05-11462. Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, and Butterfish Fisheries; Amendment 10 Atlantic Mackerel Limited Access Program and Control Date

AGENCY:

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

ACTION:

Proposed rule; advance notice of proposed rulemaking (ANPR); reaffirmation of a control date; notice of intent to develop a limited access program; request for comments.

SUMMARY:

NMFS announces that it is considering, and is seeking public comment on, proposed rulemaking to control future access to the Atlantic mackerel fishery if a management regime is developed and implemented under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) to limit the number of participants in this fishery in Amendment 10 to the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan (FMP). This announcement alerts interested parties of potential eligibility criteria for future access so as to discourage speculative entry into the fishery while the Mid-Atlantic Fishery Management Council (Council) considers how access to the Atlantic mackerel fishery should be controlled. NMFS also reaffirms, on behalf of the Council, the most recent control date of July 5, 2002, for this fishery, which may be used for establishing eligibility criteria for determining levels of future access to the Atlantic mackerel fishery; informs the public that the Council is developing such a program in Amendment 10 to the FMP as expeditiously as possible; and notifies the public of several measures that are under consideration by the Council for inclusion in Amendment 10.

DATES:

Written comments must be received on or before 5 p.m., local time, July 11, 2005.

ADDRESSES:

Comments may be submitted as follows:

• Written comments should be sent to Patricia A. Kurkul, Regional Administrator, NMFS, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on Atlantic Mackerel Reaffirmation of Control Date.”
• Comments may be sent via facsimile (fax) to: [phone].
• Comments may be submitted by e-mail. The mailbox address for providing e-ail comments is MackContDate.gov. Include in the subject line of the e-mail comment the following document identifier: “Comments-Atlantic Mackerel Amendment 10.” • Comments may also be submitted electronically through the Federal e-Rulemaking portal: http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Eric Jay Dolin, Fishery Policy Analyst, 978-281-9259; fax [phone]. email: [e-mail].

SUPPLEMENTARY INFORMATION:

Atlantic mackerel (Scomber scombrus) is a migratory species that supports important recreational and commercial fisheries along the Atlantic coast of the United States and Canada. The Council has considered the possibility of limiting entry to the Atlantic mackerel fishery for more than a decade. An initial notification establishing a control date of August 13, 1992, for all of the fisheries included in the FMP (i.e., Atlantic mackerel, Loligo and Illex squids, and Atlantic butterfish) was published on August 13, 1992 (57 FR 36384). That document announced that, as of that date, no vessel would be guaranteed entry into a limited access fishery under the FMP, if the Council chose to implement such a program. The 1992 control date was rescinded for the Atlantic mackerel fishery on September 27, 1994 (59 FR 49235), because the Council and NMFS concluded that information regarding biomass levels, fishing levels, fishing effort, and catch indicated that the Atlantic mackerel fishery would not require limited access management in the foreseeable future. Rescission of the 1992 control date also was intended to remove a disincentive to fish for what was then considered an underutilized resource (Atlantic mackerel).

In Amendment 5 to the FMP, the Council proposed a provision to require the Secretary of Commerce (Secretary) to publish a control date for the Atlantic mackerel fishery when commercial landings reached 50 percent of its allowable biological catch. NMFS did not include that provision in the proposed rule for Amendment 5 (60 FR 65618, December 20, 1995), because the proposed measure was not appropriate to implement by regulation, but rather was an expression of the Council's intent.

In May 1997, the Council requested that NMFS publish an ANPR reestablishing a control date for the Atlantic mackerel fishery. The Council intended the control date to discourage speculative entry of new vessels into the Atlantic mackerel fishery while the Council considered development of a management program to control the rate of capitalization. As a result, NMFS published an ANPR (62 FR 48047, September 12, 1997) that established a control date of September 12, 1997. Although the Council intended to develop a controlled access program for the Atlantic mackerel fishery through an amendment to the FMP soon after establishing the 1997 control date, subsequent FMP amendments focused on other issues, such as implementation of Sustainable Fisheries Act requirements.

In 2002, the Council became aware that domestic processing capacity for Atlantic mackerel could increase rapidly in the near future based on testimony from members of the harvesting and processing sectors of the industry indicating that there was significant interest in expansion of domestic shore-side processing for Atlantic mackerel. Because the Council was concerned about rapid expansion of harvesting capacity in the fishery, possible overcapitalization, and the fact that nearly 5 years had passed since the 1997 control date was established, the Council requested, in April 2002, that a new control date for the Atlantic mackerel fishery be established. As a result, NMFS published an ANPR on July 5, 2002 (67 FR 44792), which established that date as the new control date for the Atlantic mackerel fishery. The ANPR was again intended to discourage speculative entry into the fishery while potential management regimes to control access into the fishery were discussed and possibly developed by the Council, and to help the Council distinguish established participants from speculative entrants to the fishery, should such a program be developed. The ANPR noted that the control date did not commit the Council to develop any particular management regime or to use any specific criteria for determining entry to the fishery. However, it did inform the public that the Council might undertake rulemaking in the future to implement a limited access program and that interested participants in the Atlantic mackerel fishery should locate and preserve records that could be used to substantiate and verify their participation in the Atlantic mackerel fishery.

On March 4, 2005 (70 FR 10605), the Council published a notice of intent to prepare a Supplemental Environmental Impact Statement to consider impacts of alternatives for limiting access to the Atlantic mackerel fishery. The Council subsequently conducted scoping meetings on development of a limited access program for Atlantic mackerel which the Council planned to include in Amendment 9 to the FMP. However, because the Council has decided to complete and submit for review by the Secretary of Commerce several other measures in Amendment 9 that are farther along in their development than the mackerel limited access program, the Council voted on May 4, 2005, to complete Amendment 9 without a limited access program for the Atlantic mackerel fishery, and to pursue the Atlantic mackerel limited access program through Amendment 10 to the FMP, which it will develop as expeditiously as possible, and concurrently with its completion of Amendment 9.

Because of concerns that the Atlantic mackerel fishery is at, or very near, the harvesting capacity that can be sustained by the long-term potential yield of the Atlantic mackerel resource, and because the development of a limited access program is typically complex and takes substantial time to complete, the Council also voted on May 4, 2005, to request that NMFS publish an ANPR to reaffirm the most recent control date for this fishery, i.e., July 5, 2002, and to notify the public of its development of a limited access program in Amendment 10. Further, the Council requested that the public be notified that it is considering the following measures in Amendment 10: Qualification dates for the Atlantic mackerel fishery between 1983 and 2005; tiered levels of entry to the fishery; and, limitations on the size and/or allowable levels of participation of U.S. at-sea domestic processing in the fishery. Other measures may be considered; announcement of these measures is for informational purposes only and does not commit the Council to these or any other specific measures. In order to be approved and implemented, any measures proposed by the Council in Amendment 10 must be found consistent with the requirements of the Magnuson-Stevens Act and other applicable law. The public will have the opportunity to comment on the measures and alternatives being considered by the Council through public meetings and public comment periods required by the National Environmental Policy Act and the Magnuson-Stevens Act, and as provided by the Administrative Procedure Act.

This reaffirmation of the July 5, 2002, control date is intended to strongly discourage speculative entry into the fishery while limited access measures are developed and considered by the Council. The control date may be used by the Council to distinguish established participants from speculative entrants to the fishery. Although vessels that have entered, or that will enter the fishery after the control date are not ensured future access to the Atlantic mackerel fishery on the grounds of previous participation, additional and/or other qualifying criteria may also be applied. Consideration of a control date does not commit the Council or NMFS to develop any particular management system or criteria for participation in this fishery. The Council may choose a different control date, or may choose a management program that does not make use of such a date. This notification also reminds the public that interested participants should locate and preserve records that substantiate and verify their participation in the Atlantic mackerel fishery in Federal waters.

Dated: June 3, 2005.

Alan D. Risenhoover,

Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.