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###### Department of Commerce

###### National Oceanic and Atmospheric Administration 

          - 50 CFR Part 660 
          - [Docket No. 000619185-0185-01; I.D. 042400H] 
          - RIN 0648-A006 

# AGENCY:

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

# ACTION:

Final rule; emergency closure. 

# SUMMARY:

NMFS issues a final rule to close the 2000 Northwestern Hawaiian Islands (NWHI) commercial lobster fishery, which is scheduled to open on July 1, 2000. This rule, which is authorized by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), amends current regulations promulgated under the Fishery Management Plan for Crustacean Fisheries of the Western Pacific Region (FMP). NMFS is closing the lobster fishery to prevent the potential for overfishing lobster resources. 

# DATES:

Effective July 1, 2000, through December 31, 2000. 

# ADDRESSES:

Copies of the Environmental Assessment, Regulatory Impact Review, and Final Regulatory Flexibility Analysis (FRFA) are available from Dr. Charles Karnella, Administrator, Pacific Islands Area Office, NMFS (PIAO), 1601 Kapiolani Blvd., Rm 1101, Honolulu, HI 96814. 

# FOR FURTHER INFORMATION CONTACT:

                        Alvin Katekaru, PIAO, 808-973-2937,                               ( print page 39315)                            fax 808-973-2941, e-mail                         *alvin.katekaru@noaa.gov*.                     

# SUPPLEMENTARY INFORMATION:

NMFS issues a final rule, under section 305(c) of the Magnuson-Stevens Act, to close the 2000 commercial lobster fishery in the NWHI. This emergency action is being taken because NMFS is concerned about the potential for overfishing the lobster stocks in the NWHI. While calculating the year 2000 estimates of exploitable population of lobsters, utilizing the same analytical procedures that were used to estimate exploitable populations in 1998 and 1999, Southwest Fisheries Science Center scientists expressed alarm at the increasing level of uncertainty in their computations. The scientists also noted a lack of appreciable rebuilding of lobster populations, despite significant reductions in fishing effort throughout the NWHI. Given the shortcomings in understanding the dynamics of the NWHI lobster populations, the increasing uncertainty in model parameter estimates, and the lack of appreciable rebuilding of the lobster population, NMFS is closing the NWHI commercial lobster fishery as a precautionary measure. 

A proposed rule to close the fishery was published on April 28, 2000 (65 FR 24906), requesting public comments through May 15, 2000. Comments were received from five individuals; the comments did not prompt any changes to the proposed rule. The final rule, therefore, is the same as the proposed rule. Additional background information may be found in the preamble to the proposed rule. 

## Comments and Responses 

*Comment 1:*                     A commenter strongly opposes closure of the fishery based on the uncertainty of NMFS' stock assessment models, and felt that NMFS should withdraw the proposed rule and allow the fishery to open with a harvest guideline of no more than 130,000 lobsters.                 

*Response:*                     While calculating the year 2000 estimates of the exploitable population of lobsters, NMFS scientists encountered an increasing level of uncertainty in their computations utilizing the same analytical procedures that were used to estimate exploitable populations in 1998 and 1999. Also they noted violations of several of the population model's assumptions and the lack of appreciable rebuilding of lobster populations, despite significant reductions in fishing effort. These are the major reasons why NMFS is taking precautionary action to close the fishery. The commenter suggests using a harvest guideline of 130,000 lobsters. Although this harvest guideline contains a bias-adjustment factor based on fishing mortality, there is also uncertainty associated with the value of F (fishing mortality). Accordingly, NMFS believes that allowing the commercial fishery to operate under a harvest guideline of 130,000 lobsters is not sufficiently precautionary for the long-term health of the stock.                 

*Comment 2:*                     A commenter suggests that the commercial lobster fishermen enter into an agreement with NMFS to fish according to an appropriate research protocol. The Commenter states that such an approach is as precautionary as a closure of the fishery and allows for the collection of data to improve the understanding of the fishery and model parameters.                 

*Response:*                     NMFS endorses joint industry initiatives that facilitate cost-effective data collection. However, given the immediate concerns about the lobster resources, NMFS believes that closure of the fishery associated with an experimental fishery program (EFP) provides cost-effective control over the number of lobsters harvested, data collected, and the specimens tagged by the commercial fishermen. NMFS notes that the Western Pacific Fishery Management Council's (Council) Crustacean Plan Team, which recommended closure of the fishery beginning in 2000, suggested several alternatives for monitoring the fishery, including the implementation of an EFP.                 

*Comment 3:*                     A commenter states that if the fishery is closed, NMFS' current lobster tagging study would be prematurely and effectively terminated, and that important data needed to estimate fishing mortality (F) and lobster population size would be lost. The commenter also stated that the fishery should be maintained to improve the value of the tagging program.                 

*Response:*                     NMFS agrees that terminating all lobster fishing would affect NMFS' ongoing and proposed lobster tagging studies, as well as compromise the Council's and NMFS' ability to make informed resource management and conservation decisions in the future. However, closing the commercial fishery and implementing an EFP is the most effective approach to achieve the objectives of the lobster tagging studies and data collection efforts.                 

*Comment 4:*                     A commenter feels that there is no evidence of overfishing; that the FMP's constant rate policy is conservative and precautionary; and that if the NWHI commercial lobster fishery is allowed to operate under a harvest guideline of 194,000, 130,000, or 88,000 lobsters, these levels would still be above the current overfishing threshold, either Spawning Potential Ratio- or Maximum Sustainable Yield-based.                 

*Response:*                     Although NMFS agrees that the FMP's constant harvest rate policy (13 percent removal of the annual exploitable population which is associated with a 10 percent risk of overfishing) is conservative, and is not aware of any written documentation showing that the lobster stocks are overfished, NMFS has serious concern over the uncertainty of the lobster population estimates of the annual exploitable lobster population. To ensure that overfishing of the lobster stocks does not occur, the precautionary approach of the closure is being taken.                 

*Comment 5:*                     One commenter states that the “bias-correction factor” applied by NMFS, which is based on catchability coefficients (q) to derive an adjusted 88,270 harvest guideline, is less valid than a (F)-based correction factor so that a harvest guideline of 130,000 lobsters for the 2000 NWHI lobster fishery is more appropriate.                 

*Response:*                     Discussions among the scientists regarding the statistical merit of using q- and F-based bias-adjustment factors underscore the concern over the uncertainty present in the model parameters used to calculate the annual exploitable population. There are no reliable estimates of (F); there is more uncertainty associated with an F-based adjustment factor than a (q)-based adjustment factor. Also, NMFS scientists have noted that model-based versus experiment-based differences in (q) result in significant differences in estimates of exploitable population. Given these uncertainties, NMFS believes the appropriately conservative course of action is to close the fishery and re-estimate the biological and fishery parameters. A lobster tagging program, under an EFP, is a way to address the concern about the increasing level of uncertainty in model parameter estimates.                 

*Comment 6:*                     One commenter states that NMFS is justifying closure based in part on data showing a decline in the recruitment of 2-yr old lobsters at Necker Island over the last decade, in spite of rising commercial catch per unit of effort (CPUE). This commenter states that NMFS has not presented confidence intervals to determine the validity of the declining trend, and suggested that NMFS should conduct a statistical power test on the number of trap-hauls at Necker to address the 50                           ( print page 39316)                        percent change in population abundance.                 

*Response:*                     NMFS believes that while confidence intervals were not provided in the lobster recruitment data for Necker Island, the declining trend shown by the data is obvious and part of the basis for closing the NWHI lobster fishery. The other strong rationale for closing the fishery include the increasing uncertainty associated with several parameters of the model used to estimate exploitable population size (i.e., catchability) and violations of several of the model's underlying assumptions. Nonetheless, NMFS intends to provide confidence intervals and conduct a power test on the Necker lobster data.                 

*Comment 7:*                     A commenter states that NMFS' failure to announce the 2000 lobster harvest guideline by the end of February resulted in unnecessary stress on the NWHI lobster permit holders and that closure of the fishery will impose economic hardship on the fishermen.                 

*Response:*                     The need to close the fishery became apparent as NMFS analyzed the lobster data while calculating the 2000 harvest guideline. NMFS is sensitive to the economic hardship some fishermen may face as result of the closure, but notes that the closure is expected to promote a sustainable fishery having greater positive impacts on revenues and fishermen in the long term.                 

*Comment 8:*                     A commenter strongly opposes closure of the fishery, but said that if NMFS proceeds to close the fishery, the NWHI Area 4 lobster fishing grounds should be included in the EFP. In addition, NMFS should provide the scientific background to support an EFP harvest level substantially below 88,270 lobsters, and that NMFS should provide assurance that the 2000 EFP will enable the development of an improved population model.                 

*Response:*                     For 2000, NMFS does not intend to allow lobster harvest in Area 4 because NMFS scientists are unable to compute an allowable level of harvest appropriate under an EFP. NMFS is preparing a NWHI lobster research plan and intends to consult with the Council prior to implementation of an EFP. This consultation will include the scientific background on the harvest levels for Necker Island, Maro Reef, and Gardner Pinnacles under an EFP. NMFS plans to develop a sampling plan for Area 4 beyond the year 2000. The scientific and fishery information obtained through the EFP will be used to replace or improve the current NWHI lobster stock assessment model.                 

*Comment 9:*                     A commenter feels that there should be an explanation of the scientific process by which NMFS implemented the “precautionary approach” to offset an increase in uncertainty of model parameters, including the transparency of the estimation process.                 

*Response:*                     The scientific rationale for NMFS' proposed closure is contained in a memorandum, dated February 3, 2000, from the NMFS Southwest Fisheries Science Center Director (See Response 1). Also, NMFS scientists discussed the proposed closure of the lobster fishery in open meetings with the Council and its Scientific and Statistical Committee. Details on the population estimation algorithms are available in Amendments 7 and 9 to the FMP.                 

*Comment 10:*                     The increase in uncertainty in model parameters should be quantified.                 

*Response:*                     The term “uncertainty” is used in this context to reflect apparent violations and shortcomings of the model's assumptions and doubt as to the resulting calculations. It does not refer to statistical uncertainty and thus cannot be computed or quantified.                 

*Comment 11:*                     One commenter requests the exact Magnuson-Stevens Act citation that allows for a “precautionary closure.”                 

*Response:*                     The Magnuson-Stevens Act does not use the term “precautionary” in this context; however, it is used in the national standard guidelines governing fishery management plans and their implementing regulations at 50 CFR 600.31(f)(5). The term “precautionary” is used in this context to describe NMFS' proposed action in light of the increased uncertainty to ensure that the lobster stocks are not overfished. A closure is “precautionary” in the sense that there is less risk to the lobster stocks in closing the fishery than in using the current model to derive a harvest guideline. Under the discretionary provisions of section 303 of the Magnuson-Stevens Act, a fishery management plan may designate zones where, and periods when, fishing shall be limited, or shall not be permitted; establish specified limitations on the catch of fish which are necessary and appropriate for the conservation and management of the fishery; prohibit the use of specified types and quantities of fishing vessels; and prescribe such other measures, requirements, or conditions and restrictions that are determined to be necessary and appropriate for the conservation and management of the fishery.                 

*Comment 12:*                     A commenter wonders to what extent NMFS is working “collusively” with the environmental community under threat of litigation to close the fishery to protect marine mammals.                 

*Response:*                     There have been no collusive or secret agreements between NMFS and the environmental community or anyone else to close the lobster fishery under threat of litigation. NMFS proposed to close the fishery based on concerns for the potential of overfishing the lobster resources.                 

*Comment 13:*                     A commenter asks what the agency has done in the past year, and what it plans to do this year (aside from planning an experimental fishery) to address the uncertainty in model parameters                 

*Response:*                     NMFS conducted a lobster research survey and tagged lobster in 1999; a similar survey will be conducted in 2000. In addition, the agency is continuing lobster research at Necker Island utilizing the tag, release, and recapture of spiny lobsters. NMFS is also reassessing the model used to estimate exploitable lobster populations with the objective of refining the model, its assumptions, and parameter estimates. Improvements to the existing model are anticipated in the future.                 

*Comment 14:*                     A commenter notes that the Marine Mammal Commission, which previously recommended a 3-year closure because of its belief that the lobster fishery effects prey resources important to the recovery of the endangered Hawaiian monk seal, commented that the proposed closure for the year 2000 is a step toward this recommendation.                 

*Response:*                     NMFS is closing the fishery because of the potential for overfishing the lobster resources in the NWHI. NMFS believes there is insufficient data at this time to support statements that the fishery affects an important source of prey for any species of marine mammal including the Hawaiian monk seal.                 

*Comment 15:*                     A commenter states that the downward trend of lobster CPUE demonstrates that the lobster stock needs time to rebuild, and that there should be a 3-year closure to allow rebuilding of the lobster stocks.                 

*Response:*                     To a large degree, the declining trend in lobster CPUE has been attributed to a large-scale shift in the Pacific Ocean ecosystem as it changed from a more productive state to a less productive one. Similar declines in population size have been detected for reef fish and bird populations throughout the Pacific Basin (see: Polovina, et al., 1994 Physical and biological consequences of a climate event in the central North Pacific. Fish. Oceanogr. 3(1):15-21)                 

*Comment 16:*                     A commenter is concerned that depletion of the NWHI                           ( print page 39317)                        lobster resource has been implicated in the death of certain (emaciated) monk seals.                 

*Response:*                     As previously stated, the basis for closing the fishery is due to NMFS' concerns about the potential for overfishing the lobster resources. NMFS believes there are insufficient data at this time to support statements that lobster represents an important source of prey for any species of marine mammal, including the Hawaiian monk seal.                 

*Comment 17:*                     A commenter feels that depletion of lobster resources may be having negative effects on species of other trophic levels and may have compromised the predator/prey relationship of other species (e.g., reef fish, sharks and mollusks) in areas where lobster populations are especially depressed.                 

*Response:*                     The fishery is not being closed due to depletion of lobster resources, rather it is being closed as a precautionary action to prevent such an event from occurring. At this time, there are no scientific data that indicate the commercial lobster fishery is having a negative impact on the trophic levels or predator/prey relationships in the reef ecosystem of the NWHI. Future research should provide answers to any assertions regarding the impacts the fishery may be having on the trophic levels and predator-prey relationships in the NWHI coral reef ecosystem.                 

*Comment 18:*                     A commenter recommends that there be a moratorium until an appropriate experimental fishery program is developed and approved.                 

*Response:*                     NMFS agrees. NMFS is developing an EFP to obtain a reliable estimate of the exploitable population of lobsters in the NWHI. The results of the EFP will help enable NMFS to manage the lobster fishery on a sustainable basis for the long term.                 

*Comment 19:*                     A commenter supports closure, stating that the fishery has already been severely overfished, affecting not only lobster stocks but also monk seals that rely in part on lobster as an important food source.                 

*Response:*                     The fishery is being closed because of concerns about the potential for overfishing the lobster resources. The data do not support the statement that the fishery is or has been overfished or that lobster represents an important source of prey for any species of marine mammal, including the Hawaiian monk seal.                 

*Comment 20:*                     A commenter opposes any form of an experimental fishery in 2000 that would deplete the lobster stocks, stating that such a fishery is unwise and would present unacceptable risk to the lobsters and monk seals.                 

*Response:*                     NMFS will make available its complete analysis of any experimental fishery proposal prior to its implementation. Lobster harvest levels under an EFP will be determined solely on the basis of scientific needs and will be set at conservative levels.                 

## Classification 

The Assistant Administrator for Fisheries, NOAA, under 5 U.S.C. 553(d)(3), finds for good cause, namely the need to have the final rule in place on or before July 1, 2000, the scheduled opening of the lobster fishing season, would make a 30-day delay in effective date contrary to the public interest. Accordingly, the rule is being made effect on July 1, 2000. This emergency rule has been determined to be not significant for purposes of Executive Order 12866. 

NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) that described the impact the proposed rule would have on small entities (65 FR 24906, April 28, 2000). No comments were received on the IRFA. A FRFA has been prepared in compliance with 5 U.S.C. 604(a). The reasons for, objectives of, and legal basis for this rule are described elsewhere in this preamble. 

The FRFA discusses the economic impacts under the following scenarios: (1) Alternative 1— the fishery opens on July 1, 2000, with a harvest guideline of 243,100 lobsters (spiny and slipper lobsters combined) distributed among the four established lobster grounds (as in 1999) as follows: Necker Island, 54,600 lobsters; Gardner Pinnacles, 27,690 lobsters; Maro Reef, 89,570 lobsters; all other NWHI lobster grounds combined (Area 4), 71,240 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, zero lobsters; (3) Alternative 3—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 Pinnacles, 28,860 lobsters; Maro Reef, 85,150 lobsters; and all other NWHI lobster grounds combined, 22,230 lobsters; and (4) Alternative 4 (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 the 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 engage in other fisheries, the NWHI lobster fishery occurs during a comparatively slow season for their alternate fisheries; therefore, the lobster fishery represents an important component of the participants' 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 it may be roughly equal to 25 percent to 33 percent (3 to 4 months) of their annual gross revenues. 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 permit holders who will be impacted by the closure of the fishery are the 13 individuals who currently hold NWHI crustacean fishery limited entry permits. Currently, these permit holders own a total of 10 vessels that are registered with lobster fishing permits. In the past two seasons, five vessels fished for lobsters in 1998 and six vessels fished in 1999 (only one vessel participated in the lobster fishery during both seasons). Nonetheless, all permit holders will be vulnerable to reductions in the value of their permits. Seasonal markets for NWHI lobsters 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. Assuming a 10 percent profit margin, a fishery closure that results in a loss of $1.2 million in ex-vessel product would represent an estimated net loss of $120,000 to shoreside processors and wholesalers.                           ( print page 39318)                        Despite these negative impacts, the preferred alternative is expected to promote a sustainable fishery that is anticipated to result in 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.                 

                    Alternatives 1, 2, and 3 were rejected because they do not address concerns about the potential for overfishing the lobster resources in a sufficiently precautionary manner. However, NMFS scientists have expressed concern over the lack of data that would result from a complete prohibition of all lobster fishing activities, and are developing a research plan for an experimental fishery program (EFP) that would enable NMFS to continue to collect data for lobster stock assessment in a controlled manner. The results of an EFP are expected to enable the Council and NMFS to make informed management and conservation recommendations on the NWHI lobster resource and fishery in the future. NMFS is considering a 2000 experimental lobster fishery which, if approved, will be assessed prior to implementation. A copy of the FRFA is available from NMFS (see                     **ADDRESSES**                    ).                 

An informal consultation under the Endangered Species Act was concluded for this action on April 18, 2000. As a result of the informal consultation, the Regional Administrator concluded that the emergency closure of the fishery will have no effect on federally listed species and will not result in the destruction or modification of designated 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: June 20, 2000. 

Penelope D. Dalton, 

Assistant Administrator for Fisheries, National Marine Fisheries Service. 

For the reasons set forth in the preamble, 50 CFR part 660 is amended 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 a new paragraph (c) is added to read as follows: 

§ 660.45

* * * * *

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

§ 660.48

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

§ 660.50

4. Section 660.50 is suspended effective from July 1, 2000, through December 31, 2000. 

[FR Doc. 00-16111 Filed 6-23-00; 8:45 am] 

BILLING CODE 3510-22-F