[Federal Register Volume 63, Number 71 (Tuesday, April 14, 1998)]
[Rules and Regulations]
[Pages 18139-18144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-9767]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 970523122-8022-02 ; I.D. 041897B]
RIN 0648-AH52
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Shrimp Fishery of the Gulf of Mexico; Amendment 9
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to implement Amendment 9 to the
Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico
(FMP). Amendment 9 requires, with limited exceptions, the use of
certified bycatch reduction devices (BRDs) in shrimp trawls in the
exclusive economic zone (EEZ) in the Gulf of Mexico shoreward of the
100-fathom (fm) (183-m) depth contour west of 85 deg.30' W. long.; sets
the bycatch reduction criterion for the certification of BRDs; and
establishes an FMP framework procedure for modifying the bycatch
reduction criterion, for establishing and modifying the BRD testing
protocol and its specifications, and for certifying and decertifying
BRDs. The intended effect is to reduce the bycatch mortality of
juvenile red snapper, while, to the extent practicable, not adversely
affecting the shrimp fisheries in the Gulf of Mexico.
DATES: This rule is effective May 14, 1998.
ADDRESSES: Copies of the final regulatory flexibility analysis and
NMFS' Supplement to the Economic Analysis of Amendment 9 to the Fishery
Management Plan for the Shrimp fishery of the Gulf of Mexico, U.S.
Waters (March 20, 1998) may be obtained from the Southeast Regional
Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702.
Copies of Amendment 9, which includes a regulatory impact review, a
social impact assessment, a fishery impact statement, and a
supplemental final environmental impact statement, may be obtained from
the Gulf of Mexico Fishery Management Council, 3018 U.S. Highway 301
North; Suite 1000, Tampa, FL 33619-2266; Phone: 813-228-2815; Fax: 813-
225-7015.
FOR FURTHER INFORMATION CONTACT: Michael E. Justen, 813-570- 5305.
SUPPLEMENTARY INFORMATION: The FMP was prepared by the Gulf of Mexico
Fishery Management Council (Council) and is implemented under the
authority of the Magnuson-Stevens Fishery Conservation and Management
Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
On April 29, 1997 (62 FR 23211), NMFS announced the availability
for public review and comment of (1) Amendment 9, including a
regulatory impact review (RIR), an initial regulatory flexibility
analysis (IRFA), a social impact assessment (SIA), a fishery impact
statement (FIS), and final supplemental environmental impact statement
(FSEIS), as prepared and submitted by the Council for review, approval
and implementation, and (2) a minority report submitted by three
Council members. On July 2, 1997, NMFS published a proposed rule to
implement the measures in Amendment 9 and requested comments on the
proposed rule (62 FR 35774). The background and rationale for the
measures in Amendment 9 and the proposed rule are contained in the
preamble to the proposed rule and are not repeated here. After
consideration of the comments on Amendment 9 and the proposed rule,
NMFS approved Amendment 9 on July 30, 1997. In support of this final
rule, NMFS prepared a supplement to the economic analysis of Amendment
9 (March 20, 1998) (See ADDRESSES).
Comments and Responses
Comments were received from 3,329 entities on Amendment 9 and its
proposed rule. These entities consisted of 3,279 private individuals,
shrimp vessel owners and crews, industry support personnel, and
business owners; 16 U.S. Congressmen; 14 conservation organizations;
eight commercial fishing or business- related organizations; three
recreational fishing organizations; three members of the Council; two
cities (Port Isabel and Aransas Pass, TX); one bank; and three Federal
agencies.
Approval and Implementation of Amendment 9
Comment: Five hundred sixty-six entities supported approval and
implementation of Amendment 9. These entities endorsed the use of NMFS-
certified BRDs in shrimp trawls to reduce shrimp trawl bycatch as a
means of facilitating the recovery of impacted fish populations, such
as red snapper, in the Gulf of Mexico. These entities consisted of 546
private individuals, three Federal agencies, three recreational fishing
organizations, and 14 conservation organizations.
Response: NMFS agrees, and approved Amendment 9, which is
implemented by this final rule.
Required Use of BRDs in Shrimp Trawls in the Waters East of
85 deg.30' W. Long.
Comment: Eight conservation organizations recommended that NMFS
require the use of BRDs in shrimp trawls in the waters east of
85 deg.30' W. long., (i.e., east of Cape San Blas, FL) to reduce the
incidental catch of finfish in this area. This would facilitate the
recovery of impacted finfish populations.
Response: NMFS disagrees. The Council limited the geographical
scope of the BRD requirement under Amendment 9 to west of Cape San
Blas,
[[Page 18140]]
FL, because most red snapper bycatch in the shrimp fisheries occurs in
this area. If new scientific information indicates that the use of BRDs
should be expanded to beyond east of Cape San Blas, FL, the Council may
then propose such action by preparing an FMP amendment, supported by an
appropriate administrative record, that would be submitted to NMFS for
review, approval, and implementation.
The Council Minority Report and Other Opposition to Amendment 9
Comment: Three Council members submitted a minority report opposing
Amendment 9 that contended that: (1) The Council did not consider best
available scientific data; (2) the Council made serious procedural and
legal errors in proceeding with submission of Amendment 9 for review by
NMFS because its Scientific and Statistical Committee (SSC) did not
have a quorum when it met to review Amendment 9 prior to the Council
meeting in November 1996 when it adopted Amendment 9, and because
Amendment 9 does not assess the impact of BRDs on Gulf of Mexico
communities; (3) Amendment 9 is not necessary for the recovery of red
snapper; (4) the shrimp industry is being required to bear an unfair
regulatory burden compared to the participants in the directed red
snapper fisheries; and (5) the economic impacts of requiring BRDs in
shrimp trawls will severely affect the shrimp industry and the United
States economy.
Opposition to Amendment 9 from the remaining commenters focused on
one or more of the same concerns stated in the minority report. Sixteen
Congressmen filed comments and 2,682 private individuals, shrimp vessel
owners and crews, industry support personnel, and business owners
submitted form letters opposing Amendment 9. Eight commercial fishing
or business- related associations, owners of 14 companies, one bank, 36
private individuals, and the cities of Port Isabel and Aransas Pass,
TX, submitted letters opposing approval of Amendment 9.
Response (1): NMFS disagrees that Amendment 9 is not based on the
best available scientific information. The Director, Southeast
Fisheries Science Center, determined that Amendment 9 was based on the
best available scientific information. The General Linear Model (GLM)
method of analyzing bycatch data was peer reviewed in 1990, 1992, and
1997. The 1990 peer review was at the request of the Council. The 1992
peer review was done under the direction of the Technical Steering
Committee of the regional Cooperative By catch Research Program,
administered by the Gulf and South Atlantic Fisheries Development
Foundation, Inc., a non-profit, educational and scientific research
organization. In each case, the recommendation of the peer reviewers
was to use the GLM method. The 1997 peer review was done under the
direction of the Council at the request of Texas Shrimp Association
(TSA) representatives. This review was conducted in two phases. The
first phase consisted of the presentation of data and analyses by NMFS
and TSA's consultant, LGL Ecological Research Associates, Inc. (LGL),
to a peer review panel for evaluation by each individual panel member.
In the second phase, these panel members' evaluations, along with
responses from LGL and NMFS, were then presented to the Council's Stock
Assessment Panel (SAP) for its review and recommendations to the
Council's SSC and to the Council.
The 1997 peer review panel members generally supported the GLM
approach but provided recommendations on alternative means of using the
available data that might improve the red snapper by catch estimates.
NMFS addressed these recommendations in a presentation to the SAP. The
peer review panel members' recommendations usually resulted in
increases in the red snapper bycatch estimates, not decreases as had
been assumed by LGL. The conclusion of the SAP, the SSC, and the
Council was that the original red snapper bycatch estimates represented
the best available scientific data.
In addition to the 1997 peer review of the bycatch estimates, the
Council contracted with Dr. Phil Goodyear, a prominent stock assessment
biologist, to review the 1995 stock assessment and to determine the
effects of over-estimates of red snapper bycatch on the scientific
advice that bycatch had to be reduced to recover this species. Dr.
Goodyear's sensitivity analysis showed that even with overestimates of
bycatch up to 33 percent, red snapper bycatch in the shrimp fisheries
still had to be reduced significantly for red snapper stock recovery.
Based on these peer review results and on all other available
information, the Council concluded that Amendment 9 is based on the
best available scientific information.
Response (2): NMFS disagrees that the Council made serious
procedural and legal errors in submitting Amendment 9 for agency review
and approval. NMFS reviewed the administrative record and determined
that there were no legal or procedural impediments to approval and
implementation of Amendment 9. The SSC and Reef Fish SAP met after the
Council's November 1996 meeting and endorsed Amendment 9. The Council
was aware the SSC lacked a quorum and considered that fact. The SSC's
recommendations are not binding on the Council; however, in this
instance, they were consistent with the Council's action and
administrative record.
Regarding the assessment of Amendment 9 regulatory impacts on Gulf
of Mexico communities, the Council prepared the following analyses of
impacts in support of its proposed amendment: IRFA, RIR, FIS, SIA, and
FSEIS. The IRFA thoroughly assessed the economic impact of BRDs in
shrimp trawls on small entities as required under the Regulatory
Flexibility Act and concluded that Amendment 9 would adversely impact a
substantial number of small entities in the Gulf of Mexico shrimp
fisheries. The RIR clearly estimated the economic and social impacts of
requiring the installation of BRDs in shrimp trawls on Gulf of Mexico
shrimp fisheries as well as the economic impacts of alternatives
considered by the Council. The RIR concluded that there would be
adverse economic impacts on the Gulf shrimp fisheries as well as
potential long-term economic benefits to the commercial red snapper
fisheries. As noted in the SIA, participants in the shrimp fisheries
believe that impacts associated with requiring BRDs will be negative.
The Council was aware of the potential adverse economic impact of BRDs
on the shrimp fisheries, but believed that reduction of the red snapper
bycatch was necessary to allow the directed red snapper fisheries to
continue while allowing rebuilding of the overfished red snapper
resource. In complying with national standard 9 (minimizing bycatch
mortality to the extent practicable), the Council, consistent with
national standard 8, minimized the adverse economic and social impacts
on the shrimp fisheries, including fishing communities, by limiting the
BRD requirement to the geographical area where red snapper and shrimp
are found together; namely, Federal waters west of Cape San Blas, FL,
out to 100 fm (183 m) to the border with Mexico. With this geographical
limitation, the Council concluded that the adverse economic and social
impacts of BRDs on the Gulf of Mexico shrimp fisheries would be offset
by positive biological, ecological, economic, and social impacts of the
Gulf of Mexico red snapper fisheries based on a rebuilt red snapper
stock. Finally, the FIS succinctly states the overall impact of
Amendment 9 on fishery participants
[[Page 18141]]
and fishing communities regarding both Gulf of Mexico shrimp and red
snapper fisheries.
Response (3): NMFS disagrees that implementation of Amendment 9 is
unnecessary for the recovery of the red snapper resource in the Gulf of
Mexico. Stock assessments prepared in 1988, 1990, and 1995 determined
the status of the stock and clearly indicated that red snapper could
not recover to the 20- percent spawning potential ratio (SPR) level by
2019 without a significant reduction in bycatch. At the 20-percent SPR
level, the stock would no longer be considered overfished under the
current provisions of the Fishery Management Plan for the Reef Fish
Resources of the Gulf of Mexico (Reef Fish FMP). The year 2019 is the
Reef Fish FMP's target date for recovery of the stock to the 20-percent
SPR level. Under the 1996 amendments to the Magnuson-Stevens Act, the
red snapper stock will, in all likelihood, have to be rebuilt to a
level above 20-percent SPR. Regulatory actions to date to rebuild the
red snapper stock have been limited to controlling the directed
recreational and commercial harvest of red snapper. There is also a
need to control the significant bycatch of juvenile red snapper in
trawls.
Response (4): NMFS disagrees that the shrimp industry is being
required to bear an unfair regulatory burden compared to the
participants in the directed red snapper fisheries. Shrimp trawls have
a significant bycatch of non-target finfish and invertebrates, most of
which are discarded dead. Scientific survey results indicate that the
ratio of the weight of finfish bycatch to that of shrimp caught is
about 4.2 to 1. The best available information indicated that
elimination of the directed harvest for red snapper would not allow the
overfished resource to recover by 2019. Therefore, some device is
needed that would reduce the incidental catch of juvenile red snapper
in shrimp trawls by 44 percent to allow the overfished red snapper
stock to recover.
Response (5): NMFS and the Council agree that requiring the use of
BRDs in the Gulf of Mexico shrimp fisheries will result in negative
economic impacts on the shrimp industry. The IRFA concluded that
Amendment 9 would result in significant adverse impacts on a
substantial number of small business entities that participate in the
Gulf of Mexico shrimp fisheries. In particular, the IRFA concluded that
revenues of a large portion of the small businesses in the shrimp
fisheries would be reduced by at least 5 percent and that from 0.3 to
7.8 percent of the shrimp-harvesting businesses could cease operations
(depending on the type of BRD they elected to use) if the rule is
implemented.
The RIR estimated that if the use of BRDs in shrimp trawls is
required, there would be a long-term net loss in benefits to the shrimp
fisheries of $117 million assuming that all shrimpers use the fisheye
BRD and that the shrimp loss rate with that BRD is 3 percent. If other
BRDs are certified with higher or lower shrimp loss rates, the net loss
would differ depending on the mix of BRDs used. The analysis in
Amendment 9 was based on an expectation that this $117 million net loss
to the shrimp fisheries would be offset by a net benefit to the
commercial red snapper fisheries of roughly $118 million, assuming that
these fisheries are managed to maximize economic benefits (e.g., under
an individual transferable quota (ITQ) management system). In the
short-term (i.e., 1-4 years), annual adverse impacts on the shrimp
fisheries due to use of the fisheye BRD would range from about $40
million in the first year to $20 million in the fourth year. Most of
the net loss to the shrimp fisheries would have occurred by 2019, the
current target date for rebuilding the overfished red snapper resource.
The net loss to the shrimp fisheries includes adverse impacts on the
shrimp industry and consumers, although the greatest proportion of the
adverse impacts would be borne by the shrimp industry. Subsequently,
NMFS prepared a supplement to the economic analysis for Amendment 9 to
further examine the effects on the red snapper commercial fisheries
from 1998 though 2019 (see ADDRESSES). Executive Order 12866 typically
requires that all changes in net benefits be measured against the
status quo. In the case of the red snapper and shrimp fisheries, the
staus quo is a total allowable catch (TAC) of 9.12 million lb and no
BRD requirement. In addition to analyzing the effects under scenarios
of ITQ management and no ITQ management, and under TACs for red snapper
of 9.12 million lb and 6.0 million lb, benefits were also measured for
a baseline of a zero TAC for red snapper. The benefit of the status quo
alternative of no BRD requirement and a TAC of 9.12 million lb would be
$58 million. If ITQ management is added to that baseline, the benefit
of the BRD rule to the red snapper fisheries would be an increase of
$35 million or a total of $93 million. In summary, using the 1998
status quo TAC of 9.12 million lb for red snapper, the benefits to the
commercial red snapper fisheries as measured against the zero TAC
baseline amounts to an increase of $93 million with ITQ management and
$58 million without ITQ management. The expanded analysis made no
determination regarding changes in benefits to the recreational red
snapper fisheries, did not include benefits accruing after 2019 when a
larger TAC is expected, and also did not attempt to calculate benefits
to the finfish stocks that would benefit in a biological sense from by
catch reduction.
The SIA concluded that Gulf of Mexico shrimp fishermen were
experiencing a high level of work-related stress in 1994 versus 1987
due to a variety of factors, including the required use of turtle
excluder devices (TEDs), and that additional regulations, such as
requiring the use of BRDs, would further raise fishermen's stress
levels. The SIA also found that if BRD use increases shrimping
efficiency and reduces fishermen's workload (because of a reduced need
to cull finfish from the shrimp catch), then stress levels may
decrease. Further, according to the SIA, if fishermen take advantage of
public hearings and other opportunities (i.e., workshops) to become
fully involved in the further development and testing of BRDs and in
modifying the bycatch criteria, they should be more willing to accept
and comply with bycatch regulations.
The FIS summarized the overall negative impact of Amendment 9 on
the shrimp fisheries and summarized the relevant findings of the IRFA,
RIR, and SIA.
As required by national standard 8 of the Magnuson-Stevens Act, the
Council considered the importance of the shrimp fisheries to the
fishing communities and provided for the sustained participation of
such communities. Also, the Council minimized adverse economic and
social impacts on the shrimp fisheries and associated communities by
requiring the use of BRDs only to the area where juvenile red snapper
currently are concentrated (Federal waters shoreward of the 100 fm (183
m) curve and west of Cape San Blas, FL, to the Mexican border).
Additionally, certain shrimping operations were exempted from the BRD
requirements because they do not result in significant mortalities of
juvenile red snapper. A shrimp trawler is exempted from the requirement
to have a certified BRD: 1) Installed in each net provided that at
least 90 percent (by weight) of all shrimp on board or offloaded from
such trawler are royal red shrimp; 2) installed in a single try net
with a headrope length of 16 ft (4.9 m) or less provided the single try
net is either pulled immediately in front of another net or is not
connected to another net; or 3)
[[Page 18142]]
installed in up to two rigid- frame roller trawls that are 16 ft (4.9
m) or less in length used or possessed on board. Finally, the Council
held 14 public hearings where commercial shrimping associations made
numerous presentations that the Council carefully considered before
adopting final measures to reduce the shrimp trawl fishery finfish
bycatch.
Commercial Shrimp Fisheries Are Major Sources of Employment and
Businesses to Residents of the Coastal Areas of the Gulf of Mexico
Comment: Sixteen congressmen, 2,682 shrimp fishermen, support
industry personnel, vessel owners, and private individuals, 8
commercial associations, owners of 14 companies, one bank, 36 private
individuals, and the cities of Port Isabel, and Aransas Pass, Texas,
stated that commercial shrimp fisheries are major sources of employment
and businesses for hundreds of thousands of residents.
Response: NMFS recognizes the importance of the shrimp and red
snapper fisheries to fishermen, support industries, businessmen,
coastal communities, and states.
Number of BRDs Available
Comment: Sixteen Congressmen and one commercial shrimp association
objected that, with the decertification of the Andrews TED in December
1997, there is only one BRD, the fisheye, available for fishermen to
use.
Response: Since the Council adopted Amendment 9 on November 14,
1996, for submission to NMFS, the Southeast Fisheries Science Center
has analyzed the data on the performance of a new BRD (Jones-Davis) and
has recommended that the Regional Administrator, Southeast Region, NMFS
(Regional Administrator), certify this BRD as meeting the bycatch
reduction criterion of Amendment 9. Upon promulgation of a BRD testing
and certification protocol by separate final rule in early 1998, this
BRD may be certified for use under the FMP's framework procedure for
regulatory adjustments. Additionally, three modified Andrews TEDs
recently passed field tests for the exclusion of turtles, and it is
anticipated that at least one of these TEDs may be certified as a BRD
early in 1998.
Neutral Panel to Review Status of Red Snapper and Impact of Shrimp
Trawl Bycatch
Comment: One Congressman, two commercial shrimping associations,
and one shrimp business owner recommended that NMFS and LGL present
their respective conflicting scientific information on the status of
the red snapper resource, data problems, and other technical issues to
a neutral scientific panel for review and evaluation. This panel would
render an opinion on the quality of the science and the need for the
BRD requirement.
Response: Further reviews are not needed. There have been three
assessments of the red snapper stock (1988, 1990, and 1995) in the Gulf
of Mexico. Each assessment report concluded that the red snapper
resource was overfished and the major contributing factor was shrimp
trawl bycatch. In addition, the juvenile red snapper bycatch estimating
procedures were peer reviewed in 1990, 1992, and 1997, and the
Council's SAP and SSC participated in reviewing all of the scientific
information and data associated with the red snapper assessments. See
the response above regarding the best available data and the three
independent peer review panels and their review of the shrimp fishery
bycatch data and the analytic models used for bycatch estimation.
Furthermore, two congressionally-mandated studies on the red
snapper stock and shrimp fishery bycatch were completed in December
1997. The first study, as required by the Magnuson- Stevens Act,
consisted of a thorough and independent peer review of the scientific
and management bases for conserving and managing the red snapper
fisheries in the Gulf of Mexico. The final consolidated peer review
report concluded that the red snapper stock in the Gulf of Mexico is
severely overfished, and that both directed fishing effort and juvenile
red snapper bycatch in the shrimp fisheries must be reduced in order
for the red snapper stock to recover. These peer review conclusions
were based, in part, on a review of the results of the second study.
The second study was an independent red snapper stock assessment
required by agency appropriations legislation. This independent red
snapper stock assessment noted that the shrimp fishery bycatch of red
snapper is significant, but concluded that the stock appears to be
healthy in that average red snapper size may be increasing and that
recruitment appears to be increasing in recent years. The Science and
Management Panel, one of three independent review panels, reviewed the
preliminary results of this independent red snapper stock assessment.
That panel concluded the analysis was incomplete because it did not
correctly factor in the impact of the large red snapper bycatch in the
Gulf of Mexico shrimp fishery.
Cumulative Cost of TEDs and BRDs to Shrimpers
Comment: Sixteen congressmen, one commercial shrimping association,
and one shrimp fleet owner stated that the shrimp industry is bearing
large costs associated with reducing their incidental catch and kill of
endangered or threatened sea turtles, and Amendment 9 does not quantify
the cost to industry associated with TEDs.
Response: The baseline for Amendment 9's economic analysis of the
impacts of the BRD requirements on the shrimp industry is the industry
with its present regulatory burden. The RIRs done as part of the rules
that implemented the TED requirements detail the economic impacts
expected to result from the TED requirements on the Southeast shrimp
fisheries.
Statement of Dr. Phil Goodyear Regarding Role of Shrimp Fishery in
Causing Overfished Condition of Red Snapper
Comment: One commercial fishing association and one shrimp fleet
owner contended that at the Council meeting held on May 12, 1997, Dr.
Phil Goodyear, a reef fish biologist under contract to the Council,
stated that the commercial shrimp fishery was not responsible for the
overfished condition of the red snapper resource and that, instead, the
fishermen in the directed fishery for red snapper were responsible.
Response: NMFS disagrees. Dr. Goodyear stated at this meeting that
the combined effect of excessive mortalities caused by directed fishing
by the red snapper fisheries and bycatch by the shrimp fisheries are
causing the overfished condition of the resource. NMFS points out that
the shrimp trawl fishery removes about 88 percent of the red snapper
population. The remaining 12 percent is the basis for the spawning
stock and the directed fishery.
Modification of the Bycatch Reduction Criterion
Comment: One shrimp vessel owner contended that the establishment
of the Special BRD Advisory Panel (AP) is redundant and will supplant
the Shrimp and Reef Fish APs.
Response: NMFS disagrees. This BRD AP will be composed of
scientists, engineers, environmentalists, fishermen, or others with
knowledge of BRDs and their ability to reduce bycatch of red snapper
and will advise the Council on the need for adjustments in the bycatch
reduction criterion. Amendment 9 does not contain any statement that
the Council intends for this panel to replace or to override the
recommendations of the Shrimp and Reef Fish APs or vice versa.
Shrimp Vessel Costs and Returns
[[Page 18143]]
Comment: One commercial shrimping association and one shrimp vessel
owner stated that the preamble to the proposed rule contained
information that would allow a reader to conclude that the annual pre-
tax profit margin per shrimp vessel is $102,000 or 51 percent of annual
revenue. The commenters indicated that this figure is not correct and
gives the impression that shrimpers can easily afford to use BRDs in
their nets. Furthermore, they contend that new information on vessel
costs and returns in a NMFS report of May 1997 should have been used.
They claim this new information shows that shrimpers are not
financially able to withstand the income losses associated with BRDs.
Response: NMFS agrees that the information in the preamble to the
proposed rule (62 FR 35778) could allow a reader to conclude that the
pre-tax profit margin per vessel is $102,000 or 51 percent of annual
revenue. However, Amendment 9 contains the appropriate cost and earning
information for shrimp vessels (Table R-4). The range in annual gross
revenue per vessel is from $8,389 to $220,412, with an average of
$43,002. Annual net revenue per vessel ranged from $2,249 to $41,881,
with an average of $6,564. The net revenue figures did not include
taxes so they roughly estimate the pre-tax profit margin. Thus, the
average pre-tax margin was 15 percent, not 51 percent of revenue. When
the Council finalized Amendment 9 in November 1996, the May 1997 report
was not available. For information on the adverse impact of BRDs on the
shrimp fishery, see the above response regarding economic impacts on
the shrimp industry and the United States.
Exemption for Vessels Using Rigid-Frame Roller Trawls
Comment: One shrimp fisherman questioned why the exemption from the
BRD requirement for rigid-frame roller trawls should not apply to his
gear. This fisherman fishes off Pasco, Hernando, and Citrus Counties,
FL, and uses four rigid-frame roller trawls. He states that his four-
trawl rig scares fish away and thereby minimizes bycatch.
Response: The exemption for rigid-frame roller trawls applies only
to the use of up to two such trawls. However, the BRD requirement
applies only west of Cape San Blas, FL. BRDs are not required in waters
east of Cape San Blas, FL.
Changes From the Proposed Rule
Certification of the Andrews TED as a BRD is removed in this final
rule. In the proposed rule, the Andrews TED was proposed to be
certified as a BRD ``only during a time when and in a geographical area
where it is an approved TED.'' Effective December 19, 1997, approval of
the Andrews TED was withdrawn.
Classification
The Regional Administrator, with concurrence by the Assistant
Administrator for Fisheries, NOAA, has determined that Amendment 9 is
necessary for the conservation and management of the shrimp fisheries
of the Gulf of Mexico and that it is consistent with the Magnuson-
Stevens Act and other applicable law.
This rule has been determined to be significant for purposes of
E.O. 12866.
The Council prepared an FSEIS for Amendment 9; a notice of its
availability was published by the Environmental Protection Agency on
June 6, 1997 (62 FR 31098). The FSEIS assesses the impacts on the human
environment of both the Gulf shrimp fisheries and the Council's
proposed and alternative management measures for reducing bycatch in
the shrimp fisheries. Those impacts were summarized in the proposed
rule and are not repeated here. No comments were received on the FSEIS.
NMFS prepared a FRFA based on the Council-prepared IRFA that
described the impacts the proposed rule would have on small entities,
if adopted. Based on the IRFA, NMFS concluded that Amendment 9, if
approved and implemented through final regulations, would have
significant economic impacts on a substantial number of small entities.
During the public comment periods on Amendment 9 and its proposed
implementing regulations, no public comments were received that
disagreed with the analysis or conclusions of the IRFA; no additional
information was received that would change the analysis or conclusions
of the IRFA regarding the impacts on small entities. Accordingly, the
FRFA is based on the IRFA and is not substantively changed. Copies of
the FRFA are available (see ADDRESSES). A summary of the FRFA follows.
Amendment 9 will affect most of the roughly 5,000 shrimp vessels
that operate in the Gulf, because the vast majority of such vessels
operate in the EEZ for at least part of the year. It will also affect a
substantial, but unknown, number of shrimp boats that are smaller than
the typical offshore shrimp vessel (smaller craft that are not required
to be documented by the U.S. Coast Guard) but operate in the EEZ during
periods of favorable weather when harvestable shrimp populations are
found in the near-shore portion of the EEZ. All of the vessels and
boats that would be affected by Amendment 9 are considered small
business entities for the purposes of the Regulatory Flexibility Act,
because their individual annual gross revenues are less then $3
million. The small entities that would be affected by Amendment 9
generate annual gross revenues per vessel ranging from $8,389 to
$220,412. Net revenue per vessel ranges from $2,249 to $41,881.
The shrimp loss from using BRDs would cause at least a 5- percent
reduction in gross revenues for a large, but unknown, number of shrimp
vessels, assuming such vessels use a BRD with a shrimp loss rate equal
to that of the Fisheye BRD (3 percent), presently the only certified
BRD. If other BRDs are developed and certified with higher or lower
shrimp loss rates, the reduction in gross revenues would differ
depending on the mix of BRDs used by the industry. It should be noted
that NMFS is in the process of certifying a number of additional BRDs
in order to provide a wider choice to fishermen. Certification of BRDs
will be based on bycatch reduction criterion and not on the expected
shrimp loss rates. The owners of affected shrimp fishing vessels and
boats will have to purchase and use certified BRDs; vessels and boats
may fish with 1-5 nets. In addition, affected small entities would
incur annual increases in operating costs ranging from 0.2 to 10
percent; these costs generally would be less than 5 percent. The FRFA
indicated that, depending on the type of certified BRD shrimpers use,
between 9 and 240 full-time shrimp vessels (i.e., between 0.3 and 7.8
percent of the shrimp fleet) would leave the shrimp fishery because of
the effects of the BRD requirements. There was a higher end of the
range associated with the Andrews TED that had qualified as a BRD, but
the Andrews TED is currently not a legal TED and therefore cannot be
used.
Several alternatives to the proposed measures of Amendment 9 were
considered by the Council. The status quo, which would have no negative
economic effects on the shrimp trawling industry, was rejected because
the critical bycatch reduction objective cannot be met without some
action to reduce the shrimp fishery bycatch of red snapper. The
alternative of closing the shrimp season for a portion of the year was
rejected because this likely would not result in a large enough
reduction of red snapper bycatch and because the negative impacts on
the shrimp industry would be significant. The alternative of meeting
the bycatch reduction objective through permanently closing some shrimp
trawling areas where juvenile red snapper are concentrated was
[[Page 18144]]
rejected because the projected economic losses to the shrimp industry
were greater than the preferred alternative. The final rule provides
certain exemptions from the BRD requirements to reduce negative
economic impacts on shrimp fishermen while still meeting the bycatch
reduction objectives.
This rule does not establish any new reporting or recordkeeping
requirements. The BRD testing protocol is expected to include a new
collection-of-information requirement subject to the PRA--namely, the
BRD certification process, consisting of an application for the testing
of a new BRD, the testing itself, and the submission of the test
results. The estimated burden hours (i.e., response time) for this
requirement has not been determined. When determined, the new
collection-of-information requirement will be submitted to the Office
of Management and Budget for approval. The requirement and its response
time/burden hours will be contained in a proposed rule containing the
BRD testing protocol to be published subsequently in the Federal
Register with an opportunity for public comment.
List of Subjects in 50 CFR Part 622
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping
requirements, Virgin Islands.
Dated: April 8, 1998.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Services.
For the reasons set out in the preamble, 50 CFR part 622 is amended
as follows:
PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC
1. The authority citation for part 622 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 622.2, a definition for ``Shrimp trawler'' is added in
alphabetical order to read as follows:
Sec. 622.2 Definitions and acronyms.
* * * * *
Shrimp trawler means any vessel that is equipped with one or more
trawl nets whose on-board or landed catch of shrimp is more than 1
percent, by weight, of all fish comprising its on-board or landed
catch.
* * * * *
3. In Sec. 622.41, paragraph (h) is added to read as follows:
Sec. 622.41 Species specific limitations.
* * * * *
(h) Shrimp in the Gulf--(1) BRD requirement. (i) Except as exempted
in paragraphs (h)(1)(ii) through (iv) of this section, on a shrimp
trawler in the Gulf EEZ shoreward of the 100-fathom (183-m) depth
contour west of 85 deg.30' W. long., each net that is rigged for
fishing must have a certified BRD installed. A trawl net is rigged for
fishing if it is in the water, or if it is shackled, tied, or otherwise
connected to a sled, door, or other device that spreads the net, or to
a tow rope, cable, pole, or extension, either on board or attached to a
shrimp trawler.
(ii) A shrimp trawler is exempt from the requirement to have a
certified BRD installed in each net provided that at least 90 percent
(by weight) of all shrimp on board or offloaded from such trawler are
royal red shrimp.
(iii) A shrimp trawler is exempt from the requirement to have a BRD
installed in a single try net with a headrope length of 16 ft (4.9 m)
or less provided the single try net is either pulled immediately in
front of another net or is not connected to another net.
(iv) A shrimp trawler is exempt from the requirement to have a
certified BRD installed in up to two rigid-frame roller trawls that are
16 ft (4.9 m) or less in length used or possessed on board. A rigid-
frame roller trawl is a trawl that has a mouth formed by a rigid frame
and a grid of rigid vertical bars; has rollers on the lower horizontal
part of the frame to allow the trawl to roll over the bottom and any
obstruction while being towed; and has no doors, boards, or similar
devices attached to keep the mouth of the trawl open.
(2) Certified BRDs. The fisheye BRD is certified for use by shrimp
trawlers in the Gulf EEZ. Specifications of the fisheye BRD are
contained in Appendix D of this part.
4. In Sec. 622.48, paragraph (i) is added to read as follows:
Sec. 622.48 Adjustment of management measures.
* * * * *
(i) Gulf shrimp. Bycatch reduction criteria, BRD certification and
decertification criteria, BRD testing protocol, certified BRDs, and BRD
specifications.
[FR Doc. 98-9767 Filed 4-9-98; 11:41 am]
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