00-20845. Shad and River Herring; Interstate Fishery Management Plans

AGENCY:

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

ACTION:

Notice of determination of noncompliance; notice of declaration of a moratorium.

SUMMARY:

In accordance with the Atlantic Coastal Fisheries Cooperative Management Act of 1993 (Act), NMFS, upon a delegation of authority from the Secretary of Commerce (Secretary) has determined that the State of South Carolina is not in compliance with the Atlantic States Marine Fisheries Commission's (Commission) Interstate Fishery Management Plan (ISFMP) for Shad and River Herring and that the measures in the ISFMP that the state has failed to implement are necessary for the conservation of American shad. Pursuant to the Act, a Federal moratorium on fishing for American shad within South Carolina state waters is hereby declared, and will be effective on January 5, 2001, if by December 15, 2000, South Carolina is not found to be in compliance with the ISFMP for Shad and River Herring. The purpose of this action is to support and encourage the development, implementation, and enforcement of the Commission's ISFMPs to conserve and manage Atlantic coastal fishery resources.

DATES:

The moratorium and any necessary regulations will become effective on January 5, 2001, through a separate notification and rule unless, by December 15, 2000, the State of South Carolina is found to have adopted and implemented measures to return to compliance with the Commission's ISFMP for Shad and River Herring.

FOR FURTHER INFORMATION CONTACT:

Richard H. Schaefer, Chief, Staff Office for Intergovernmental and Recreational Fisheries, NMFS, 301-427-2014.

SUPPLEMENTARY INFORMATION:

Background

The Act 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 must make a 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.

Commission Findings of Non-Compliance

The Commission adopted Amendment 1 to the ISFMP for Shad and River Herring in October 1998. Under Amendment 1, states are required to implement and enforce an aggregate 10-fish daily creel limit in recreational fisheries for American shad or hickory shad. As of July 1, 2000, South Carolina has a 20-fish American shad creel limit for the Santee River and a reduction in the number of days that the fishery can operate in the lower part of the river. South Carolina does not have an American shad creel limit for any other waters. Therefore, the Commission found that the State of South Carolina is not in compliance with the ISFMP for Shad and River Herring.

The Commission notified the Secretary of its finding on June 9, 2000, and suggested that the Secretary use his discretionary authority under the Act to delay the date of the moratorium, if declared, for up to 6 months, because the State of South Carolina is making an effort to come into compliance.

NMFS Determination Regarding Compliance by the State of South Carolina

Based on a careful analysis of all relevant information, and taking into account comments presented by the State of South Carolina and the New England Fishery Management Council, NMFS has determined that the State of South Carolina is not in compliance with the Commission's ISFMP for Shad and River Herring. This determination is based on South Carolina's failure to implement and enforce the creel limits of the Commission's ISFMP for Shad and River Herring as specified in Amendment 1. Therefore, South Carolina must implement and enforce the American shad creel limit of 10 fish consistent with Amendment 1 to the ISFMP for Shad and River Herring in order to come back into compliance. Further, the NMFS has determined that implementation and enforcement of the creel limit by South Carolina is necessary for the conservation of the resource. The American shad resource is comprised of a number of related populations that are in varying conditions, ranging from healthy to severely overfished. Each major river along the Atlantic coast appears to have a discrete spawning stock of American shad, yet the actual status of only seven of those several dozen stocks is currently known. As the stocks move from their natal rivers they are taken in mixed-stock ocean-intercept fisheries. The contribution that each stock makes to these intercept fisheries is not currently known. The coast-wide creel limit is designed to use the precautionary approach to limit fishing mortality on each stock in their native waters and addresses the uncertainty of the status of most American shad stocks. The failure of any state to implement and enforce the requirements of Amendment 1 to the ISFMP for Shad and River Herring increases the likelihood that additional stocks will become overfished.

Although the State of South Carolina is not in compliance with the Commission's ISFMP for Shad and River Herring, because the state is making expeditious efforts to promulgate regulations that would bring the state into compliance, NMFS is delaying implementation of the moratorium until January 5, 2001. If NMFS determines that the State of South Carolina has complied with Amendment 1 to the ISFMP, NMFS will publish an appropriate announcement in the Federal Register rescinding the moratorium with respect to the State of South Carolina. If by December 15, 2000, the State of South Carolina has not been found to have complied with Amendment 1 to the ISFMP, NMFS will issue an interim final rule implementing the moratorium effective January 5, 2001. The interim rule may include measures necessary to implement the moratorium, such as prohibition on possession of American shad in South Carolina waters and a prohibition on landing American shad in South Carolina. Delaying the effective date of the moratorium until January 5, 2001, will allow South Carolina time to complete its legislative process, and have the Commission review the new regulations for compliance. This delay will not significantly diminish American shad conservation efforts because the fishery will not begin again until January 2001.

If the moratorium goes into effect, NMFS will terminate it as soon as possible upon determination that the State has taken appropriate remedial actions to bring it into compliance with the ISFMP.

Dated: August 10, 2000.

Penelope D. Dalton,

Assistant Administrator for Fisheries, National Marine Fisheries Services.