[Federal Register Volume 73, Number 223 (Tuesday, November 18, 2008)]
[Rules and Regulations]
[Pages 68355-68361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27351]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 070718362-81268-02]
RIN 0648-AV14


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Shrimp Fishery of the Gulf of Mexico; Revisions to Allowable Bycatch 
Reduction Devices

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

ACTION: Final rule.

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SUMMARY: In accordance with the framework procedures for adjusting 
management measures of the Fishery Management Plan for the Shrimp 
Fishery of the Gulf of Mexico (FMP), NMFS issues this final rule to 
decertify the expanded mesh bycatch reduction device (BRD), the ``Gulf 
fisheye'' BRD, and the ``fisheye'' BRD, as currently specified, for use 
in the Gulf of Mexico (Gulf) shrimp fishery. NMFS is also certifying a 
new specification for the fisheye device to be used in the Gulf. In 
addition, this final rule incorporates a number of minor revisions to 
remove outdated regulatory text and revise references within regulatory 
text. The intended effect of this final rule is to improve bycatch 
reduction in the shrimp fishery and better meet the requirements of 
national standard 9.

DATES: This final rule is effective May 18, 2009.

ADDRESSES: Copies of the Final Regulatory Flexibility Analysis (FRFA) 
may be obtained from Steve Branstetter, NMFS, Southeast Regional 
Office, 263 13th Avenue South, St. Petersburg, FL 33701; phone: 727-
824-5305; fax: 727-824-5308.

FOR FURTHER INFORMATION CONTACT: Steve Branstetter, telephone: 727-824-
5305, fax: 727-824-5308.

SUPPLEMENTARY INFORMATION: The fishery for shrimp in the exclusive 
economic zone (EEZ) of the Gulf is managed under the FMP prepared by 
the Gulf of Mexico Fishery Management Council (Council). The FMP 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 June 3, 2008, NMFS published a proposed rule (73 FR 31669) and 
requested public comment. The rationale for the measures contained in 
this final rule are provided in the preamble to the proposed rule and 
are not repeated here. This final rule is effective approximately 6 
months after the publication date to give members of the Gulf shrimp 
industry enough time to come into compliance with the management 
measures contained in this rulemaking.

Comments and Responses

    NMFS received four comments on the proposed rule, three of which 
opposed proposed actions or suggested alternate management measures. 
Following is a summary of the comments and NMFS' responses.
    Comment 1: BRD efficacy results used for this rulemaking are not 
based on best scientific data; preliminary results from a new study 
released by the Gulf and South Atlantic Fisheries Foundation, Inc. 
(Foundation) have different outcomes than the results used by NMFS in 
certifying and decertifying BRDs.
    Response: To be certified for unconditional use in the southeastern 
shrimp fishery, testing must demonstrate that a BRD reduces the weight 
of finfish bycatch by 30 percent, and that less than a 10-percent 
probability exists that the reduction rate is less than 25 percent. To 
be provisionally certified (for 2 years), testing must demonstrate that 
at least a 50-percent probability exists that the BRD reduces the 
weight of finfish bycatch by 25 percent.
    New data are collected at varying rates for different types of 
fishery research. The Foundation study includes new data that became 
available after NMFS initiated this rulemaking. Nevertheless, the 
preliminary results provided by the Foundation study very closely 
matched the results available to NMFS at the time the rule was 
developed. The Foundation study agreed with NMFS results indicating a 
fisheye-type BRD placed less than 9 ft (2.7 m) from the cod end tie-off 
rings met the certification criterion; the ``Gulf fisheye'' BRD and the 
expanded mesh BRD did not meet the certification criterion; and the 
extended funnel BRD did meet the provisional certification criterion. 
Therefore, the results of the Foundation study do not contradict the 
actions in this rulemaking to change the allowable placement of the 
``fisheye'' BRD in the Gulf, and to decertify the ``Gulf fisheye'' and 
expanded mesh BRDs in the Gulf.
    The Foundation study had slightly different results for the Jones-
Davis, Modified Jones-Davis, and composite

[[Page 68356]]

panel BRDs. For the Jones-Davis BRD, the Foundation study only 
considered a limited data set, consisting of 20 new sample tows, which 
indicated the BRD did not meet the criterion. This limited data set 
does not meet the minimum 30-tow sample size requirement for 
certification consideration, and there are no other data for this BRD 
design except the data used to originally certify the BRD in 1998. The 
Foundation study included 510 sample tows (compared to NMFS' analysis 
of 464 sample tows) for its analysis of the Modified Jones-Davis BRD, 
and concluded the reduction in finfish biomass was greater than 30 
percent, but the probability threshold was not met (p=0.11). However, 
the Foundation study used a different analytical approach in 
determining its probability estimates. NMFS would need to examine the 
ramifications of using different analytical procedures prior to making 
any further determinations regarding this gear. The Foundation study 
used 187 sample tows (compared to NMFS' analysis of 146 sample tows) to 
evaluate the efficacy of the provisionally certified composite panel 
BRD. Whereas NMFS concluded this BRD met the provisional certification 
criterion by a very small margin (mean reduction rate of 25.1 percent 
with a 52-percent probability the mean reduction rate was greater than 
25 percent), the Foundation study indicated the BRD has a 23.8-percent 
reduction rate with a 45-percent probability the reduction rate is 
greater than 25 percent.
    As noted, new data are collected on a continuing basis by NMFS and 
its cooperating research partners. These data will be reviewed and 
evaluated, along with other relevant data comprising the best 
scientific information available, to monitor for any substantial 
changes in the overall efficacy of the various BRDs. Revisions will be 
contemplated once sufficient information exists to determine whether 
revisions are appropriate. However, repeated revisions to the status of 
certified or non-certified BRDs without a sufficient administrative 
record would not be consistent with the Magnuson-Stevens Act, the FMP, 
or other applicable law, and would lead to unnecessary regulatory 
confusion and economic hardship to the industry. NMFS does not intend, 
at this time, to modify the list of certified BRDs based on preliminary 
analyses conducted using different methodologies. However, NMFS will 
continue to monitor the efficacy of BRDs currently certified for use in 
the southeastern shrimp fishery.
    NMFS provisionally certified the Extended Funnel and composite 
panel BRDs for a period of 2 years, through March 14, 2010. NMFS, in 
cooperation with its research partners, is currently collecting 
additional information on modifications to these BRD designs to 
determine if such modifications will improve their overall bycatch 
reduction efficacy.
    Comment 2: The benefit of BRDs is a diminishing return as shrimp 
effort declines. There are no documented bycatch issues where bycatch 
mortality reduction is needed in the trawl fishery for managed species; 
the only basis for BRDs is purportedly to meet Magnuson-Stevens Act 
requirements. Furthermore, there is no basis or sound definition of the 
30-percent reduction target over another target; it is arbitrary and 
maybe capricious. Bycatch reduction credit should include reductions 
from turtle excluder devices (TEDs).
    Response: This rulemaking is limited in scope to revising the list 
of allowable BRDs, based on the recently revised BRD certification 
criterion (73 FR 8219, February 13, 2008). In accordance with 
regulations at 50 CFR 622.41(g)(2)(iv), the Regional Administrator will 
decertify a BRD when it is determined the BRD does not meet the 
certification criterion. NMFS' analyses and an independent review of 
those data by the Foundation agreed the ``Gulf fisheye'' BRD and the 
expanded mesh BRD do not meet the certification criterion. This 
rulemaking will decertify those BRDs in the Gulf.
    Although there are no species-specific targets for shrimp trawl 
bycatch reduction, fishing mortality associated with shrimp trawl 
bycatch has been considered in recent stock assessments for several 
managed stocks, including red snapper, vermilion snapper, gray 
triggerfish, and king mackerel. NMFS' analyses and an independent 1997 
report by the Foundation indicate BRDs can substantially reduce the 
catch of numerous finfish species. Therefore, the requirements for BRDs 
in the southeastern shrimp fishery helps NMFS and the Councils meet 
national standard 9 and other Magnuson-Stevens Act requirements, 
including section 303(a) of the Magnuson-Stevens Act by reducing 
bycatch and bycatch mortality for both managed and non-managed stocks.
    The total quantity of bycatch reduced from use of a BRD is 
dependent on total effort, and shrimp trawl effort, and the resulting 
level of bycatch, has been reduced substantially in recent years. In 
addition, TEDs and other fishing gear modifications or fishing behavior 
modifications may reduce bycatch. However, the BRD certification 
criterion is not intended to be an overall target or credit for the 
level of bycatch reduction that may be possible in the fishery. The 
criterion represents an achievable average rate by which a BRD reduces 
the finfish biomass captured in the cod end of the trawl, independent 
of the level of effort or quantity of the catch. Bycatch reduction that 
might occur from other technological or fishing behavior changes would 
be in addition to the 30-percent reduction achieved through the use of 
BRDs.
    The definition of the bycatch reduction criterion is clearly 
described in the Bycatch Reduction Device Testing Manual. During 
certification testing, a BRD candidate is placed in the cod end (behind 
the TED) of one outboard net to create an experimental net, and any 
certified BRD in the other outboard net is either removed or disabled 
to create a control net. All trawls under tow must be equipped with 
approved TEDs. The catch and catch rate between the two nets is then 
compared. The BRD Manual further states: ``The primary assumption in 
assessing the bycatch reduction efficiency of the BRD candidate during 
paired-net tests is that the inclusion of the BRD candidate in the 
experimental net is the only factor causing a difference in catch from 
the control net.'' In summary, the BRD must demonstrate the ability, on 
average, to allow 30 percent of the finfish biomass captured in the cod 
end of a shrimp trawl to escape from the net.
    The basis for the 30-percent criterion was established when the 
Council recommended, and NMFS approved and implemented through 
regulation, BRD requirements for the eastern Gulf in Amendment 10 to 
the FMP. Previously, regulations implementing Amendment 9 required BRDs 
in the western Gulf; however, the focus of the original requirement was 
to reduce juvenile red snapper bycatch, and juvenile red snapper were 
not common in the eastern Gulf. The Magnuson-Stevens Act requires 
measures to avoid and minimize bycatch and bycatch mortality overall; 
therefore, in developing Amendment 10, the Council chose a more generic 
goal of reducing overall finfish catch by 30 percent by weight. The 
Council's decision was supported by information on the bycatch 
reduction capabilities of BRDs presented in a 1997 report by the 
Foundation and a 1998 NMFS Report to Congress. All three BRDs 
(``fisheye'', ``Gulf fisheye'', Jones-Davis) certified at the time for 
use in the western Gulf (based on a red snapper reduction criterion) 
met this general finfish reduction criterion. In addition, two other 
BRDs (extended funnel and expanded mesh), certified for the South 
Atlantic based on their ability to reduce

[[Page 68357]]

the catch of weakfish and Spanish mackerel, also met this general 
finfish criterion. Thus, this general finfish reduction requirement 
allowed all BRDs certified at the time under other certification 
criteria to be certified for use in the eastern Gulf. The intent was to 
provide maximum flexibility to the shrimp industry to use a BRD most 
appropriate for the fishing conditions and fishing activities conducted 
in the eastern Gulf. Subsequently, the South Atlantic Fishery 
Management Council revised their certification criterion to reflect 
this general finfish reduction criterion, again noting all BRDs 
certified for use in the South Atlantic, because of their ability to 
reduce weakfish and Spanish mackerel, also met this general finfish 
criterion.
    Comment 3: There was a basis for establishing a 74-percent bycatch 
mortality reduction target for red snapper as part of joint Amendment 
27 to the Reef Fish FMP and Amendment 14 to the Shrimp FMP (Amendment 
27/14). Currently, the shrimp fishery is meeting the 74-percent target 
with or without BRDs. It is clear BRDs are not an effective tool for 
reducing red snapper or rebuilding the stock. In addition, other 
factors such as natural mortality may play a bigger role in red snapper 
health than previously thought. Current research has not been able to 
document the expected inverse relationship between juvenile red snapper 
abundance and shrimp effort. Finally, the increased survivorship of 
predatory fish may be impacting red snapper and shrimp. The costs and 
benefits of reducing bycatch should be considered in a broad ecosystem 
context.
    Response: As noted in the previous response, the scope of this 
rulemaking is to decertify those BRDs that do not exclude 30 percent of 
the finfish bycatch, by weight, captured during trawling operations. 
Although BRDs do contribute to an overall reduction in fishing 
mortality of red snapper, and other managed and non-managed finfish 
species, there are no species-specific reduction criteria associated 
with the certification and decertification of BRDs. However, Amendment 
27/14 notes that a 30-percent reduction in finfish roughly corresponds 
to a 20-25-percent reduction in the catch rate of red snapper. With the 
implementation of actions in Amendment 27/14, the Council and NMFS have 
taken a different approach to achieve reductions in red snapper fishing 
mortality from shrimp trawls through the use of specific time-area 
closures, as necessary. NMFS is aware of as yet unpublished studies on 
red snapper natural mortality; these studies will be evaluated and 
considered in the next red snapper stock assessment, which is currently 
scheduled for 2010.
    Amendments 9, 10, and 14 to the Gulf Council's Shrimp FMP and 
Amendment 6 to the South Atlantic Council's Shrimp FMP recognized the 
changes that might occur at an ecosystem level as finfish bycatch and 
bycatch mortality were reduced. Increased predation on shrimp could 
reduce shrimp biomass by 6-8 percent, but any negative effects of 
increased predation would be masked by the large annual fluctuations in 
recruitment and landings. Even with the substantial reductions in 
overall shrimp effort in the Gulf, catch rates have increased 
substantially since 2003, resulting in total landings at levels 
comparable to previous high-effort years. At this point, it would not 
appear there have been more than minimal changes in overall shrimp 
biomass.
    Comment 4: The condition of the fishery is worse than when the 
bycatch practicability analysis was performed for Amendment 27/14, and 
is not expected to improve in the near future. The analysis should be 
redone under today's conditions. Because of the worsening economic 
conditions in the shrimp fishery, the cost in shrimp loss from new 
BRDs, and the purchase and installation costs is an impact that cannot 
be absorbed.
    Response: Economic conditions in the Gulf shrimp fishery have 
worsened since the time period considered in Amendment 27/14 and remain 
very poor, primarily because of low shrimp prices and rising fuel 
costs. Amendment 27/14 analyzed trends in the economic status of the 
Gulf shrimp fishery through 2005, which indicated the average Gulf 
shrimp vessel was experiencing a significant economic loss in 2002 and 
that such losses had likely continued through 2005.
    The Regulatory Impact Review (RIR) for this rulemaking updated the 
analysis using all available data, including information regarding 
permitted vessels' operations in 2006 and certain preliminary data for 
2007. Based on the updated analysis, NMFS agrees that economic 
conditions in the Gulf shrimp fishery have likely worsened and remain 
poor. Further, NMFS does not expect significant improvement in economic 
conditions or increases in effort in the foreseeable future. More 
detailed information regarding the updated analysis and response to the 
above comment is contained in the FRFA classification summary of this 
rule.

Classification

    The Administrator, Southeast Region, NMFS, determined that this 
rule is necessary for the conservation and management of the shrimp 
fishery in the Gulf of Mexico and is consistent with the Magnuson-
Stevens Act and other applicable laws.
    This final rule has been determined to be significant for purposes 
of Executive Order 12866.
    A FRFA was prepared in support of this final rule. The FRFA 
incorporates the IRFA, a summary of the significant economic issues 
raised by public comments, NMFS responses to those comments, and a 
summary of the analysis completed to support the action. A copy of this 
analysis is available from NMFS (see ADDRESSES). A summary of the FRFA 
follows.
    This final rule will revise the list of allowable BRDs used in the 
Gulf shrimp fishery. Specifically, NMFS is decertifying the expanded 
mesh BRD, the ``Gulf fisheye'' BRD, and the ``fisheye'' BRD, as 
currently specified, for use in the Gulf shrimp fishery. The 
``fisheye'' BRD with a new, more restrictive specification will be 
certified for use in the Gulf. The allowable placement of the 
``fisheye'' BRD will be restricted to no further forward than 9 ft (2.7 
m) from the cod end tie-off rings.
    The purpose of this final rule is to further reduce total finfish 
bycatch in the Gulf shrimp fishery to better address the requirements 
of national standard 9.
    Four comments were made by the public in response to the proposed 
rule; one stated general support for the proposed action, two expressed 
general opposition to the rule, and one outlined detailed issues. Four 
issues associated with the economic analysis were raised through public 
comment on the proposed rule. A summary of all comments is provided in 
the previous section of this preamble; NMFS's responses to the issues 
raised on the economic analysis are discussed further below. No changes 
were made in the final rule as a result of these comments.
    The first issue raised on the economic analysis is that economic 
conditions in the Gulf shrimp fishery have worsened since the time 
period considered in the Final Environmental Impact Statement (FEIS) 
for Amendment 27/14 and remain very poor. The FEIS for Amendment 27/14 
analyzed trends in the economic status of the Gulf shrimp fishery 
through 2005. According to projections available at the time, the FEIS 
for Amendment 27/14 indicated that the average Gulf shrimp vessel was 
experiencing an economic loss in 2002 and that such losses had likely

[[Page 68358]]

continued through 2005. The RIR for this rule updated this analysis by 
using all available data, including information regarding permitted 
vessels' operations in 2006 and certain preliminary data for 2007. This 
information indicated that, in 2006, average total revenue per 
permitted vessel increased even though shrimp prices fell. The 
combination of above average abundance and reduced vessel participation 
and, therefore, effort, led to an increase in catch per unit of effort 
and, thus, an increase in landings and revenue per vessel. However, 
diesel fuel prices also increased significantly, by nearly 16 percent, 
in 2006. Therefore, the updated analysis concluded it is highly likely 
that the average permitted vessel was operating at an economic loss in 
2006. This conclusion is supported by the fact that the actual decline 
in effort between 2002 and 2006 was greater than originally projected, 
reflecting the fact that vessels have been exiting the fishery more 
quickly than originally forecast which in turn is most likely due to 
worsening economic conditions. Preliminary data indicate that vessel 
participation, effort, abundance, landings, and, to a lesser extent, 
catch per unit of effort likely decreased in 2007. Although the 
preliminary data indicates that shrimp prices increased slightly in 
2007, diesel fuel prices apparently increased at a faster rate and, 
thus, it is highly likely that the average permitted vessel was 
operating at an economic loss in 2007 as well. Therefore, NMFS agrees 
that economic conditions in the Gulf shrimp fishery have likely 
worsened and remain very poor.
    The second issue raised on the economic analysis is that the 
economics of the Gulf shrimp fishery have been worsening primarily due 
to declines in shrimp prices and increases in fuel costs. The RIR for 
this rule states that, on average, Gulf shrimp prices decreased by 
approximately 50 percent between 2002 and 2006 in nominal terms. 
Adjusting for inflation, the price decrease in real terms was 58 
percent. Preliminary data indicated that shrimp prices increased 
slightly in 2007, particularly for large shrimp. The RIR also states 
that the price of diesel fuel increased by nearly 138 percent between 
2002 and 2006 and that, according to preliminary data, diesel fuel 
prices increased by an additional 7 percent in 2007. Such increases in 
fuel prices have led to comparable increases in the fuel expenses 
associated with operating a Gulf shrimp vessel. Therefore, NMFS agrees 
that the combination of lower shrimp prices and higher fuel costs has 
led to deteriorating economic conditions in the Gulf shrimp fishery 
over the past several years.
    The third issue raised on the economic analysis is that economic 
conditions in the shrimp fishery are not expected to improve 
significantly and, as a result, no significant increases in shrimp 
effort are expected in the next several years. The RIR for this rule 
states that, primarily as a result of adverse economic conditions, 
participation in the Gulf shrimp fishery by permitted vessels 
continually declined between 2002 and 2006 and, according to 
preliminary data, participation likely decreased further in 2007. 
Furthermore, the RIR states it is reasonable to conclude that, not only 
will effort and vessel participation continue to decline for the 
foreseeable future, but the equilibrium level of effort and fleet size 
will be lower than originally forecasted, and, thus, the reductions in 
effort and fleet size at the new equilibrium will be greater than 
originally predicted. Therefore, NMFS agrees that economic conditions 
are not expected to improve significantly and significant increases in 
shrimp effort are not expected in the foreseeable future.
    The fourth issue on the economic analysis dealt with the economic 
impacts associated with the loss of shrimp from and purchase/
installation of new BRDs given the fishery's poor economic condition. 
As previously indicated, the RIR for this rule fully discusses the 
fishery's poor economic condition and its causes. Regarding the rule's 
economic impacts, not all of the 1,912 vessels with Gulf shrimp 
moratorium permits will be directly affected by this rule. 
Approximately 313 permitted vessels will not be directly impacted since 
they are not currently participating in the fishery. Further, 478 
vessels will not be impacted since, based on the best available data, 
they are currently using BRDs that will still be allowable under this 
rule.
    In addition, the impacts to 696 other vessels, currently using the 
``fisheye'' BRD, are expected to be negligible. Although these vessels 
are expected to switch to more expensive BRDs, these BRDs also have a 
lower shrimp loss on average than the BRDs these vessels currently use. 
Further, the adverse impacts arising from the need to purchase more 
expensive BRDs would be mitigated in the first year by NMFS' provision 
of one free BRD to most of these vessels. As a result, the net effect 
on these vessels is most likely zero and potentially positive.
    Conversely, the analysis acknowledges that adverse economic impacts 
will be imposed on vessels using the ``Gulf fisheye'' BRD and 
particularly the expanded mesh BRD. Specifically, for the 414 vessels 
currently using the ``Gulf fisheye'' BRD, the rule is expected to 
impose a loss equal to 2 percent of their average annual gross revenue. 
NMFS acknowledges that, under current economic conditions, such losses 
could cause some vessels to alter their current operations in an effort 
to either reduce costs or increase revenues. Such changes might 
include, but not be limited to, reducing effort, the number of crew, or 
crew revenue shares, or switching to other fisheries. The impact on 
most of these vessels would be mitigated in the first year by NMFS' 
provision of one free BRD.
    For the 11 vessels currently using the expanded mesh BRD, a more 
substantial loss is expected. NMFS acknowledges that this loss is 
expected to create additional operational changes since these losses 
are likely not sustainable.
    Based on the above discussions, NMFS believes that it has fully 
accounted for all of the economic impacts arising from this rule given 
the prevailing poor economic conditions in the fishery.
    As of March 26, 2007, a Federal Gulf shrimp moratorium permit is 
required to fish for shrimp in the Gulf EEZ. At the time the analysis 
for this rule was conducted, the number of vessels possessing a Federal 
Gulf shrimp moratorium permit was 1,912. While these totals have not 
been updated for this final rule, an update would not be expected to 
substantially affect any determinations or average expected impacts 
contained in the original analysis. Also at the time the analysis for 
this rule was conducted, 2005 and 2006 were the most recent years for 
which complete and finalized landings and revenue data for this 
fishery. In developing the FRFA, NMFS used available preliminary data 
for 2007 to supplement the 2005 and 2006 data. Complete and finalized 
landings and revenue data for 2007 are now available, but a review of 
that information indicates that it would not substantively affect the 
results of the analysis. Specifically, as expected, the number of 
vessels participating in the fishery decreased in 2007. Since shrimp 
prices also increased slightly, average landings and revenue per 
permitted vessel increased in 2007. However, fuel prices also increased 
in 2007 and at a faster rate than shrimp prices. Therefore, the 
increase in vessel revenue was likely offset by a similar increase in 
operating expenses which in turn implies that the average, permitted 
vessel participating in the fishery was operating at an

[[Page 68359]]

economic loss in 2007 comparable to that experienced in 2006.
    Of the 1,912 vessels issued moratorium permits, 1,599 vessels were 
active in the Gulf food shrimp fishery in either 2005 or 2006, as 
demonstrated by recorded landings in the Gulf shrimp fishery landings 
file for the years 2005 and 2006. Between 2003 and 2006, participation 
in the fishery by permitted vessels has continually declined, 
particularly in 2006, and preliminary data suggest participation may 
have decreased further in 2007. This trend is expected to continue in 
the foreseeable future. It is unknown whether the 313 permitted vessels 
not active during the 2005 or 2006 seasons fished during the 2007 
season, so these vessels have not been included in the analysis of 
directly impacted vessels. Should these 313 vessels become active in 
the future, they could be directly impacted at that time.
    Of the 1,599 active permitted vessels, an estimated 478 vessels are 
presently using BRDs that will still be allowable under this final 
rule. These vessels will not be required to switch to new BRDs or 
change the placement of their ``fisheye'' BRD. The other 1,121 active 
permitted vessels presently using BRDs that will not be allowable under 
this final rule will have to change the location of their current BRDs 
or switch to other BRDs. Thus, it is estimated that 1,121 vessels will 
be directly impacted by this final rule.
    The average annual gross revenue per active permitted vessel in 
2005-2006 was approximately $196,943 (2006 dollars). The maximum 
average annual gross revenue reported by an active permitted vessel 
during this period was $965,462. However, substantial differences in 
average annual revenues exist by vessel size. For the large vessel 
group (60 ft (18.3 m) in length or greater), the average annual revenue 
per vessel was approximately $221,017 in 2005-2006. For small active 
permitted vessels (less than 60 ft (18.3 m) in length), the average 
annual revenue per vessel was approximately $61,267 in 2005-2006. The 
distribution of annual revenues for small vessels is also considerably 
more heterogeneous than for large vessels reflecting the fact that the 
vast majority of large vessels operate on a full-time basis while, for 
small vessels, some operate on a full-time basis and others only on a 
part-time basis.
    On average, small active permitted vessels are also smaller in 
regards to almost all of their physical and operational attributes, 
such as smaller crews, fewer and smaller nets, and less engine 
horsepower and fuel capacity. Small vessels are also older on average. 
Almost all large vessels are steel-hulled. Steel hulls are also the 
most common hull-type among small vessels, though more than 50 percent 
of these vessels have fiberglass or wood hulls. More than two-thirds of 
the large vessels have freezing capabilities while few small vessels 
have such equipment. Small vessels still rely on ice for refrigeration 
and storage. A few of the small vessels are so small that they rely on 
live wells for storage.
    Both large and small active permitted Gulf shrimp vessels are 
highly dependent on Gulf food shrimp landings and revenues. In 2005-
2006, the percentage of revenues arising from food shrimp landings was 
nearly 99 percent for large vessels and approximately 94 percent for 
small vessels.
    Finally, according to previous projections, on average, both small 
and large Gulf shrimp vessels were experiencing significant economic 
losses, ranging from a -27 percent rate of return (net revenues/gross 
revenues) in the small vessel sector to a -36 percent rate of return in 
the large vessel sector (-33 percent on average for the fishery as a 
whole). Although more current estimates are not available, preliminary 
results from a survey of permitted vessels indicate that the average 
active permitted Gulf shrimp vessel, whether large or small, was still 
operating at an economic loss in 2006. Therefore, any additional 
financial burden could hasten additional exit from the fishery.
    The Small Business Administration defines a small business in the 
commercial fishing industry as an entity that is independently owned 
and operated, is not dominant in its field of operation (including its 
affiliates), and has combined annual receipts not in excess of $4.0 
million annually (NAICS codes 114111 and 114112, finfish and shellfish 
fishing). Based on the average annual revenues for the fishery provided 
above, all shrimp vessels expected to be directly impacted by this 
final rule are determined, for the purpose of this analysis, to be 
small entities. As explained above, this final rule is expected to 
directly affect the 1,121 active permitted vessels that are not 
equipped with BRDs that will be allowed under this final rule, or 59 
percent of all permitted vessels and 70 percent of active permitted 
vessels. Thus, NMFS determines that this rule will affect a substantial 
number of small entities.
    Adverse direct effects expected as a result of this final rule will 
only accrue to certain vessels in the Gulf EEZ commercial shrimp 
fishery. The extent to which particular small entities' profits will be 
reduced by the proposed action is critically dependent on whether the 
1,121 potentially impacted shrimp vessel owners decide to employ the 
predominantly used and produced ``fisheye'' BRD in the allowable 
position, which would be the most expedient option and minimize 
immediate out-of-pocket expenses, or switch to the modified Jones-Davis 
BRD or the extended funnel BRD which have a significantly lower average 
shrimp loss. Two other BRDs will be available, specifically the Jones-
Davis and composite panel BRDs. However, due to the lower average 
shrimp loss associated with the extended funnel and modified Jones-
Davis BRDs, and the lower cost of the modified Jones-Davis BRD relative 
to the Jones-Davis BRD (but not the composite panel BRD), the extended 
funnel and modified Jones-Davis BRDs would be economically preferable. 
Therefore, this analysis assumes that these will be the BRDs of choice.
    Assuming all noncompliant BRDs will be replaced, approximately 
6,400 replacement BRDs will be required under this final rule. NMFS has 
contracted for approximately 1,000 of the economically preferable BRDs 
to be produced for free distribution to vessels that will be forced to 
change their current BRDs as a result of this final rule. It is 
expected that one free BRD will be provided to each vessel to ensure 
that the benefits will be widely distributed. Because there are many 
more large vessels than small vessels, and the small vessels that will 
potentially need to switch to new BRDs will likely only need to 
purchase three BRDs, as compared to six BRDs for large vessels, it is 
assumed for purposes of this analysis that the free BRDs will be 
provided only to large vessels.
    This analysis considers that the shrimp industry will have 
approximately six months after publication of the final rule to meet 
the compliance requirements of the rule. This should allow net shops 
sufficient time to produce the remaining 5,400 BRDs which are expected 
to be needed in the shrimp industry.
    The delayed effective date of this final rule will help ensure the 
new requirement occurs during the off-season, which will allow vessel 
captains additional time to determine the best BRD to use and the best 
methods to use their new BRDs according to their particular vessel's 
operations prior to the peak summer season. Thus, while it may take 
time for vessel captains to learn how to re-configure their gear so 
that the gear and gear modifications (BRDs and TEDs) operate in an 
optimal

[[Page 68360]]

manner with respect to shrimp retention, the timing of this final rule 
should minimize the potential for any initial higher than expected 
shrimp losses as a result of vessel captains moving up the ``learning 
curve.''
    Therefore, in general, the actual impacts of this final rule are 
expected to be approximated by the impacts associated with use of the 
extended funnel or modified Jones-Davis BRDs. This general conclusion 
assumes that vessel owners will make prudent use of the time they are 
given to test the gear and that the relatively high average shrimp loss 
associated with the ``fisheye'' BRD in the allowable position will 
provide sufficient economic incentive to switch to a different BRD as 
soon as possible.
    Regardless of the new BRD adopted, the estimated ten large vessels 
and one small vessel currently using the expanded mesh BRD are expected 
to experience a substantial economic loss as a result of this final 
rule. Even if these vessels switch to the extended funnel BRD or 
modified Jones-Davis BRD, these vessels are projected to experience an 
estimated annual loss of approximately $17,000 per vessel, or 
approximately 8 percent of their average annual gross revenues, as a 
result of higher costs associated with these relatively more expensive 
new BRDs and reduced revenues resulting from their higher average 
shrimp loss relative to the expanded mesh BRD. This loss is expected to 
be sufficient to cause additional operational changes, since the losses 
would not likely be sustainable.
    For the estimated 70 small and 626 large vessels currently using 
the ``fisheye'' BRD in the 9-(2.7-m) to 11-ft (3.4-m) position, the 
expected impacts of this final rule are considerably less burdensome, 
despite the increased operating costs due to the higher costs of the 
new BRDs, and potentially even beneficial. Specifically, for the 70 
small vessels, a switch to the extended funnel BRD is projected to lead 
to slightly higher annual revenues, approximately $200, or 0.3 percent 
of their average annual gross revenues, because of the lower average 
shrimp loss from these alternative BRDs. A switch to the modified 
Jones-Davis BRD is projected to result in a slight annual loss of $400, 
or 0.6 percent of their average annual gross revenues. The effects of 
either switch would likely be imperceptible and, therefore, are 
expected to cause no change in these vessels' fishing operations.
    For the 626 large vessels, a switch to the extended funnel BRD is 
projected to result in an annual gain of approximately $2,000, or 
approximately 1 percent of average annual revenues, again due to the 
higher average shrimp retention. Under a switch to the modified Jones-
Davis BRD, the higher costs associated with purchasing this more 
expensive BRD are approximately equivalent to the increase in revenues 
resulting from its relatively lower average shrimp loss, thus resulting 
in no net change. As with the small vessels, all impacts would be 
expected to be imperceptible and cause no change in these vessels' 
fishing operations. Additionally, any potential adverse impacts in the 
first year should be mitigated by the provision of the one free BRD.
    The estimated 27 small and 387 large vessels currently using the 
``Gulf fisheye'' BRD are projected to experience greater losses than 
the vessels currently using the ``fisheye'' BRD in the 9-(2.7-m) to 11-
ft (3.4-m) position. Specifically, for the 27 small vessels, a switch 
to the extended funnel BRD or modified Jones-Davis BRD is projected to 
result in an estimated annual loss of approximately $1,400, or 
approximately 2 percent of the vessel's average annual gross revenues. 
This loss will result from both an increase in operating costs, as 
these BRDs are relatively more expensive, and a decrease in annual 
revenues, since they also have a slightly higher average shrimp loss. 
For the 387 large vessels, a switch to the extended funnel BRD or 
modified Jones-Davis BRD is projected to result in an estimated annual 
loss of approximately $4,000, or approximately 2 percent of the 
vessel's average annual gross revenues. Again, this loss will be due to 
both an increase in operating costs and higher average shrimp loss. 
Under current economic conditions, such losses to both the small and 
large vessels could cause some vessels to alter their current 
operations in an effort to either reduce costs or increase revenues. 
Such changes might include, but not be limited to, reducing effort, the 
number of crew, or crew revenue shares, or switching to other 
fisheries. The impacts on the large vessels will be slightly mitigated 
in the first year by the provision of the one free BRD.
    In previous rulemaking (73 FR 8219, February 13, 2008) to revise 
the bycatch reduction criterion, NMFS considered a number of 
alternatives. For purposes of this rulemaking, however, given the 
bycatch reduction criterion established in that previous rulemaking, 
the only alternative considered to this final rule was the status quo, 
or no action. Since the status quo would not change the existing list 
of allowable BRDs in the Gulf shrimp fishery, there would be no new 
impacts associated with this action. However, new information collected 
between 2001 and 2003 indicated that the expanded mesh BRD, the ``Gulf 
fisheye'' BRD, and the ``fisheye'' BRD in its standard configuration, 
as used in the Gulf shrimp fishery, do not meet the 30-percent finfish 
reduction criterion. According to NMFS' Southeast Fisheries Science 
Center (SEFSC) estimates, the fisheye device in its most common 
configurations achieves between a 14- and 23-percent reduction in 
finfish bycatch by weight, and the expanded mesh BRD achieves a 17-
percent reduction in finfish bycatch by weight.
    Allowing for the provisional certification of BRDs achieving a 25-
percent reduction in finfish bycatch by weight, which has been 
established via previous rulemaking (73 FR 8219, February 13, 2008), 
could significantly reduce the potential adverse economic impacts of 
this final rule on small entities since it will allow for the temporary 
certification of the extended funnel BRD in the western Gulf. Relative 
to the other BRDs that meet the 30-percent finfish reduction criterion, 
the extended funnel BRD's average shrimp loss is considerably lower 
and, thus, so are the economic impacts potentially resulting from this 
final rule if shrimp vessel owners switch to this particular BRD. The 6 
months vessel owners will be given should be sufficient to allow them 
to switch to this BRD or the modified Jones-Davis BRD, which will 
mitigate any adverse economic impacts from the final rule. Additional 
mitigation in the first year will accrue due to the distribution of the 
1,000 free BRDs.

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.

    Dated: November 12, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.

0
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.

0
2. In Sec.  622.4, paragraphs (h)(1)(i) through (h)(1)(iv) are removed, 
and the first sentence of paragraph (a)(2)(v) is revised to read as 
follows:

[[Page 68361]]

Sec.  622.4  Permits and fees.

    (a) * * *
    (2) * * *
    (v) Gulf reef fish. For a person aboard a vessel to be eligible for 
exemption from the bag limits, to fish under a quota, as specified in 
Sec.  622.42(a)(1), or to sell Gulf reef fish in or from the Gulf EEZ, 
a commercial vessel permit for Gulf reef fish must have been issued to 
the vessel and must be on board. * * *
* * * * *
Sec.  622.16 [Amended]
    3. In Sec.  622.16, paragraph (b)(2)(iv) is removed.

0
4. In Sec.  622.33, paragraph (a)(2)(ii)(A) is revised to read as 
follows:


Sec.  622.33  Caribbean EEZ seasonal and/or area closures.

    (a) * * *
    (2) * * *
    (ii)* * *
    (A) Bajo de Cico.

------------------------------------------------------------------------
                                                      North       West
                      Point A                          lat.      long.
------------------------------------------------------------------------
A                                                   18[deg]15  67[deg]26
                                                          .7'        .4'
B                                                   18[deg]15  67[deg]23
                                                          .7'        .2'
C                                                   18[deg]12  67[deg]23
                                                          .7'        .4'
D                                                   18[deg]12  67[deg]26
                                                          .7'        .4'
A                                                   18[deg]15  67[deg]26
                                                          .7'        .4'
------------------------------------------------------------------------

* * * * *

0
5. In Sec.  622.38, the second sentence of paragraph (d)(1) is revised 
to read as follows:


Sec.  622.38  Landing fish intact.

* * * * *
    (d) * * *
    (1) * * * See Sec.  622.31(n) regarding a prohibition on the use of 
Gulf reef fish as bait. * * *
* * * * *

0
6. In Sec.  622.41, paragraphs (g)(3)(i)(A),(B), and (E) are revised to 
read as follows:


Sec.  622.41  Species specific limitations.

* * * * *
    (g) * * *
    (3) * * *
    (i) * * *
    (A) Fisheye--see Appendix D to part 622 for separate specifications 
in the Gulf and South Atlantic EEZ.
    (B) Gulf fisheye--South Atlantic EEZ only.
* * * * *
    (E) Expanded mesh--South Atlantic EEZ only.
* * * * *

0
7. In Appendix D to part 622, sections C and D are revised to read as 
follows:


APPENDIX D TO PART 622--SPECIFICATIONS FOR CERTIFIED BRDS

* * * * *
    C. Fisheye.
    1. Description. The fisheye BRD is a cone-shaped rigid frame 
constructed from aluminum or steel rod of at least 1/4 inch (6.35-mm) 
diameter, which is inserted into the cod end to form an escape opening.
    2. Minimum Construction and Installation Requirements. The fisheye 
has a minimum escape opening dimension of 5 inches (12.7 cm) and a 
minimum total escape opening area of 36 in\2\ (91.4 cm\2\). When the 
fisheye BRD is installed, no part of the lazy line attachment system 
(i.e., any mechanism, such as elephant ears or choker straps, used to 
attach the lazy line to the cod end) may overlap the fisheye escape 
opening when the fisheye is installed aft of the attachment point of 
the cod end retrieval system.
    (a) In the Gulf EEZ, the fisheye BRD must be installed at the top 
center of the cod end of the trawl to create an opening in the trawl 
facing in the direction of the mouth of the trawl no further forward 
than 9 ft (2.7 m) from the cod end drawstring (tie-off rings).
    (b) In the South Atlantic EEZ, the fisheye BRD must be installed at 
the top center of the cod end of the trawl to create an escape opening 
in the trawl facing the direction of the mouth of the trawl no further 
forward than 11 ft (3.4 m) from the cod end tie-off rings.
    D. Gulf fisheye.
    1. Description. The Gulf fisheye is a cone-shaped rigid frame 
constructed from aluminum or steel rod of at least \1/4\ inch (6.35-mm) 
diameter, which is inserted into the top center of the cod end, and is 
offset not more than 15 meshes perpendicular to the top center of the 
cod end to form an escape opening.
    2. Minimum Construction and Installation Requirements. The Gulf 
fisheye has a minimum escape opening dimension of 5 inches (12.7 cm) 
and a minimum total escape opening area of 36 in\2\ (91.4 cm\2\). To be 
used in the South Atlantic EEZ, the Gulf fisheye BRD must be installed 
in the cod end of the trawl to create an escape opening in the trawl, 
facing in the direction of the mouth of the trawl, no less than 8.5 ft 
(2.59 m) and no further forward than 12.5 ft (3.81 m) from the cod end 
tie-off rings, and may be offset no more than 15 meshes perpendicular 
to the top center of the cod end. When the Gulf fisheye BRD is 
installed, no part of the lazy line attachment system (i.e., any 
mechanism, such as elephant ears or choker straps, used to attach the 
lazy line to the cod end) may overlap the fisheye escape opening when 
the fisheye is installed aft of the attachment point of the cod end 
retrieval system.
* * * * *
    8. In addition to the amendments above, in 50 CFR part 622, remove 
the word ``codend,'' wherever it occurs, and add in its place the words 
``cod end''.
[FR Doc. E8-27351 Filed 11-17-08; 8:45 am]
BILLING CODE 3510-22-S