[Federal Register Volume 80, Number 184 (Wednesday, September 23, 2015)]
[Notices]
[Pages 57343-57345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24203]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE205


Atlantic Coastal Fisheries Cooperative Management Act Provisions; 
American Eel Fishery

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of determination of non-compliance; 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 
Delaware has failed to carry out its responsibilities under the 
Atlantic States Marine Fisheries Commission's (Commission) Interstate 
Fishery Management Plan for American Eel (Plan) and that the measures 
Delaware has failed to implement and enforce are necessary for the 
conservation of the American eel resource. This determination is 
consistent with the findings of the Commission on August 6, 2015. 
Pursuant to the Act, a Federal moratorium on fishing, possession, and 
landing of all American eel is hereby declared and will be effective on 
March 18, 2016. The moratorium will be withdrawn by NMFS when Delaware 
is found to have come back into compliance with the Commission's Plan 
for American Eel.

DATES: Effective March 18, 2016.

ADDRESSES: Alan Risenhoover, Director, Office of Sustainable Fisheries, 
NMFS, 1315 East-West Highway, Room 13362, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Derek Orner, Fishery Management 
Specialist, NMFS Office of Sustainable Fisheries, (301) 427-8567.

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 Interstate Fishery Management Plan (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 (delegated 
to the AA) must make two findings: (1) Whether the State in question 
has failed to carry out its responsibility under the Commission's 
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 Coastal Act non-compliance decision-making, which occurs 
contemporaneous with the first decision. That is, if the AA determines 
non-compliance in the first stage, the 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 AA, 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 AA has the discretion to decide when the moratorium 
will be implemented subject to the Act's six (6) month deadline.

Commission Referral of Non-Compliance

    On August 6, 2015, the Commission found that the State of Delaware 
is out of compliance with the Commission Plan. Specifically, the 
Commission found that Delaware has not implemented regulations that are 
necessary to rebuild the depleted

[[Page 57344]]

American eel stock, and to ensure sustainable commercial and 
recreational harvest while preventing over-harvest of any eel life 
stage. The required measures that Delaware failed to implement are as 
follows:

Commercial Measures

    The following measures apply to all current yellow eel commercial 
fisheries. The development of any future yellow eel fisheries would be 
subject to the following measures:
    Minimum size and mesh requirements--It is generally accepted that 
American eel in the northern portion of the species' range are larger 
than eel in the southern end of the range. However, there is not enough 
information at this time to develop regional or state specific maximum 
sizes for the coast. Nonetheless, there is growing concern about the 
development of fisheries on small yellow eels and an increase in the 
minimum size is a means to prevent this fishery from developing 
further. The benefit of effective gear restrictions is smaller eels are 
not landed, thus eliminating the need for harvesters to handle these 
fish or enforcement having to measure fish. No gear requirements are 
sought to exclude larger eels from pots at this time because only a low 
number of silver eels are caught in pot fisheries. Gear restrictions 
that are instituted should be monitored for effectiveness. States and 
jurisdictions are required to adopt a nine (9) inch minimum size limit 
for all yellow eel fisheries. Harvesters are required to sort their 
catch and discard eels smaller than the size limit.
    States and jurisdictions are required to implement a \1/2\'' by \1/
2\'' minimum on the mesh size used in commercial yellow eel pots. 
States may allow, for up to three years starting January 1, 2014, the 
use of a 4 by 4 inch escape panel constructed of a mesh size of at 
least \1/2\'' by \1/2\'' inch mesh in order to reduce the financial 
burden of gear changes on the fishery.

Recreational Measures

    The following measures apply to all current yellow eel recreational 
fisheries. In order to minimize the chance of excessive recreational 
harvest, as well as circumvention of commercial eel regulations, the 
ASMFC member states/jurisdictions shall establish uniform possession 
limits for recreational fisheries. States and jurisdictions are 
required to adopt a nine (9) inch minimum size limit for all 
recreational fisheries.
    Recreational Bag Limit--Given the interest to have all fishery 
sectors contribute to conservation measures under Addendum III all 
states and jurisdictions are required to implement a daily recreational 
bag limit of 25 fish per day per angler.
    Party/charter (for hire) exemption--Crew and captain involved in 
party/charter (for-hire) employment on party/charter (for-hire) 
activities are exempt from recreational bag limit reduction. Crew 
members involved in for-hire employment are allowed to maintain the 
current 50 fish per day bag limit for bait purposes during fishing, as 
specified under the American Eel ISFMP.
    The Commission's Plan required all member States to implement the 
plan's eel regulations by January 1, 2014. As of August 6, 2015, 
Delaware still had not implemented the required actions. During both 
the Commission's August 5, 2015, American Eel Management Board meeting 
and its August 6, 2015, Policy and Business Board meetings, Delaware 
agreed with the Boards' determinations that they were not in compliance 
with the Plan.

Agency Action in Response to Commission Non-Compliance Referral

    The Commission forwarded its findings of their August 6th vote in a 
formal non-compliance referral letter that the Secretary received on 
August 19, 2015. In response to receipt of this letter, NMFS began the 
Atlantic Coastal Act's 30-day determination clock. On August 21, 2015, 
NMFS sent letters to the State of Delaware, the Mid-Atlantic Fishery 
Management Council, the U.S. Fish & Wildlife Service (USFWS), and to 
the Commission, advising them of the Atlantic Coastal Act's non-
compliance process, inviting them to provide commentary on the issue, 
and in the case of Delaware, inviting the State to meet with NMFS to 
present its position in person or provide written comments on the 
Commission findings. NMFS also advised the public of the referral, and 
invited comments in a Federal Register notice dated August 27, 2015 (80 
FR 166).
    On September 2, 2015, Delaware representatives met with NMFS staff 
via conference call. During this meeting, Delaware agreed that it was 
out of compliance and that it did not contest the conservation 
necessity of the Commission's American eel measures. Delaware described 
its legal and regulatory framework for eel, its eel fishery, and 
confirmed its intent to finalize legislation to comply with measures 
identified in Addendum III in January 2016 irrespective of any Federal 
action. Delaware followed up that meeting with a letter on September 
11, 2015, that provided additional information on Delaware's past 
efforts and current plans to comply with the Plan, previous and current 
eel conservation measures and eel fisheries. NMFS received one public 
comment in response to the referral of non-compliance. That comment 
supported a full moratorium, albeit without articulating any background 
or factual support. The USFWS also provided a letter with comments 
concurring with the Commission finding that the State of Delaware is 
currently out of compliance with the ISFMP for American Eel. In 
addition, the USFWS has been undertaking an extensive status review for 
the American eel to determine if adding the species to the Federal list 
of endangered and threatened wildlife list is warranted. A petition to 
list American eel was submitted by the Council for Endangered Species 
Act Reliability. A 12-month finding as to whether the listing is 
warranted is expected by September 30, 2015.

Agency's Findings

    NMFS' findings in this matter support a positive 30-Day 
Determination of non-compliance. The best available science suggests 
that American eel are depleted and that management measures are 
necessary to conserve the species. Specifically, the 2012 Benchmark 
American Eel Stock Assessment indicated that the American eel stock has 
declined in recent decades and the prevalence of significant downward 
trends in multiple surveys across the coast is cause for concern. The 
measures that Delaware failed to adopt were recommended by the 
Commission in Addendum III to respond to the stock assessment's 
findings. Delaware voted to approve those measures in 2013 during the 
Addendum III process and the state agrees even now that the measures 
are necessary for conservation. NMFS also agrees.
    NMFS recommends that the required moratorium begin on March 18, 
2016. This moratorium would prohibit, in Delaware waters, the 
possession of American eel (all life stages). We chose the March 
implementation date after consulting with the relevant staff from 
Delaware, and reviewing the facts of this situation, including the 
Commission deliberations from this past August. Based upon our 
analysis, we found that a March implementation date is appropriate for 
two principle reasons. First, a March 18th closure date will give 
Delaware the time necessary for its legislature to bring these 
regulations back into compliance. Second, although the involved 
measures are necessary for conservation, the immediacy of that need is 
less critical given that Delaware's fall eel fishery appears to not

[[Page 57345]]

target eels that are the subject of Addendum III's protection.
    Delaware indicated to us that they expect to have appropriate 
regulations protecting American eel in place by early next year. If the 
State of Delaware does enact such measures, and the Commission 
determines that the measures are compliant with the Plan, under the 
Act, the Commission would immediately notify the Secretary that the 
state of Delaware is in compliance with the Plan. If NMFS concurs, the 
moratorium in the state waters of Delaware will be rescinded. If 
Delaware is unable to put in place appropriate regulations prior to 
March 18, 2016, then a Federal moratorium on eel fishing in Delaware 
waters would be immediately implemented and continue until the 
Secretary concurs with a determination from the Commission that the 
state of Delaware has come into compliance with the Plan.

Moratorium Prohibitions

    The positive 30-day finding triggers the moratorium prohibitions 
set forth in the Atlantic Coastal Act, 16 U.S.C. 5106(e). Accordingly, 
on March 18, 2016, NMFS will implement an American eel moratorium for 
in Delaware state waters. At that time, it will be unlawful to do the 
following:
    (1) Engage in fishing for American eel within the waters of the 
Delaware (Note: Under the Atlantic Coastal Act, the definition of 
``fishing'' includes landing and/or possessing);
    (2) Land, attempt to land, or possess American eel 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 American eel in Delaware waters 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 chapter;
    (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.

Classification

    This declaration of a moratorium is consistent with the Atlantic 
Coastal Act at 16 U.S.C. 5106 insofar as Delaware has been found to 
have failed to carry out its responsibilities under the Commission's 
American Eel Plan and the measures that Delaware has failed to 
implement and enforce are necessary for the conservation of the 
American eel fishery. Further, the moratorium prohibits fishing, 
possessing and/or landing American eel within Delaware state waters and 
is being implemented within six months of the agency findings.
    The declaration of a moratorium is consistent with the 
Administrative Procedures Act at 5 U.S.C. 555 insofar as Delaware was 
given prompt notice of the Commission's non-compliance referral and was 
given an opportunity to meet with the agency and provide comments on 
this matter. Further, the agency has immediately notified Delaware of 
the agency's determination in this matter. Additionally, NMFS provided 
notice to the public of this compliance action in a notice in the 
Federal Register dated (80 FR 166, August 27, 2015). NMFS received one 
comment in response to that notice suggesting that Delaware be found 
out of compliance and that a moratorium be implemented. The comment did 
not provide any further detail. NMFS' present action is consistent with 
the commenter's suggested outcome.
    NMFS finds that public comment is impracticable and contrary to the 
public interest, not only because the rigid statutory time lines makes 
such impracticable and would impermissibly delay mandatory agency 
action, but also because the issue has been considerably vetted in 
public forums, such as before the Delaware General Assembly and the 
Commission in the months prior to the referral. Nevertheless, NMFS did 
notify the public of this action in its Federal Register Notice (80 FR 
166; August 27, 2015). NMFS received one comment, which supported a 
moratorium and is described above.
    The declaration of 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 Administrative Procedures Act.
    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. Nevertheless, the agency has determined that this action is 
not significant for the purpose of E.O. 12866. The fishery is small and 
a moratorium is not expected to materially adversely affect the economy 
or have an impact of over $100 million. The matter creates no serious 
inconsistency with actions by other agencies and is not expected to 
have material budgetary impacts.
    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. 5101 et seq.

    Dated: September 18, 2015.
Eileen Sobeck,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2015-24203 Filed 9-22-15; 8:45 am]
 BILLING CODE 3510-22-P