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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

# AGENCY:

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

# ACTION:

Proposed rule; emergency closure; request for comments.

      ( print 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                         *alvin.katekaru@noaa.gov*.                    

# 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                           ( print 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 § 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:

§ 660.45

* * * * *

(c) Lobster fishing is prohibited in Permit Area 1 from July 1, 2000, through December 31, 2000.

3. In § 660.48, paragraph (a)(9) is suspended effective from July 1, 2000, through December 31, 2000.

4. In Subpart D, § 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