[Federal Register Volume 65, Number 83 (Friday, April 28, 2000)]
[Proposed Rules]
[Pages 24906-24908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10750]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 000425113-0113-01; I.D. 042400H]
RIN 0648-AM16


Fisheries off West Coast States and in the Western Pacific; 
Western Pacific Crustacean Fisheries; Northwestern Hawaiian Islands 
Lobster Fishery

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

ACTION: Proposed rule; emergency closure; request for comments.

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[[Page 24907]]

SUMMARY: NMFS proposes a rule that would amend current regulations 
promulgated under the Fishery Management Plan for Crustacean Fisheries 
of the Western Pacific Region (FMP). This proposed rule would close the 
2000 Northwestern Hawaiian Islands (NWHI) commercial lobster fishery, 
which is scheduled to open on July 1, 2000, and will be promulgated 
under the emergency rulemaking authority of the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act). Closure 
of the fishery is being proposed to address concerns raised by NMFS 
scientists for the health of the fishery and the potential for 
overfishing lobster resources.

DATES: Comments will be considered if received on or before May 15, 
2000.

ADDRESSES: Comments should be sent to Dr. Charles Karnella, 
Administrator, Pacific Islands Area Office, NMFS (PIAO), 1601 Kapiolani 
Blvd., Rm 1101, Honolulu, HI 96814. Comments also may be sent via 
facsimile (fax) to 808-973-2941. Comments submitted via e-mail or 
Internet will not be accepted. Copies of the Environmental Assessment/
Initial Regulatory Flexibility Analysis (IRFA) are available from Dr. 
Karnella.

FOR FURTHER INFORMATION CONTACT: Alvin Katekaru, PIAO, 808-973-2937, 
fax 808-973-2941, e-mail <a href="/cdn-cgi/l/email-protection#e58489938c8bcb8e8491808e849790a58b8a8484cb828a93"><span class="__cf_email__" data-cfemail="fc9d908a9592d2979d8899979d8e89bc92939d9dd29b938a">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: The NWHI crustacean fishery is managed under 
the FMP, which was developed by the Western Pacific Fishery Management 
Council (Council) and implemented under the authority of the Magnuson-
Stevens Act by regulations appearing at 50 CFR part 660. Under the FMP, 
NMFS determines annually the harvest guideline for the fishery, which 
is expressed as the maximum number of lobsters (spiny and slipper 
lobsters combined) that may be harvested by federally permitted vessels 
from each of the four established lobster fishing grounds. Each year, 
the lobster fishery opens on July 1 and a lobster ground closes either 
when its harvest guideline has been reached, or December 31, whichever 
occurs first. Although the FMP allows a maximum of 15 permit holders in 
the fishery, during the 1998 and 1999 lobster seasons only 5 and 6 
vessels, respectively, participated in the fishery.
    On February 3, 2000, NMFS scientists calculated the 2000 lobster 
harvest guidelines based on estimates of exploitable lobster 
populations. While analyzing the data, the scientists noted an increase 
in uncertainty of model parameters in their calculation and determined 
that the population estimates for 2000 may not be accurate and should 
be viewed with extreme caution. Also, they observed a lack of 
appreciable rebuilding of lobster populations, despite significant 
reductions in fishing effort throughout the NWHI. Because of the 
uncertainty in calculating the exploitable population estimates used to 
derive accurate harvest guidelines and the potential for overfishing 
the lobster resources at certain lobster grounds, the Director of the 
Southwest Fisheries Science Center, NMFS, recommended that the NWHI be 
closed to commercial lobster fishing during the 2000 lobster season.
    At its meeting on March 1, 2000, the Council reviewed the 
exploitable lobster population estimates derived by NMFS and suggested 
that a bias-adjustment factor be used to refine the exploitable 
population estimates. Subsequently, NMFS calculated bias-adjusted 
exploitable lobster population estimates, which resulted in the 
following harvest guidelines: (spiny and slipper lobsters combined); 
Necker Island, 35,230 lobsters; Gardner Pinnacles, 17,550 lobsters; and 
Maro Reef, 35,490 lobsters (total NWHI harvest guideline equaling 
88,270 lobsters). The harvest guideline for the remaining NWHI lobster 
grounds combined (Area 4) could not be determined because no bias-
adjusted estimate of abundance could be computed.
    Despite the Council's suggestion to utilize the bias-adjusted 
estimate of abundance, NMFS, however, has determined that a 
precautionary closure of the fishery is necessary to respond to 
concerns about the health of the fishery and potential for overfishing 
the NWHI lobster resources. Accordingly, this proposed rule would 
prohibit all vessels registered for use under NWHI crustacean limited 
access permits to fish for, take, or retain lobsters or possess on 
board any gear (trap) for the fishing or taking of lobsters by 
extending the current closed season.
    Because it is important for NMFS to continue lobster research and 
stock assessment efforts to improve lobster population models for 
better estimating exploitable lobster populations in the future, NMFS 
is likely to implement an experimental fishing program (EFP), during 
the proposed extended closed season. This EFP would allow for the 
harvesting of lobsters at a level below the harvest guideline 
considered by the Council. Any EFP would be conducted under regulations 
appearing at 50 CFR 660.17 which would allow harvest at a reduced level 
during the proposed closed season. The EFP would be conducted in 
accordance with regulations appearing at 660.17. If approved for 
implementation, details of the EFP, including solicitation of 
interested participants, will be published as a separate notice in the 
Federal Register. Also, NMFS will directly notify all current holders 
of NWHI crustacean fishery limited access permits about an EFP.
    This closed season extension is being proposed as an emergency 
action under the authority of section 305(c) of the Magnuson-Stevens 
Act. Under section 305(c)(3), the emergency regulation may remain in 
effect for not more than 180 days after the date of publication, and 
may be extended for one additional period of not more than 180 days, if 
public comments have been solicited on the rule. The emergency 
regulation may be terminated at an earlier date.

Criteria for Issuing an Emergency Rule

    This emergency rule meets NMFS policy guidelines for the use of 
emergency rules (62 FR 44421, August 21, 1997), because the emergency 
situation results from recent, unforeseen events, or recently 
discovered circumstances. Recent data suggest low recruitment in this 
fishery. Because of the uncertainty in lobster population estimates and 
the resultant possibility of overharvesting of lobster resources, the 
Director of the NMFS Southwest Fisheries Science Center recommended 
that the NWHI lobster fishery be closed to commercial lobster fishing 
during the 2000 lobster season.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), has 
determined that this proposed rule is necessary to respond to an 
emergency situation concerning the NWHI lobster fishery and resources. 
The AA has also determined that this proposed rule is consistent with 
the Magnuson-Stevens Act and other applicable laws.
    NMFS has prepared an IRFA that describes the impact the proposed 
rule would have on small entities. The reasons for, objectives of, and 
legal basis for this proposed rule are described elsewhere in this 
preamble. Three alternative actions including the preferred alternative 
(closure of the fishery) are discussed. The IRFA discusses the economic 
impacts under the following scenarios: (1) Alternative 1--the fishery 
opens on July 1, 2000, with a harvest guideline of 194,350 lobsters 
(spiny and slipper lobsters combined) distributed among the established 
lobster grounds as follows: Necker Island, 58,110 lobsters; Gardner

[[Page 24908]]

Pinnacles, 28,860 lobsters; Maro Reef, 85,150 lobsters; and all other 
NWHI lobster grounds combined, 22,230 lobsters; (2) Alternative 2--the 
fishery opens on July 1, 2000, with a harvest guideline of 88,270 
lobsters (spiny and slipper lobsters combined) distributed among the 
established lobster grounds as follows: Necker Island, 35,230 lobsters; 
Gardner Pinnacles, 17,550 lobsters; Maro Reef, 35,490 lobsters; all 
other NWHI lobster grounds combined, 0 lobsters; and Alternative 3 
(preferred alternative)--extend the closed season from July 1 through 
December 31, 2000 (the NWHI commercial lobster fishery is closed during 
2000). The preferred alternative is anticipated to preserve and enhance 
the productive capability of the fishery's target lobster stocks as 
well as any incidentally caught species. However, a fishery closure 
will have negative impacts on fishery participants who rely on this 
fishery for a portion of their annual income. The five to six 
participants in this fishery have realized average annual ex-vessel 
revenues of $1.1 million during the last two seasons (approximately 
$200,000 per vessel). Although all participants also engage in other 
fisheries, the NWHI lobster fishery occurs during a slow season for 
their alternate fisheries, and, as such, represents a component of 
their annual activities and income. This component and its associated 
revenue will be lost to fishery participants under the preferred 
alternative. The relative importance of this fishery to participants is 
undetermined, but may be roughly considered to be equal to 25 percent 
to 33 percent (three to four months) of their annual gross revenues. 
This fishery has not been a consistently profitable undertaking, but it 
is not inconsequential to fishery participants. The opportunity to 
participate in the 2000 NWHI commercial lobster fishery, and its 
associated revenues will be lost to fishery participants under the 
preferred alternative.
    The number of fishery participants directly impacted is likely to 
be less than the 15 permit holders, as only 10 vessels have 
participated in the fishery in the past two seasons, 5 in 1998 and 6 in 
1999 (only one vessel participated in both seasons); however, all 
permit holders will be vulnerable to reductions in the value of their 
permits. Seasonal markets for NWHI lobster may also be adversely 
affected under the preferred alternative. Because this is a relatively 
small fishery, marketing of its product has been challenging, as 
wholesalers and retailers prefer predictable and reliable supply 
sources. However, a reputation for a locally produced quality product 
has been established and buyers willing to participate on a seasonal 
basis have been found. The preferred alternative will have a negative 
impact on these connections and reestablishment of market channels may 
be difficult when the fishery does reopen.
    Nonetheless, the preferred alternative is expected to promote a 
sustainable fishery which will have greater positive impacts on fishery 
revenues and participants over the long term. The preferred alternative 
will not implement any additional recordkeeping or other compliance 
requirements, and does not duplicate, overlap or conflict with other 
Federal regulations.
    Alternative 1 and Alternative 2, which include commercial fishing 
were rejected; they did not address concerns for the status of the 
lobster resources in a sufficiently precautionary manner, particularly 
in light of the concerns raised by NMFS scientists. However, the 
scientists have expressed concern for the lack of data, that would 
result from a complete fishery closure. They are developing a research 
plan that would allow for the controlled collection of fishery data. 
The results of an EFP are expected to provide informed recommendations 
for the 2001 season as well as subsequent seasons. NMFS is considering 
an experimental fishery which, if approved, will be assessed prior to 
implementation. A copy of the IRFA is available for public review and 
comment (see ADDRESSES).
    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    An informal consultation under the Endangered Species Act was 
concluded for the proposed action on April 18, 2000. As a result of the 
informal consultation, the Regional Administrator determined that 
fishing activities under this proposed rule is not likely to affect 
adversely endangered and threatened species or critical habitat.

List of Subjects in 50 CFR Part 660

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, 
Reporting and recordkeeping requirements.

    Dated: April 26, 2000.
Andrew J. Kemmerer,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set forth in the preamble, NMFS proposes to amend 
50 CFR part 660 as follows:

PART 660-FISHERIES OFF WEST COAST STATES AND IN THE WESTERN PACIFIC

    1. The authority citation for part 660 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.
    2. In Sec. 660.45, effective from July 1, 2000, through December 
31, 2000, paragraph (a) is suspended, and add a new paragraph (c) to 
read as follows:


Sec. 660.45  Closed seasons.

* * * * *
    (c) Lobster fishing is prohibited in Permit Area 1 from July 1, 
2000, through December 31, 2000.
    3. In Sec. 660.48, paragraph (a)(9) is suspended effective from 
July 1, 2000, through December 31, 2000.
    4. In Subpart D, Sec. 660.50 is suspended effective from July 1, 
2000, through December 31, 2000.

[FR Doc. 00-10750 Filed 4-27-00; 8:45 am]
BILLING CODE 3510-22-F


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