[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]
BILLING CODE 3510-22-F