[Federal Register Volume 67, Number 90 (Thursday, May 9, 2002)]
[Proposed Rules]
[Pages 31173-31176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11508]



[[Page 31173]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 020325070-2102-02; I.D. 031202B]


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Shrimp Fishery of the Gulf of Mexico; Suspension of the 2002 Texas 
Closure

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

ACTION: Notice of agency action; withdrawal of proposed rule.

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SUMMARY: In light of NMFS economic analysis and public comments 
received about the proposed rule, NMFS is withdrawing the proposed rule 
that, if implemented, would have suspended, for the 2002 season, 
regulations that close the exclusive economic zone (EEZ) off Texas to 
shrimp trawling from 30 minutes after official sunset on May 15 to 30 
minutes after official sunset on July 15, each year (i.e., the Texas 
closure). The withdrawal is discussed further below. In withdrawing the 
proposed rule, NMFS hereby notifies the public that the Texas closure 
regulations will remain in effect for the 2002 fishing year.

FOR FURTHER INFORMATION CONTACT: Steve Branstetter, telephone: 727-570-
5305, fax: 727-570-5583, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The fishery for shrimp in the Gulf of Mexico 
EEZ is managed under the Fishery Management Plan for the Shrimp Fishery 
of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico 
Fishery Management Council (Council), approved by NMFS, and implemented 
under the authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 
622.
    Amendment 5 to the FMP provides the NMFS Southeast Regional 
Administrator (RA) with the opportunity, after determining that 
benefits may be increased or adverse impacts be decreased, to either: 
(1) modify the geographical scope of the extent of the Texas closure, 
or (2) eliminate the Texas closure for one season.
    Based on public testimony at its January 21-24, 2002, meeting, the 
Council voted to recommend that NMFS suspend regulations at 50 CFR 
622.34(h) implementing the Texas closure for one season. A proposed 
rule describing the action was published in the Federal Register on 
April 5, 2002 (67 FR 16359), with comments accepted from the public 
through April 22, 2002.
    An environmental assessment (EA), including an informal section 7 
Consultation under the Endangered Species Act, concluded that total 
shrimp fishing effort does not change substantially because of the 
Texas closure. During the closure, vessels shift their effort to 
adjacent Federal waters off Louisiana, and when Texas waters (both 
territorial and Federal) re-open, those vessels move back to Texas 
waters. Given that the catch and bycatch species in this fishery have 
wide-ranging distributions, those species continue to be impacted at a 
relatively constant rate. Therefore, NMFS concluded that the proposed 
action to suspend the Texas closure would not alter the impacts on the 
stocks of target and non-target species, and would not have a 
significant impact on the human environment.
    Using data through 2001, and assuming similar conditions would 
persist during 2002, NMFS' Regulatory Impact Review (RIR) of the 
proposed action forecasted that a suspension of the Texas closure for 
the 2002 fishing season would increase total producer surplus (total 
revenue-total variable cost, i.e., a proxy for profit) by approximately 
$15-$19 million. Nevertheless, total harvest and revenues were 
forecasted to decline if the closure were suspended.
    Substantial public comment was received during the comment period 
on the proposed rule, and given that the Council's intent behind the 
regulations is based on the economic conditions facing the industry, 
the position of the industry itself regarding the value of the Texas 
closure weighed heavily in the final determination. Substantial numbers 
of industry comments opposing the suspension were received, which 
indicated to NMFS that there is no uniform industry position regarding 
the proposed action. Therefore, given that the RIR indicated that the 
average producer surplus for large vessels (those most likely to fish 
in the EEZ) was projected to decline by 30 percent or more, NMFS 
determined that, over the entire year, it is unlikely that there is any 
substantial economic benefit or decrease in adverse economic impacts to 
the fishery as a whole associated with the suspension of the Texas 
closure. NMFS also considered several problems identified by the U.S. 
Coast Guard during the Council's deliberations on the proposed action. 
It would be difficult for the state of Texas to enforce its 9-nautical 
mile (nm) closure if NMFS were to suspend the closure of Federal 
waters. Vessels would be able to enter the closed area and fish and 
quickly return to open Federal waters.

Withdrawal of Notice of Proposed Rulemaking

    For reasons stated in the preamble, the notice of proposed 
rulemaking that was published in the Federal Register on April 5, 2002 
(67 FR 16359), is withdrawn. Regulations implementing the Texas closure 
will remain in effect.

Comments and Responses

    A wide range of opinions were expressed by the public regarding the 
proposed rule. Two Texas-based shrimp associations, and 29 individuals 
associated with the Texas shrimp industry, submitted either individual 
letters or multiple-signature petitions indicating their preference to 
suspend the Texas closure. By contrast, a total of 158 Texas-based 
members of the shrimp industry submitted individual letters or 
multiple-signature petitions opposing the proposed rule. Individuals 
submitted 232 individual letters and one petition containing 39 
signatures opposing the proposed rule. Additionally, three 
environmental organizations and the Fish and Wildlife Service of the 
Department of Interior commented in opposition to the proposed rule. 
The Texas Parks and Wildlife Department commented regarding the content 
of the preamble of the proposed rule. Several hundred form letters 
stating opposition to the proposed rule were also received following 
the closure of the comment period.
    Comment 1: Industry comments received in support of the proposed 
rule noted that recent economic downturns, stemming from additional 
closures of Texas territorial waters, an over-abundance of a variety of 
sizes of imported shrimp, and a general downward trend in the U.S. 
economy following the events of September 11, 2001, have resulted in 
economic hardship for several shrimp vessel owners, vessel crews, 
shoreside processing facilities and shoreside support facilities such 
as dry docks and supply houses. Comments in support of the suspension 
specifically focused on the recent actions by Texas Parks and Wildlife 
Department to extend, from February 15 to May 15, the closed season in 
Texas territorial waters of the Southern Shrimp Zone (from Corpus 
Christi Pass (27 deg.40'34" N. lat.) south to the Mexican border and 
within 5 nm of

[[Page 31174]]

the coastline). Commenters indicated that this extension of the state 
closed period had severely impacted the economics of vessels homeported 
in southern Texas areas. The commenters indicated that suspension of 
the Texas closure would enable shrimp fishermen to continue harvesting 
marketable-sized shrimp, thus providing income and employment during a 
period when Texas ports are normally void of activity. They stated that 
suspension of the closure would also reduce the pulse fishing and 
concentration of Texas and out-of-state vessels that occurs on the re-
opening of Texas waters and that these reductions of concentrated 
effort would be less damaging to habitat and have a lesser impact on 
bycatch species.
    In contrast, over 150 comments from shrimp vessel owners, crews, 
and support personnel, who are based in southern Texas ports, opposed 
the suspension of the closure. These industry participants stated that 
prices for small shrimp are at their lowest in recent history because 
of an over-abundance of small-sized imported and farm-raised shrimp in 
cold storage. Additionally, fuel prices are rising. Maintaining the 
Texas closure would allow the shrimp a chance to grow and provide 
better revenues to the shrimp industry for the 2002 season.
    Response: The Texas closure, as established by the Council, is 
intended to increase yield to the fishery by deferring the harvest of 
shrimp until they reach a larger, more valuable size. NMFS has 
determined that the Texas closure does not have a direct biological 
effect on the stocks; its impacts and its intended effect are to 
produce economic benefits to the shrimp industry. In accordance with 
the FMP, the RA may, after determining that benefits may be increased 
or adverse impacts be decreased, adjust the timing or extent of the 
Texas closure.
    The RIR projected that, if the closure were suspended, the average 
per-vessel producer surplus for the small vessel fleet would have 
increased by 86 percent, while that of large vessels would have 
declined by 30 percent. Even with a redistribution of benefits, total 
harvest and revenues were forecast to decline if the closure were 
suspended.
    Public comment from shrimp industry participants was strongly 
divided as to the potential benefits and impacts of suspending the 
Texas closure for the 2002 season. Because large vessels are more 
likely to fish in the EEZ, and are forecast to have a decline of 
producer surplus of as much as 30 percent (or more), NMFS has 
determined that it is unlikely that there are substantial economic 
benefits, or a decrease in adverse economic impacts, associated with 
the suspension of the Texas closure. Given that fact, along with issues 
of enforceability of a 9-nm closure of Texas territorial waters (see 
Comment 3), NMFS has decided to withdraw the proposed rule.
    Comment 2: There is no concrete information that suspending the 
closure would increase revenues to the shrimping industry. The model 
was not capable of allowing shrimp prices to change with harvest 
quantities so the forecasts were based on an unrealistic restriction 
compared to the real world.
    Response: All models require assumptions to accommodate data gaps 
or logistic issues associated with matching the model to the data. The 
economic model used to forecast the predicted responses cannot 
guarantee that the predictions will be met. Nevertheless, the model and 
the RIR were based on the best scientific information available to NMFS 
at the time.
    Comment 3: With only a 9-nm closure, enforcement will be difficult 
and poaching (fishing inside the closed territorial waters) will 
increase. The 15-nm closures of the late 1980's led to numerous 
violations where vessels would enter the closed area from the EEZ to 
fish illegally with the opportunity to quickly return to open Federal 
waters. Enforcement of the limited closure was difficult. Under a full 
200-nm closure, any vessel found fishing off Texas would be in 
violation of the closure. Under a limited closure such as the proposed 
suspension of the EEZ closure, it would be difficult to determine if a 
vessel had been fishing inside the 9-nm closure limit.
    Response: NMFS agrees, and this was a contributing factor in making 
a determination to withdraw the proposed rule. NMFS recognizes that 
maintaining the status quo of a 200-nm closure will ease enforcement 
issues.
    Comment 4: There was limited public notice regarding the Council's 
intent to consider suspending the Texas closure at its January 2002 
meeting. The Council's decision to seek suspension of the Texas closure 
was made with no proposal document and no review and analysis by the 
scientific and socio-economic committees charged to advise the Council 
on its management decisions. A total of 172 comments were received 
stating that there had not been sufficient time to allow adequate 
public input to the process. One environmental group that testified 
before the Council in January 2002, commented that the proposed rule 
may not have adequately met the requirements of the Magnuson-Stevens 
Act regarding adequate public notice.
    Response: The Magnuson-Stevens Act, in section 302(i), requires 
that Councils provide timely public notice of each regular meeting, 
including the time, place and agenda of the meeting. The Council 
annually reviews the results of the previous year's Texas closure at 
its January meeting and then votes on whether or not to continue the 
closure for the upcoming year. The Council publicly announced a 
tentative agenda, including consideration of this action, for its 
upcoming January 2002 meeting in its September-December 2001 
newsletter. A final meeting announcement, including an agenda, was 
distributed to the general public in a news bulletin dated December 26, 
2001. A meeting notice, including an agenda, was additionally published 
in the Federal Register (67 FR 717, January 7, 2002).
    Based on the framework established in the FMP and its amendments, 
the Council may use its Scientific and Statistical Committee and 
Advisory Panel (AP) to review and advise on the findings of the NMFS 
assessment. For the proposed action, the Council considered the review 
and position of the AP in its deliberations, along with public 
testimony. The framework establishes that the RA shall have the 
authority, after consultation with the Council, to implement action to 
revise the existing management measure through the regulatory amendment 
process.
    The Magnuson-Stevens Act requires (section 304(b)(1)(A)) that NMFS 
announce the availability of all proposed actions with a comment period 
of 15 days to 60 days. NMFS believes that the substantial number of 
comments received, from a diverse cross-section of interests, indicates 
that adequate time was allowed for public input regarding the proposed 
action. All totaled, 462 comments were received during the 15-day 
comment period on the proposed rule, and several hundred form letters 
were received during the few days immediately following the closure of 
the comment period.
    Comment 5: The State of Texas and two environmental groups noted 
that in contrast to statements in the preamble of the proposed rule, 
the regulations limiting shrimping in Texas territorial waters are not 
recent actions. Territorial closures have been in effect since 1959. 
The only recent change in the regulations was an extension of the 
night-time closure in the Southern Shrimp Zone from December 15 
February 15 to December 15 to May 15 each year.

[[Page 31175]]

    Response: NMFS is aware of the long-standing regulations regarding 
shrimp fishing in the territorial waters of Texas. The preamble of the 
proposed rule attempted to reflect the positions put forth by public 
testimony at the January 2002 Council meeting that provided the impetus 
for the Council's action. The rationale for the proposed rule was 
prefaced with this background material: ``However, over time, several 
other regulations have been implemented that, according to the shrimp 
industry, have reduced the benefits (and need for) the Texas closure.'' 
(67 FR 16359, April 5, 2002). The preamble later stated in the 
introduction to the Analysis and Justification section (67 FR 16359-60, 
April 5, 2002) ``Participants in the shrimp fishery indicated that the 
economic impacts imposed by other state-mandated closures off Texas 
would be exacerbated by an additional closure of the EEZ off Texas, 
which would result in the capture of even more large shrimp. Therefore, 
the industry would prefer to suspend the Texas closure for 2002 and 
have the opportunity to harvest smaller shrimp.''
    Nevertheless, public comment on the proposed rule from shrimp 
industry participants was strongly divided as to the potential benefits 
and impacts of suspending the Texas closure for the 2002 season. The 
conclusions of the RIR also suggested that rather than alleviating 
adverse economic conditions in the fishery, suspending the closure 
would perpetuate and probably exacerbate them.
    Comment 6: The proposed rule states the suspension is necessary to 
mitigate adverse impacts of the closures in the territorial waters off 
Texas, as proposed by the shrimp industry. In proposing to suspend the 
Texas closure, based on the request of some regulated parties, NMFS has 
abdicated its responsibilities under the Magnuson-Stevens Act to manage 
the shrimp fishery for conservation purposes. The proposal appears to 
violate national standard (NS) 1, to achieve optimum yield, NS 2, that 
actions be based on the best available scientific information, NS 5, 
prohibiting measures that have economic allocation as their sole 
purpose, and NS 9, which requires minimization of bycatch and bycatch 
mortality to the extent practicable.
    Two comments suggested that the proposed rule and supporting EA and 
RIR did not provide required analysis needed under the Endangered 
Species Act (ESA), the Magnuson-Stevens Act, and the National 
Environmental Policy Act. The informal section 7 of the ESA 
consultation is inadequate and inconsistent with NMFS' previous 
findings that indicate the need for a formal Section 7 consultation 
regarding adjustments to the Texas closure.
    Finally, one commenter noted that the existing March 24, 1998, 
Biological Opinion concluded that strandings of sea turtle species in 
Texas continue to drop during the period that offshore waters are 
closed to shrimping and therefore mortalities in nearshore waters 
remain closely associated with the shrimp fishery.
    Response: The impacts identified by the public at its January 2002 
meeting were the impetus for the Council's decision to request that 
NMFS suspend the Texas closure regulations. In reviewing the Council's 
request, NMFS carefully analyzed the request and associated impacts and 
determined that the proposed rule was sufficiently in conformance with 
the FMP, the FMP amendments, the Magnuson-Stevens Act, and other 
applicable laws to be published for public comment.
    The previous ESA section 7 consultations considered the effect of 
shrimp fishing in the EEZ off Texas in a time period before turtle 
excluder devices (TEDs) were mandated for use. Reasonable and prudent 
alternatives were proposed in the 1986 Biological Opinion to mitigate 
the impacts of the limited closed area. Those findings have since been 
updated for the current fishery, in which TEDs are mandated for use.
    The 1998 Biological Opinion is not inconsistent with NMFS current 
findings on the proposed action. For most of the Texas coast, the 10-
fathom (18.3-meter) contour roughly approximates the 9-nm territorial 
sea; thus, the statement of the relationship of turtle mortalities and 
nearshore waters is consistent with NMFS current determination that 
continued protection of sea turtles would be afforded from the closure 
of Texas territorial waters.
    The informal section 7 consultation is based on adequate 
consideration of relevant information. That review, completed on March 
8, 2002, concluded the following points:
    Although the Texas closure provides a documented reduction in 
turtle strandings, the pulse fishing that occurs with the re-opening in 
July subjects turtles to an even greater fishing pressure and potential 
for fishing related mortalities.
    NMFS data indicate that the Texas closure does not reduce overall 
fishing effort, but displaces that effort to other areas, most notably 
to Louisiana offshore waters. Stranding data imply that turtle 
mortalities do transfer to the Louisiana coast after the normal May 15 
closure.
    Previous studies on sea turtle catch per unit effort is essentially 
the same between the western Gulf (Texas) and north-central Gulf 
(Louisiana through the Florida Panhandle). Therefore, the level of 
trawler-turtle interactions that occur should be a function of total 
shrimping effort and would not be affected by a shift in that effort 
away from the Texas coast to other parts of the northern Gulf.
    Comment 7: The proposed rule states that the majority of turtle 
interactions occur in state waters off Texas. The TPWD letter suggested 
that loggerhead turtles, a species which occurs more frequently further 
offshore, are the most common turtle recorded in the Strandings 
Network. The U.S. Fish and Wildlife Service noted that turtles are 
found in offshore waters during May through July and that a suspension 
of the closure would increase the probability of a turtle-trawler 
interaction in the offshore waters off Texas.
    Response: NMFS recognizes that turtles are widely distributed, but 
two studies, one by NMFS in 1987 and one by the Gulf and South Atlantic 
Fisheries Foundation, Inc. in 1998, using shrimp trawls without turtle 
excluder devices, indicated that the majority of turtle interactions 
occurred in waters less than 10 fathoms (18.3 m) deep. For much of the 
Texas coast, the 10-fathom (18.3 m) contour approximates the 9- nm 
closure of Texas territorial waters. In combination, those two studies 
captured 45 turtles in waters less than 10 fathoms (18.3 m) deep, and 
22 of those were loggerhead turtles. Therefore, the occurrence of 
loggerhead turtles in the strandings data does not necessarily indicate 
an offshore interaction.
    Comment 8: NMFS failed to adequately assess the impact of the 
proposed action on essential fish habitat. Common sense would suggest 
that allowing trawling to occur where it had not occurred before would 
result in some adverse habitat effects and increase bycatch.
    Response: NMFS presented information in the EA summarizing the 
results of previous studies regarding shrimp effort and the effect of 
seasonal and area closures on that effort. Those studies concluded that 
the seasonal or area closures do not reduce overall fishing effort, but 
displace that effort to other areas. The EA (see Section 2.2) noted 
that during the Texas closure, shrimp effort noticeably shifts to 
Louisiana offshore waters. That effort then shifts back to the Texas 
EEZ with the re-opening of Texas waters. This is not habitat that is 
normally closed. Shrimping occurs throughout the EEZ off Texas except 
for the time of the

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Texas closure. Thus, no additional impacts to essential fish habitat 
were expected to occur had NMFS suspended the regulations to close the 
EEZ.
    Comment 9: Allowing the harvest of smaller shrimp could lead to 
growth overfishing of penaeid shrimp stocks. One comment included 
detailed discussions regarding data limitations that impact NMFS' 
assessments on the status of the penaeid shrimp stocks that would 
restrict NMFS in its ability to determine whether the shrimp stocks are 
currently overfished or undergoing overfishing. Ignoring evidence that 
growth overfishing was occurring could lead to recruitment overfishing. 
The commenter provided several suggestions, and an alternative 
methodology, to estimate shrimp mortality, fishing effort, and reduce 
errors in future assessments.
    Response: NMFS agrees that there are uncertainties surrounding any 
fishery-dependent data, and has made efforts to reduce any potential 
bias in the data. For any analysis, there are alternative methodologies 
that may have equal scientific validity. NMFS analyses are tailored to 
match the existing, and admittedly sometimes limited, database. All 
assessments of the status of the various penaeid shrimp stocks have 
produced results that indicate the stocks to be above the established 
recruitment overfishing index levels (i.e., no recruitment overfishing 
has occurred). The Council recently submitted Amendment 11 to the FMP, 
which included a proposed action to permit shrimp vessels that intend 
to fish in the EEZ of the Gulf of Mexico. If this proposed action is 
approved by NMFS, it will provide a mechanism by which to achieve a 
more accurate and precise estimate of shrimp effort, shrimp fishing 
mortality, and the status of the stocks.

    Authority: 16 U.S.C. 1801 et seq.

    Dated: May 3, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 02-11508 Filed 5-3-02; 3:51 pm]
BILLING CODE 3510-22-S