02-19977. Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Shrimp Fishery of the Gulf of Mexico; Amendment 11

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement Amendment 11 to the Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico (Amendment 11), as prepared and submitted by the Gulf of Mexico Fishery Management Council. This final rule requires owners or operators of all vessels harvesting shrimp in the exclusive economic zone of the Gulf of Mexico (Gulf EEZ) to obtain a commercial vessel permit for Gulf shrimp; prohibits the use of traps to harvest royal red shrimp in the Gulf EEZ; and prohibits the transfer of royal red shrimp at sea. In addition, NMFS informs the public of the approval by the Office of Management and Budget (OMB) of the collection-of-information requirements contained in this final rule and publishes the OMB control numbers for those collections. The permit requirement will provide an accurate and efficient method of identifying and quantifying the number of vessels in the Gulf EEZ shrimp fishery. The prohibition of the use of traps for royal red shrimp is intended to prevent gear conflict and potential overfishing. The prohibition on transfer of royal red shrimp at sea is intended to enhance enforceability of the prohibition on use of traps in the fishery.

DATES:

This final rule is effective September 6, 2002, except for the addition of § 622.4(a)(2)(xi) and the revision of § 622.6(a)(1)(i) which are effective December 5, 2002.

ADDRESSES:

Comments regarding the collection-of-information requirements contained in this final rule should be sent to Robert Sadler, Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702, and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC 20503 (Attention: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT:

Dr. Steve Branstetter, telephone: [phone], fax: [phone], e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

The fishery for shrimp in the Gulf 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.

NMFS approved Amendment 11 on October 17, 2001. On February 25, 2002, NMFS published a proposed rule to implement Amendment 11 and requested comments on the proposed rule through April 11, 2002 (67 FR 8503). The rationale for the measures in Amendment 11 is provided in the preamble to the proposed rule and is not repeated here.

Comments and Responses

Comments received during public comment periods for the Amendment and the proposed rule are considered together in this final rule. Comments opposing the permitting system included a minority report submitted by two members of the Council, and five letters from industry representatives (two of which were submitted during both public comment periods). Comments supporting the permitting system included letters from three environmental organizations (one organization submitted a comment under each comment period). Additionally, NMFS received several hundred form letters stating general support for the permitting action.

Vessel Permits

Comment 1: Opposing views were received regarding the need for a Federal shrimp vessel permit system as a mechanism to collect information regarding the shrimp fishery. Two individuals and one organization opposed the proposed permitting system noting that information was available through existing state and Federal programs to determine vessels and effort in the exclusive economic zone (EEZ) of the Gulf of Mexico. Specific issues identified in these letters are addressed as separate comments herein.

In contrast, three environmental organizations submitted comments and several hundred form letters were received stating general support for the permitting action as a means to gather information concerning bycatch in the fishery and as an enforcement tool that would enhance sea turtle conservation. Two of the environmental groups provided detailed comment in support of their position, noting that the existing Federal records include information compiled by port agents over several years, which may not be representative for the current year. Also, state licensing files do not necessarily distinguish between vessels that fish in state and Federal waters and when compiled among states would include duplicate records for those vessels licensed in multiple states.

Response: Data collection and identification systems do exist through either state or Federal systems, but none is comprehensive or specifically identifies shrimp fishing vessels that are actively working in the EEZ. The NMFS-maintained Shrimp Landings File (SLF) represents landings by individual shrimp vessels over the course of a year, but does not necessarily indicate whether the effort occurred in state or Federal waters. The purpose of the NMFS Vessel Operating Units File (VOUF) is to maintain a record of vessel characteristics (i.e., length, age, horsepower, etc.), for all active shrimp fishing vessels; this file may include several vessels that are not currently active in the fishery. Thus, the VOUF contains a list of all vessels found in the SLF, plus vessels fishing in the inshore areas, and vessels suspected to still be active in the fishery. Neither of these data files provides an indication of whether the vessels fish in the EEZ. Similarly, state licensing files or trip tickets may indicate active fishing vessels, but these files will not provide information on whether a vessel fishes in state or Federal waters, or both. In some instances, these licenses are not specific to a fishery, and, thus, they do not readily identify shrimp fishing vessels as opposed to vessels operating in other fisheries. Trip tickets are not uniform across the Gulf states, and the GulfFIN clearinghouse that will standardize this information is still in development. Additionally, these data collection systems, designed for different purposes, are not standardized as to the information that is collected. The immediate benefit of a Federal permit system is to accurately identify the existing, active (on an annual basis) universe of shrimp fishing vessels in the Gulf of Mexico EEZ.

A Federal permit system that creates a complete listing of all active vessels fishing in the EEZ is a prerequisite tool for any statistically robust data collection program intended to canvass or randomly sample the activities of the shrimp fishery in the EEZ. Previous data collection programs have been hampered by the inability to specifically identify the universe of vessels fishing for shrimp in the Gulf EEZ. Without this information, sampling programs have depended on non-random sampling. A more robust analysis of the shrimp fishery is only possible through stratified random sampling of the existing fleet, and that kind of sampling is only possible where the specific vessels are readily identifiable.

The ability to sanction permits is an enforcement tool and could apply for violations of certain statutes and where there is an unpaid and overdue civil penalty or criminal fine imposed under any marine resource law administered by the Secretary of Commerce. Additional details concerning this specific issue are addressed in the response to Comment 11.

Comment 2: The Secretary of Commerce has the authority to implement measures that are needed to collect data under section 401 of the Magnuson-Stevens Act. Two comments suggested that a Gulf-wide vessel registration system be implemented under the auspices of the Gulf States Marine Fisheries Commission (Commission).

Response: In regards to the vessel registration system proposal required in Section 401 of the Magnuson-Stevens Act, NMFS proposed utilizing the Vessel Identification System that is under development by the US Coast Guard (USCG). However, the USCG is still reviewing options to implement this system, and its implementation is not anticipated in the near future. Trip tickets are not uniform across the Gulf states, and the GulfFIN clearinghouse under development by the Commission will provide a standardization of this information. This program will greatly enhance the overall data collection systems for Gulf of Mexico fisheries, but it will not identify the number of shrimp vessels fishing in the EEZ.

Comment 3: The shrimp fishery has been participating in a data collection program for several years. The Congressionally mandated Incidental Harvest Research Program collected substantial amounts of information regarding the characterization of the catch and bycatch species found in shrimp trawls. That program led to additional data collection efforts currently underway using observers and logbooks to document the port of departure, fishing time, catch, and the location of fishing effort.

Response: The industry contributions to collecting data on the catch and effort in the shrimp fishery were an integral part of the development of Council actions to implement Amendment 9 to the Gulf shrimp FMP. Continuing data collection efforts will benefit additional management decisions. However, without a method to identify the universe of vessels active in the fishery, these programs have relied on voluntary participation by the shrimp fleet. The results of NMFS' 1992-1996 Incidental Harvest Research Program, as well as the Council's subsequent actions implemented in Amendment 9 that were based on the results of that program, have been questioned because the sampling was not conducted through a stratified random sampling effort across the various strata of vessels. Similarly, during the summer 1998 Red Snapper/Shrimp Research Program, the Southeast Fisheries Science Center attempted to implement a trial logbook program. That attempt was only partially successful because it failed to reach many of the intended participants in a timely manner. These programs used the available information systems to identify potential participants, but even in combination, these other information systems do not directly provide current information on the number and location of shrimp fishing vessels operating in the EEZ. A major benefit of a Federal permit system is in providing opportunity to design statistically robust data collection programs to benefit management of the fishery resources of the region.

Comment 4: Amendment 11 does not state specifically what data are missing resulting in the need for a new data collection program. Data on fishing effort and catch are already collected by NMFS port agents and state agencies.

Response: Amendment 11 does not propose to implement a biological or fishery data collection system; it proposes to implement a vessel permitting system, which by itself is a data collection tool to identify those shrimp vessels actively fishing in the EEZ each year. With a permit system as a source to identify a representative stratified random sample of shrimp vessels, research to collect biological, fishery, social, and economic data on the fishery could be accomplished using observers, logbooks, vessel monitoring systems or other data collection methods. Once the Agency has more accurately determined the number of fishery participants through the permit system, then appropriate methods of data collection will be determined. Anticipated improvements from the permitting and subsequent sampling procedures would include more precise red snapper bycatch estimations and more accurate determinations of economic and community impacts. Information collected under such future programs would aid in the formulation of sound management measures for the shrimp fishery and those finfish fisheries that are affected by bycatch and bycatch mortality arising from the shrimp fishery. See also response to comment 10.

Comment 5: Amendment 11 does not state what supporting documents will be required to obtain a Federal fishing permit. There is no discussion of the conditions by which NMFS could reject the issuance or renewal of such a permit. Failure or delay in issuing or renewing a Federal permit in a timely manner because applications are incomplete or have a lack of supporting documentation could have a substantial economic impact on the vessel owner. Automatic renewal of permits should be issued with expiration dates spread evenly over the year, rather than with a single expiration date, to avoid administrative delays. Electronic (internet-based) permitting and payment of permitting fees via credit cards would additionally speed up the process.

Response: The conditions for obtaining and renewing a shrimp vessel permit, including the time frames for issuance, are a NMFS administrative procedure, and the Councils usually defer specific application procedures to NMFS. The proposed application procedures and requirements were described in the proposed rule (67 FR 8503, February 25, 2002). Current regulations (50 CFR 622.4(b)(3) and 50 CFR 622.4(h)) do provide the information that needs to be submitted to obtain and renew vessel permits and address the timing for applying and renewing permits. The procedures for shrimp permit applications will be based on these existing regulations.

Regarding the comments on internet-based permit issuance and fee payment, NMFS currently is developing the resources and technological capability for these opportunities. NMFS is actively examining the feasibility of changing to such a system to improve customer service without adversely affecting the accuracy and usefulness of the permit database.

Comment 6: Given that the permits would be non-transferrable, what would happen if the owner sold his permitted vessel?

Response: Open-access permits, such as the shrimp vessel permits, do not require transfer provisions. Once the vessel transaction is complete, the new owner may simply apply to obtain a new permit without relying on the more lengthy permit transfer process. As a result, the rule does not provide for permit transfers.

Comment 7: Without qualifying criteria the number of permits issued may be inflated due to speculation or part-time fishing in the EEZ, thus rendering the database unusable as a measure of effort.

Response: The database generated by the issuance of vessel permits is not intended as a direct measure of effort. The database will provide an enumeration of the vessels that either fish or have the intent to fish in the EEZ on an annual basis. However, by using the identification information from a permit system, those vessels can then be contacted to gather the information necessary to estimate fishing effort. (See also the responses to Comments 3 and 4).

Comment 8: National standard 5 states in part that “conservation and management measures shall, where practicable, consider efficiency in the utilization of fishery resources...”. Efficiency in the utilization of fishery resources is enhanced through minimizing the regulatory burden on the harvesters. This measure will be costly to implement, more complex than the existing system, and will result in less rather than more efficiency.

Response: NMFS disagrees that this would be a complex or costly regulatory burden. This amendment includes a collection-of-information requirement subject to the Paperwork Reduction Act; namely, a requirement to submit an application for a Gulf shrimp commercial vessel permit. In addition, NMFS revised the Multiple Fishery Vessel Application (Application) that will be used for the Gulf shrimp permit and is used for other fishery permits issued by the NMFS Southeast Regional Office. NMFS added data fields for the applicant's birth date, street address, and county; vessel net tonnage; vessel gross tonnage; and vessel hull identification number. The collection of this information has been approved by the Office of Management and Budget, OMB control number 0648-0205. The public reporting burden for the collection of information related to the Gulf shrimp permit application and the additional data elements on the Application are estimated to average 20 minutes per response. This estimate of the public reporting burden includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collections of information.

Comment 9: National standard 6 states that “conservation and management measures shall take into account and allow for variations among, and contingencies in, fishery, fishery resources, and catches.” Vessel permits are almost exclusively used as fishery management tools in fisheries where the intent is to control fishing effort to protect and rebuild stocks. This is not the case in the shrimp fishery. Shrimping in the EEZ is not a threat to shrimp stocks, and good fishery management practices do not require the level of effort scrutiny needed to manage other fisheries.

Response: Mandatory vessel permitting proved to be an effective way of obtaining information on the number of potentially active vessels and participants in other commercial and for-hire fisheries operating in the Gulf, including the reef fish and coastal migratory pelagics fisheries. These data combined with logbook reporting, observer reports, and other surveys provided managers with essential information on effort, catch, bycatch, and other important parameters regarding these fisheries. Having a known universe of vessels operating in the Gulf shrimp fishery will help provide the same opportunities for scientists and managers to collect data on effort, catch, bycatch, and other important parameters of both targeted shrimp stocks, as well as bycatch species that may or may not be under separate management regimes.

Comment 10: National standard 7 states that “conservation and management measures shall, where practicable, minimize cost and avoid unnecessary duplication.” The estimated cost for implementation of shrimp permits is an unjustified burden on the taxpayers of this country and to the shrimping industry. The current data collection systems contain the information necessary to manage the fishery; therefore an additional permitting requirement will increase cost and create unnecessary duplication.

Response: Amendment 11 states that the public burden associated with vessel permits and data collection are estimated to be approximately $350,000 per year, based on an anticipated issuance of 7,000 permits at a cost of $50 per permit. NMFS costs associated with the issuance of these permits is estimated to be $350,000. The funds generated from permit fees are not retained by NMFS and revert to the General Treasury, thus offsetting any public (taxpayer) burden. There are no expected cost increases to be borne by state and other local governments from implementing a vessel permitting system for the shrimp fishery.

NMFS has assessed both the costs and benefits of the intended regulations and has determined that this action is justified. The permit cost of $50 per application, which represents the cost to the agency in processing and issuing the permit, represents less than one percent of the profits realized by the average Gulf of Mexico shrimp vessel, and burden time (estimated at 20 minutes per permit application) is minimal. The increased scientific information that can be collected by using the permit system to randomly sample the shrimp fleet will provide a greater benefit to the various Gulf of Mexico fisheries as a whole than the cost to develop the permit system. NMFS also does not believe that the permit system is duplicative and addressed its rationale for that finding in the Response to Comment 1.

Comment 11: National standard 8 states that “Conservation and management measures shall....take into account the importance of fishery resources to fishing communities in order to (a) provide for the sustained participation of such communities, and (b) to the extent practicable, minimize adverse economic impacts on such communities.” The shrimp fishery in the Gulf of Mexico is the most valuable fishery and involves the largest number of participants. Consequently, more people are affected by regulations on this fishery. Because of the many regulations applicable to this fishery under both the Endangered Species Act (ESA) and the Magnuson-Stevens Act (turtle-excluder-devices (TEDs), BRDs, closed areas, closed seasons, etc.), violations are proportionally more costly to shrimp vessel owners as opposed to other finfish fisheries. Additionally, the Gulf shrimp fishery consists of a large number of vessels that are not owner-operated. Given that an owner has little control over the operator while the vessel is at sea, owners could be economically ruined by operators who may violate regulations leading to a permit sanction.

Response: Participants in other fisheries are subject to requirements under more than one statute, such as the Magnuson-Stevens Act, Endangered Species Act, and/or the Marine Mammal Protection Act. For example, summer flounder fishermen are similarly required to use TEDs. As such, participants in the

Gulf shrimp fishery will not be subject to greater or disproportionate costs as a result of regulatory violations as compared to other fisheries. So long as permit holders remain in compliance with applicable law, they will not be subject to any additional economic burden. NMFS cannot insulate owners from liability, as the Magnuson-Stevens Act explicitly establishes liability for any person, including owners and operators of vessels involved in fisheries violations, as well as liability for the vessel, its cargo, and appurtenances.

Royal Red Shrimp Traps

Comment 1: One comment suggested that NMFS should more carefully consider alternative gears to trawls for shrimp fishing, noting that trawls are identified as some of the most destructive fishing gear currently in use. Given that the royal red shrimp fishery is prosecuted in deep water, and that deep water corals have long life spans and infrequent recruitment, trawls could severely damage deep water reefs. The value of an alternative to trawls would depend on the intensity of fishing in a particular area, but should be considered.

Response: At this time, NMFS agrees with the Council's position that the prohibition of traps in the royal red shrimp fishery is beneficial. Allowing the use of traps could result in gear conflicts and entanglements that could compromise vessel safety considering the depth of water where this fishery is prosecuted. Additionally, the existing trawl fishery has been harvesting royal red shrimp at a level near maximum-sustainable-yield for several years. The addition of a new gear and additional harvesting efforts could lead to overfishing. NMFS recognizes the potential impacts to habitat from trawling operations, and should the Council choose to change allowable gears in this fishery, at a later time, NMFS would give careful consideration to the option.

Classification

On October 17, 2001, NMFS approved Amendment 11 based on a determination that it was consistent with the national standards of the Magnuson-Stevens Act and other applicable law. In making that determination, NMFS took into account the data, views, and comments received during the comment period on Amendment 11.

This final rule has been determined to be significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed rule for this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule. Comments were received regarding the economic impacts (see Comments 8, 10, and 11) but did not alter the determination and appropriateness of the certification. As a result, no regulatory flexibility analysis was prepared.

Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid Office of Management and Budget (OMB) control number.

This rule contains collection-of-information requirements subject to the PRA--namely, a requirement to submit an application for a Gulf shrimp commercial vessel permit and a vessel identification requirement. In addition, NMFS is revising the Multiple Fishery Vessel Application (Application) that will be used for the Gulf shrimp permit and is used for other fishery permits issued by the NMFS Southeast Regional Office. NMFS is adding data fields for the applicant's birth date, street address, and county; vessel net tonnage; vessel gross tonnage, and vessel hull identification number. The permit application requirement and the new application data field requirements have been approved by OMB, OMB control number 0648-0205. The public reporting burden for the collection of information related to the Gulf shrimp permit application and the additional data elements on the Application is estimated to average 20 minutes per response. This estimate of the public reporting burden includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collections of information. The vessel identification requirement was previously approved by OMB under control number 0648-0358, with an estimated response time of 45 minutes total per vessel. Send comments regarding these burden estimates or any other aspect of the collection-of-information requirements, including suggestions for reducing the burden, to NMFS and to OMB (see ADDRESSES).

List of Subjects

15 CFR Part 902

• Reporting and recordkeeping requirements

50 CFR Part 622

• Fisheries
• Fishing
• Puerto Rico
• Reporting and recordkeeping requirements
• Virgin Islands

Dated: August 1, 2002.

William T. Hogarth,

Assistant Administrator for Fisheries, National Marine Fisheries Service.

For the reasons set out in the preamble, 15 CFR part 902 and 50 CFR part 622 are amended as follows:

15 CFR Chapter IX

PART 902—NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

1. The authority citation for part 902 continues to read as follows:

Authority: 44 U.S.C. 3501 et seq.

2. In § 902.1, the table in paragraph (b), under 50 CFR, is amended by revising the entry for 622.6 to read as follows:

§ 902.1

OMB Control numbers assigned pursuant to the Paperwork Reduction Act.

* * * * *

(b) * * *

CFR part of section where the information collectionrequirement is located	Current OMB control number (all numbers begin with 0648-)
*    *    *    *    *
50 CFR
*    *    *    *    *
622.6	-0358 and -0359
* * * * *

50 CFR Chapter VI

PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

3. The authority citation for part 622 continues to read as follows:

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

4. In § 622.2, the definition of “Shrimp” is revised to read as follows:

 622.2

Definitions and acronyms.

* * * * *

Shrimp means one or more of the following species, or a part thereof:

(1) Brown shrimp, Farfantepenaeus aztecus.

(2) White shrimp, Litopenaeus setiferus.

(3) Pink shrimp, Farfantepenaeus duorarum.

(4) Royal red shrimp, Hymenopenaeus robustus.

(5) Rock shrimp, Sicyonia brevirostris.

(6) Seabob shrimp, Xiphopenaeus kroyeri.

* * * * *

5. In § 622.4, paragraph (a)(2)(xi) is added to read as follows:

§ 622.4

Permits and fees.

(a) * * *

(2) * * *

(xi) Gulf shrimp. For a person aboard a vessel to fish for shrimp in the Gulf EEZ or possess shrimp in or from the Gulf EEZ, a valid commercial vessel permit for Gulf shrimp must have been issued to the vessel and must be on board.

* * * * *

6. In § 622.6, paragraph (a)(1)(i) introductory text is revised to read as follows:

§ 622.6

Vessel and gear identification.

(a) * * *

(1) * * *

(i) Official number. A vessel for which a permit has been issued under § 622.4 must display its official number--

* * * * *

7. In § 622.31, paragraph (k) is added to read as follows:

§ 622.31

Prohibited gear and methods.

* * * * *

(k) Traps for royal red shrimp in the Gulf EEZ and transfer at sea. A trap may not be used to fish for royal red shrimp in the Gulf EEZ. Possession of a trap and royal red shrimp on board a vessel is prohibited. A trap used to fish for royal red shrimp in the Gulf EEZ may be disposed of in any appropriate manner by the Assistant Administrator or an authorized officer. In addition, royal red shrimp cannot be transferred in the Gulf EEZ, and royal red shrimp taken in the Gulf EEZ cannot be transferred at sea regardless of where the transfer takes place.