Reduction Fishery exceeded the
Commission's Bay cap by approximately 15,000 mt (or about 30 percent).
The Virginia delegation to the Commission agreed it was out of
compliance and voted for a non-compliance finding at the Commission's
Atlantic Menhaden and Policy Boards as well as the Commission's
Business Section. On October 31, 2019, the Commission found the
Commonwealth of Virginia out of compliance for not fully and
effectively implementing and enforcing the Amendment 3 measures.
Agency Action in Response to Commission Non-Compliance Referral
The Commission forwarded its finding of their October 31st vote in
a formal non-compliance referral letter that the Secretary received
November 15, 2019. In response to receipt of this letter, the Secretary
began the Atlantic Coastal Act's 30-day determination clock. On
November 19, 2019, NMFS sent letters to the Commonwealth of Virginia,
the New England Fishery Management Council, Mid-Atlantic Fishery
Management Council, South Atlantic Fishery Management Council, the U.S.
Fish and Wildlife Service, and to the Commission, advising them of the
Atlantic Coastal Act's non-compliance process, inviting them to provide
commentary on the issues, and in the case of Virginia, inviting the
Commonwealth to meet with the agency to present its position in person
or provide written comments on the Comission's findings. NMFS also
advised the public of the referral in a Federal Register notice dated
November 29, 2019 (84 FR 65787).
On November 22, 2019, Matthew Strickler, Secretary Virginia Natural
Resources, other Virginia staff, and NMFS staff met via a conference
call. During this meeting, the Commonwealth of Virginia agreed that
Virginia was out of compliance and that it did not contest the
conservation necessity of the Commission's Atlantic menhaden measures.
Virginia described its legal and regulatory framework for its menhaden
fishery and confirmed its intent to pursue legislation to comply with
the measures identified in Amendment 3 as soon as feasible.
Specifically, Virginia representatives stated that the Atlantic
menhaden fishery is managed through the Virginia legislature, which
does not provide the Virginia Marine Resources Commission (VMRC) the
regulatory authority to manage menhaden fisheries.
The Secretary received numerous comments in response to the
referral of non-compliance. Omega Protein along with 6 members of the
Virginia legislature and one Congressman, and several others oppose the
non-compliance finding. Other stakeholders, including the Commission,
the Fishery Management Councils, Atlantic Coastal states, nine East
Coast Governors, recreational fishing groups, Non-Governmental
Organizations and numerous members of the public (~12,000 signatures),
strongly support a non-compliance finding due to the scientific
research supporting the importance of menhaden to the Bay ecosystem.
Agency's Findings
The Secretary's finding in this matter supports a positive 30-Day
Determination of non-compliance. Specifically, the facts and best
available science suggest both that Virginia did not fulfill its
responsibilities under the Commission's ISFMP and that the measures
that Virginia failed to implement are necessary to the conservation of
Atlantic menhaden. Virginia concurs that the involved measures are
necessary for conservation. Specifically, in voting itself out of
compliance three separate times at the Commission in October 2019,
Virginia admitted that failure to implement the measures would
jeopardize the conservation of Atlantic menhaden. Virginia also
admitted to such in its November 20, 2019 letter and during its
November 22, 2019 hearing with NMFS. NMFS' analysis also supports such
a finding.
Single Species: Recent studies investigating the contribution of
various nursery grounds along the Atlantic coast and their impacts to
the coastwide population structure of Atlantic menhaden have indicated
that the Chesapeake Bay is considered one of the most important nursery
areas for menhaden and contributes approximately 30 percent of new
recruits (age 1) to the coastal stock. The implementation of the
Chesapeake Bay cap does not limit the coastwide total allowable catch
of menhaden for the reduction fishery, but rather attempts to
distribute the reduction fishery's catch in order to protect the
important Bay nursery area. The science suggests that overharvesting
within Chesapeake Bay leads to the removal of smaller, younger age-
classes of menhaden that eventually migrate into the older, coastwide
population.
In addition, based on the current Commission-adopted benchmarks,
the Atlantic menhaden stock status is not overfished and overfishing is
not occurring. The stock is currently below the current fishing
mortality target and above the current fecundity (measure of
productivity) target. The stock is considered a unit stock for
management purposes and from this single-species perspective, there is
no major concern with total removals and the total Virginia or
coastwide quotas have not been exceeded.
Ecosystem Function: The Atlantic Coastal Act requires the Secretary
to consider whether the measures that the State failed to implement and
enforce are necessary for the conservation of the fishery in question.
The fishery in question is the Atlantic menhaden fishery. The statute
defines conservation as 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 (16
U.S.C. 5102(4)). Thus, in considering whether the measure is necessary
for the ``conservation of the fishery in question,'' the Secretary is
not limited solely to looking at whether the measure preserves the
biomass of menhaden but also whether the measure maintains the role of
menhaden in the marine environment. Menhaden play an important role as
a forage base for a number of other stocks, like striped
[[Page 71331]]
bass. Those other stocks are part of the marine environment for which
menhaden conservation, including the Bay cap, is directed.
In short, the Commission, its member states including Virginia,
found that the involved measure is necessary for the conservation of
Atlantic menhaden. The Secretary sees the measures Virginia has failed
to implement as necessary for the conservation of the menhaden
resource. The best available information shows that menhaden in the
Chesapeake Bay are an important component of the overall health of the
stock, and further that their role as forage for predator species in
the Chesapeake Bay is critical to the marine environment. Further, the
Secretary notes the degraded status of the Chesapeake Bay and the
Commission's efforts to do its part under its authority to ensure the
sustainability of the fisheries in the Chesapeake Bay, specifically by
conserving menhaden. Accordingly, the Commission is thus attempting to
maintain the menhaden forage base while its scientists study menhaden's
role in the degraded Bay ecosystem and develop ecological reference
points. The Secretary agrees with its logic in doing so.
The Atlantic Coastal Act requires that the Secretary declare a
moratorium when it finds that a state has failed to carry out its
responsibilities and that the measures it failed to implement are
necessary for conservation. The Secretary determines that the required
moratirum should begin on June 17, 2020. This moratorium would prohibit
fishing for Atlantic menhaden in Virginia State waters, and possession
of and landing of Atlantic menhaden harvested in Virginia state waters.
A June 17, 2020 implementation date represents the maximum allowed time
period to begin a moratorium under the Atlantic Coastal Act. The
Secretary analyzed the timing of potential moratoria and believes the
June 17, 2020 date is appropriate for two principal reasons. First,
although the involved measure is necessary for conservation, the
immediacy of that need is less critical given the 2020 fishing season
will not begin until spring 2020 and the 51,000 mt Bay cap has never
been reached, or even come close to being reached by mid-June. Second,
a June closure date will give Virginia the time necessary for its
legislature to bring these regulations back into compliance.
Moratorium Prohibitions
The Secretary declares that the moratorium shall be in effect
commencing June 17, 2020 and will be based upon the Atlantic Coastal
Act's moratorium prohibitions, 16 U.S.C. 5106(e). The moratorium shall
make it unlawful to do the following:
(1) Engage in fishing for menhaden within the waters of Virginia
(Note: under the Atlantic Coastal Act, the definition of ``fishing''
includes catching, taking or harvesting of fish);
(2) Land, attempt to land, or possess fish that are caught,
taken, or harvested in violation of the moratorium;
(3) 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;
(4) Refuse to permit any officer authorized to enforce the
provisions of this moratorium 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 moratorium;
(5) Forcibly assault, resist, oppose, impede, intimidate, or
interfere with any such authorized officer in the conduct of any
search or inspection under this moratorium;
(6) Resist a lawful arrest for any act prohibited by this
moratorium;
(7) Ship, transport, offer for sale, sell, purchase, import, or
have custody, control, or possession of, any fish taken or retained
in violation of this moratorium; or
(8) Interfere with, delay, or prevent, by any means, the
apprehension or arrest of another person, knowing that such other
person has committed any act prohibited by this moratorium.
This moratorium will apply to Atlantic menhaden as identified in
the Commission's ISFMP and would start June 17, 2020. When the
Commission notifies the Secretary that Virginia has come into
compliance, the Secretary shall immediately determine whether the
State is in compliance, and if so, shall terminate the moratorium.
Classification
This declaration of a moratorium is consistent with the Atlantic
Coastal Act at 16 U.S.C. 5106 insofar as Virginia has been found to
have failed to carry out its responsibilities under the Commission's
Atlantic Menhaden ISFMP and the measures that Virginia has failed to
implement and enforce are necessary for the conservation of the
Atlantic menhaden fishery. Further, the moratorium prohibits fishing in
Virginia State waters and processing and/or landing Atlantic menhaden
if harvested in Virginia State waters and is being implemented within
six months of the agency findings. The Secretary conducted the Atlantic
Coastal Act's non-compliance process by informal adjudication as set
forth in the Administrative Procedure Act (APA) at 5 U.S.C. 555. More
specifically, the agency gave Virginia prompt notice of the proceeding
and an opportunity to meet in person to discuss the matter. Matthew
Strickler, Secretary of Virginia's Natural Resources, and other
Virginia staff met with NMFS and NOAA staff on November 22, 2019.
Virginia Governor Ralph Northam also provided a letter dated November
20, 2019, to the Secretary stating the management measures as outlined
in Amendment 3 are necessary to conserve menhaden and other fisheries
that depend on them for survival and that a moratorium is the most
appropriate way to bring about a shift to responsible management of
Atlantic menhaden in Virginia. Notice and an opportunity for comment
were also provided to the New England Fishery Management Council, Mid-
Atlantic Fishery Management Council, the South Atlantic Fishery
Management Council, the Commission, the U.S. Fish and Wildlife Service,
and the Commonwealth of Virginia. NMFS also promptly notified the
public of this proceeding in a Federal Register notice (84 FR 65787;
November 29, 2019). Further, the Secretary is providing Virginia with
immediate notice of his findings, which the State will receive prior to
actual closure of the fishery, and notifies the public of the
Secretary's decision in this Federal Register document prior to
closure.
Public comment is not required under the Act because the rigid
timeline can make it impracticable and would potentially delay
mandatory agency action, and also because the issue has been
considerably vetted in public forums, such as before the Commission in
the months prior to the referral through development of Amendment 3 to
the Atlantic menhaden ISFMP. Nevertheless, NMFS did notify the public
of this action in its Federal Register notice dated November 29, 2019.
The agency received approximately 40 comment letters. Four opposed a
moratorium while the remaining letters (including more than 12,000
signatures) supported a moratorium.
The declaration of a moratorium does not trigger the analytical
requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.
because the action was not the result of notice and comment rulemaking
under Section 553 of the APA.
The declaration of a moratorium does not fall under review under
Executive Order 12866 insofar as the moratorium is not a regulatory
action of the agency but is an action mandated by Congress upon the
findings of certain conditions precedent set forth in the Atlantic
Coastal Act, which also prescribes the nature and extent of the
moratorium. This action is required by 16 U.S.C. 5101 and is exempt
from review under Executive Order 12866.
[[Page 71332]]
The moratorium is not the result of a policy formulated or
implemented by the agency, but instead is the result of the application
of found facts to the Congressional standards set forth in the Atlantic
Coastal Act and as such, the declaration does not implicate federalism
in the manner contemplated by Executive Order 13132. The agency,
however, has nevertheless consulted, to the extent practicable, with
appropriate state and local administrative and law enforcement
officials to address the principles, criteria, and requirements of E.O.
13132.
Authority: 16 U.S.C. 1801 et seq.
Dated: December 19, 2019.
Christopher Wayne Oliver,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 2019-27834 Filed 12-19-19; 4:15 pm]
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