[Federal Register Volume 65, Number 123 (Monday, June 26, 2000)]
[Rules and Regulations]
[Pages 39314-39318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16111]


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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


Fisheries Off West Coast States and in the Western Pacific; 
Western Pacific Crustacean Fisheries; Northwestern Hawaiian Islands 
Lobster Fishery; Closure of the Year 2000 Fishery

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

ACTION: Final rule; emergency closure.

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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,

[[Page 39315]]

fax 808-973-2941, e-mail [email protected].

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

[[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

[[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.

[[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 Sec. 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:


Sec. 660.45  Closed seasons.

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


Sec. 660.48  [Amended]

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


Sec. 660.50  [Suspended]

    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