02-21984. Fisheries of the Northeastern United States; Management of the Atlantic Hagfish Fishery

AGENCY:

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

ACTION:

Notice of denial of petition for rulemaking; advance notice of proposed rulemaking to establish a control date for the hagfish fishery; request for comments.

SUMMARY:

NMFS announces its decision to deny the rulemaking requested in a Petition for Rulemaking submitted by Mr. William R. Palombo, Nippert Fishing Corporation (Petitioner). On January 18, 2002, the Petitioner submitted a Petition requesting that NMFS immediately implement emergency measures to limit entry into the Atlantic hagfish fishery. At present, the Atlantic hagfish fishery is not regulated under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

NMFS also announces that it is considering, and is seeking public comment on, proposed rulemaking to control future access to the hagfish (Myxine glutinosa) resource should a management regime be developed and implemented under the Magnuson-Stevens Act that would limit the number of participants in the fishery. This announcement is also intended, in part, to promote awareness of potential eligibility criteria for future access and to discourage speculative entry into the fishery while the New England Fishery Management Council (Council) and NMFS consider whether to control access to the hagfish fishery and, if they decide in favor of controlling access to the hagfish fishery, which methods should be used.

DATES:

The date of publication of this notification, August 28, 2002 will be known as the “control date” and may be used for establishing eligibility criteria for determining levels of future access to the hagfish fishery subject to Federal authority. Comments on the notice of a control date must be received by 5 p.m. EST September 27, 2002. Comments will not be accepted via email.

ADDRESSES:

Comments should be directed to Patricia A. Kurkul, Regional Administrator, National Marine Fisheries Service, 1 Blackburn Drive, Gloucester, MA 01930. The envelope should be marked “Hagfish Control Date Comments.”

FOR FURTHER INFORMATION CONTACT:

Myles Raizin, Fishery Policy Analyst, [phone], fax [phone], e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

Finding on Petition for Rulemaking

On April 5, 2002, NMFS published a Notice of Receipt of Petition for Rulemaking requesting public comment on a Petition for Rulemaking submitted by the Petitioner (67 FR 16362). NMFS also solicited information on Atlantic hagfish biology and ecology. The Petitioner had requested that NMFS immediately implement emergency measures to limit entry into the Atlantic hagfish fishery. A full discussion of the Petitioner's request is included in the preamble to the Notice of Receipt of Petition for Rulemaking and is not repeated here.

Comments and Responses

Four comment letters were received during the comment period for this action, which ended on May 6, 2002. Three commentors favored the petition. One was from the original petitioner, who restated the points made in his Petition. The other two in favor were from an Atlantic hagfish vessel owner and from one group of scientists from the Shoals Marine Laboratory who have studied Atlantic hagfish. One opposing comment was received from an Atlantic hagfish processor.

Comment 1: The scientists who commented noted that published scientific studies suggest that Atlantic hagfish are likely vulnerable to overfishing since reproductive capacity of hagfish is extremely limited. They note that females of reproductive age produce a single crop of 10 to 20 eggs, at most, once per year. They also note that there is high mortality of discarded Atlantic hagfish because animals die from thermal and salinity shock in surface water. They note they have sampled the same research site since 1987 and believe their findings indicate the area was quickly depleted after it was targeted by Atlantic hagfish vessels in 1996.

Response: NMFS recognizes that there are valid reasons for a management program to be initiated for Atlantic hagfish. However, there is insufficient data available to conclude that the status of the Atlantic hagfish resource merits emergency action by the Secretary of Commerce. NMFS is publishing a control date to discourage speculative entry to the fishery and will urge the Council to develop a fishery management plan. The New England Fisheries Science Center, NMFS, will conduct a Stock Assessment Review Committee (SARC) for Atlantic hagfish in June, 2003. The SARC will be tasked with determining stock size and abundance and estimating biological reference points. This information can be used by the Council to develop management measures.

Comment 2: An Atlantic hagfish processor notes that in order to redirect fishing effort off of intensively fished traditional Atlantic hagfish grounds and obtain better quality product, he has relied on larger vessels that can transit further to other fishing grounds this year. He notes that larger deck spaces allow boats to cull out small individuals and return them to the ocean alive. He also notes he has seen improvement in product quality due to the refrigeration capabilities of larger vessels. He believes that a combination of larger and smaller vessels is desirable for the fishery. He believes that an FMP should be developed, but with the aid of reliable scientific data based on stock assessments. He believes it would be a disservice to the fishery to enact management measures, particularly through an emergency action, without data and questions the legality of emergency action without evidence that an emergency exists.

Response: NMFS believes that a control date is an appropriate first step toward management because it provides a tool for the Council should it decide it is necessary to include controlled entry in the management program for the Atlantic hagfish fishery. The manner in which the control date would be utilized would be determined in the future and would not necessarily distinguish between vessels of different sizes.

Denial of the Petition

There is no evidence of an emergency regarding the fishery that needs to be addressed. NMFS believes that emergency action is inappropriate because there is no evidence that, if determined necessary, there is sufficient time to develop management measures through the Magnuson-Stevens Act process would result in irreparable harm to the resource. NMFS will urge the Council to start work on a fishery management program for hagfish. In the meantime, publication of the control date will discourage speculative entry into the fishery and provide time for the Council to consider the issues concerning the stock in a full public process.

Advance Notice of Proposed Rulemaking to Establish a Control Date

While there currently is no fishery management plan (FMP) for Atlantic hagfish, NMFS will urge the Council to develop one. As part of that FMP, a controlled access system may be required in the hagfish fishery to match fishing capacity to the sustainable harvest level. The limitation of entry into the fishery may be based on levels of participation or other criteria such as domestic harvest capacity.

The control date is intended to discourage speculative entry into the Atlantic hagfish fishery while controlled access schemes are developed by the Council. The control date will help to distinguish established participants from speculative entrants to the fishery. Although participants are notified that entering the fishery after the control date will not ensure them of future access to the Atlantic hagfish resource on the grounds of previous participation, additional and/or other qualifying criteria may also be applied. The Council may choose different and variably weighted methods to qualify participants based on the type and length of participation in the fishery.

This advance notice of proposed rulemaking establishes August 28, 2002, as the control date for potential use in determining historical or traditional participation in the Atlantic hagfish fishery. Consideration of a control date does not commit the Council or NMFS to develop any particular management regime or criteria for participation in this fishery. The Council or NMFS may choose a different control date, or may choose a management program that does not make use of such a date.

Fishers are not guaranteed future participation in the fishery, regardless of entry date or intensity of participation in this fishery before or after the control date. The Council and NMFS may choose to give variably weighted consideration to fishers active in the fishery before and after the control date. The Council and NMFS may also choose to take no further action to control entry or access to the fishery, in which case the control date may be rescinded. Any action by the Council or NMFS will be taken pursuant to the requirements for FMP development established under the Magnuson-Stevens Act.

This notice also advises the public that, if in the future the Councils or NMFS undertake a controlled entry or limited entry program, evidence of prior participation in the hagfish fishery in Federal waters may be required as a means of demonstrating eligibility.

Authority: 16 U.S.C. 1801 et seq.

Dated: August 21, 2002.

William T. Hogarth,

Assistant Administrator for Fisheries, National Marine Fisheries Service.