[Federal Register Volume 78, Number 249 (Friday, December 27, 2013)]
[Rules and Regulations]
[Pages 78776-78779]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-30949]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 130710605-3999-02]
RIN 0648-BD41


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Shrimp Fishery of the Gulf of Mexico; Establish Funding 
Responsibilities for the Electronic Logbook Program

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

ACTION: Final changes to management measures.

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SUMMARY: NMFS establishes funding responsibilities for an upgrade to 
the shrimp electronic logbook (ELB) program as described in a framework 
action to the Fishery Management Plan for the Shrimp Fishery of the 
Gulf of Mexico (FMP), as prepared by the Gulf of Mexico (Gulf) Fishery 
Management Council (Council). Newer and more efficient ELB units have 
been purchased by NMFS for the Gulf shrimp fleet and are available for 
installation on Gulf shrimp vessels. Therefore, NMFS establishes a 
cost-sharing program to fund the ELB program. NMFS will pay for the 
software development, data storage, effort estimation analysis, and 
archival activities for the new ELB units, and selected vessel permit 
holders in the Gulf shrimp fishery will pay for installation and 
maintenance of the new ELB units and for the data transmission from the 
ELB units to a NOAA server. The purpose of these changes is to ensure 
that management of the shrimp fishery is based upon the best scientific 
information available and that bycatch is minimized to the extent 
practicable.

DATES: These final changes to management measures are effective January 
27, 2014.

ADDRESSES: Electronic copies of the framework action, which includes a 
Regulatory Flexibility Act analysis and a regulatory impact review, may 
be obtained from the Southeast Regional Office Web site at http://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_fisheries/shrimp/index.html.
    Comments regarding the burden-hour estimates or other aspects of 
the collection-of-information requirements contained herein may be 
submitted in writing to Anik Clemens, Southeast Regional Office, NMFS, 
263 13th Avenue South, St. Petersburg, FL 33701; and OMB, by email at 
OIRA Submission@omb.eop.gov, or by fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Susan Gerhart, Southeast Regional 
Office, NMFS, telephone: 727-824-5305; email: Susan.Gerhart@noaa.gov.

SUPPLEMENTARY INFORMATION: The shrimp fishery of the Gulf is managed 
under the FMP. The FMP was prepared by the Council and is implemented 
through regulations at 50 CFR part 622 under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act).
    On October 22, 2013, NMFS published the proposed changes to 
management measures for the ELB program for the Gulf shrimp fishery and 
requested public comment (78 FR 62579). The proposed changes to 
management measures and the framework action outline the rationale for 
the actions contained herein. A summary of the actions implemented by 
the framework action is provided below.
    These final changes in management measures require vessel permit 
holders in the Gulf shrimp fishery to share in the cost of the ELB 
program. NMFS will inform vessel owners that they have been selected to 
participate in this program, and that they have a total of 90 days to 
comply with the regulations to install and activate their new ELB units 
(30 days to activate a wireless account and 60 days to install the new 
ELB unit) after it has been shipped by NMFS and received by the vessel 
owner. Vessel owners selected to participate in the ELB program must

[[Page 78777]]

contact Verizon Wireless, the wireless provider, by email at 
VZWGulfCoastELB@VerizonWireless.com, or by phone: 888-211-3258, to 
initiate service for the new ELB unit.
    The changes to the management measures are being published pursuant 
to section 304(b)(3) of the Magnuson-Stevens Act.

Changes From the Proposed Changes to Management Measures

    As was proposed, selected vessel permit holders in the Gulf shrimp 
fishery will cover the costs of installing and maintaining the ELB 
units and the cost of data transmission from the units to a NOAA 
server. The cost of data transfer, however, which is the major cost to 
the vessel permit holders in the Gulf shrimp fishery, was previously 
estimated to be $720 per vessel annually. Recent negotiations with the 
wireless provider have substantially reduced this cost to approximately 
$240 per vessel annually.

Comments and Responses

    NMFS received a total of nine public comments on the proposed 
changes to management measures; one from an organization and the 
remainder from individuals. Some commenters submitted suggestions for 
the Gulf shrimp fishery that were outside the scope of the framework 
action, including comments regarding monitoring catch. Seven commenters 
were against the framework action, one was in favor of the framework 
action, and one expressed no position for or against the changes but 
was in support of using modern vessel monitoring system (VMS) type 
technology. Specific comments related to the actions contained in the 
framework action, as well as NMFS' respective responses, are summarized 
below.
    Comment 1: The cost sharing program will impose a financial burden 
on fishermen who already have high expenses because of increased 
operating costs and a depressed economy.
    Response: The Council considered several funding alternatives for 
continuing the ELB program, and NMFS agrees with the Council's choice 
to implement the cost-sharing program. The Council and NMFS recognize 
the burden of the cost-sharing program on the vessel permit holders in 
the Gulf shrimp fishery. As analyzed in the framework action, NMFS will 
cover the cost of the ELB equipment, software development, data 
storage, effort estimation analysis, and archival activities. Vessel 
permit holders in the Gulf shrimp fishery selected to participate in 
the ELB program will cover the costs of installing and maintaining the 
ELB units and the cost of data transmission from the units to a NOAA 
server. The installation cost of approximately $200 per vessel is a 
one-time cost; maintenance costs are periodic; and the data transfer 
cost is annual. The cost of data transfer, which is the major cost to 
the vessel permit holders in the Gulf shrimp fishery selected to 
participate in the ELB program, was previously estimated at $720 per 
vessel annually. Recent negotiations with the wireless provider have 
substantially reduced this cost to approximately $240 per vessel 
annually to receive the same service. The division of cost is similar 
to that for the Gulf reef fish VMS program. NMFS will constantly 
evaluate the ELB program, including its costs, particularly with 
respect to the burden on the vessel permit holders in the Gulf shrimp 
fishery.
    Comment 2: Fishermen should not be required to reveal where they 
fish. Information provided by the ELB unit transmissions should be 
confidential.
    Response: The new ELB program collects the same data as the prior 
ELB program. NMFS adheres to strict confidentiality guidelines with 
regards to its various data collection programs, including the ELB 
program. To date, there have been no reported issues related to the 
confidentiality of information collected through the ELB program. NMFS 
will work with the wireless provider to ensure that data transmission 
under the new ELB program is secure, as in the VMS program for the Gulf 
reef fish fishery.
    Comment 3: The new ELB units are not ready to be implemented and 
will not work.
    Response: The new ELB units have been tested on several vessels 
that also have the prior ELB units. The new ELB units are functioning 
and the data collected by both units match. It is expected that some 
issues may arise with the implementation of a new system. However, NMFS 
is confident that any issues that arise regarding the functioning of 
the ELB units can be efficiently resolved.
    Comment 4: The prior ELB program worked so it should be continued. 
NOAA should not be involved in the ELB program and should let the 
previous contractor continue the program.
    Response: Continuing the prior ELB program would necessarily result 
in either NMFS or vessel permit holders in the Gulf shrimp fishery 
being required to cover the full cost of the program. Funding for the 
prior ELB program through the current contractor will cease at the end 
of 2013 (the end of the contract), and no new Federal money is expected 
to be forthcoming. Therefore, NMFS does not have the means to cover the 
full cost of the ELB program at this time. Additionally, NMFS 
recognizes that it would be very burdensome for vessel permit holders 
in the Gulf shrimp fishery to bear the full cost of the ELB program. 
Unless NMFS or the vessel permit holders in the Gulf shrimp fishery can 
secure outside funding, a cost-sharing program is the most appropriate 
funding option, and is therefore the option that the Council chose to 
implement at this time. NMFS' direct administration of the new ELB 
program is expected to reduce the cost of the ELB program and allow for 
a more efficient method of retrieving, archiving, and analyzing the 
data. The total annual cost of the new ELB program (after the first 
year) will be $434,000 for 500 vessels, which is substantially less 
than the $975,000 annual cost for the prior ELB program, for 500 
vessels. If all 1,500 vessels with Federal permits are selected to 
participate in the new ELB program, the cost would still be less than 
that of the prior ELB program, at $674,000. As needed, NMFS will 
consult with experts, including the current contractor for the prior 
ELB program, in administering the program.
    Comment 5: NOAA should fund the entire program. NOAA should have 
put the ELB program in the budget and could use BP funds to support it.
    Response: As noted above, NMFS does not have the resources to fund 
the entire ELB program. NMFS' current budget is restricted from adding 
new programs for funding. Just because a program is not placed within 
the Federal budget, it does not lessen its importance to the government 
mission. There are many high priority programs which the Federal 
government oversees that may not have appropriations to fully fund them 
on an annual basis. Cost-sharing with user groups is one method that is 
used to fund high priority programs that do not have enough 
appropriations to be implemented solely under the Federal budget. 
Further, no funding has been made available for this program as a 
result of the Deepwater Horizon MC252 incident. If outside funding 
becomes available in the future to cover the cost of the entire ELB 
program, cost-sharing may not be needed. If additional funding is 
acquired that is less than the total cost of the new ELB program, the 
vessel permit holders in the Gulf shrimp fishery's portion could be 
covered or reduced with that funding.

[[Page 78778]]

    Comment 6: Data from the ELB program are important for future 
management of the Gulf shrimp fishery, however, there might be a less 
expensive way to obtain it.
    Response: Since before the creation of the existing program, the 
Council and NMFS have explored numerous options for data collection in 
the Gulf shrimp fishery. During the development of Amendment 13 to the 
Gulf Shrimp FMP, which originally established the existing ELB 
requirement, the Council and NMFS determined that the ELB program was 
an accurate and cost effective means for collecting the necessary 
information from the fishery. Requiring industry to bear a portion of 
the costs of the program does not undermine these prior determinations 
relative to the program. Further, NMFS has determined that these 
modifications to the program best achieve the Council's objectives, 
while minimizing, to the extent practicable, the associated burdens on 
industry. Should more cost effective means of collecting the 
information be developed in the future, industry and the public at 
large are encouraged to recommend these innovations to the Council and 
NMFS for future implementation.

Classification

    The Regional Administrator, Southeast Region, NMFS has determined 
that these final changes to management measures are necessary for the 
conservation and management of Gulf shrimp and is consistent with the 
FMP, the Magnuson-Stevens Act, and other applicable law.
    This rule has been determined to be not significant for purposes of 
Executive Order 12866.
    A Final Regulatory Flexibility Analysis (FRFA) was prepared for 
this action. The FRFA incorporates the Initial Regulatory Flexibility 
Analysis (IRFA), a summary of the significant economic issues raised by 
public comment, NMFS' responses to those comments, and a summary of the 
analyses completed to support the action. The FRFA follows.
    No public comments specific to the IRFA were received. However, 
some comments regarding the cost burden of the new ELB program were 
received, and these are addressed in the comments and responses 
section, specifically Comments 1 and 5. No changes in management 
measures were made in response to public comments.
    NMFS agrees that the Council's choice of preferred alternative 
would best achieve the Council's objectives for the framework action to 
the FMP while minimizing, to the extent practicable, the adverse 
effects on fishers, support industries, and associated communities. The 
preamble for these final changes to management measures provides a 
statement of the need for and objectives of the management measures in 
the framework action.
    The Magnuson-Stevens Act provides the statutory basis for the final 
changes to the management measures. No duplicative, overlapping, or 
conflicting Federal rules have been identified.
    The prior ELB program for the Gulf shrimp fishery, established 
through the final rule to implement Amendment 13 to the FMP in 2006, 
required selected vessels to carry ELB units. These final changes to 
the management measures require selected vessels to carry new ELB units 
that are more modern and technologically advanced. From the standpoint 
of technical and professional skills needed, the new ELB units do not 
materially differ from the current ELB units. In fact, the new ELB 
units no longer require a technician to meet vessels to pull and 
program the memory card. Data collected by ELB units will be 
automatically transmitted to NMFS servers via a cellular phone 
connection activated when the vessel is within non-roaming cellular 
range. A key feature introduced by the final changes is that the vessel 
permit holders in the Gulf shrimp fishery will share the cost of the 
ELB program, whereas currently all costs of the ELB program are borne 
by the Federal government. Each federally permitted shrimp vessel 
selected to participate will be responsible for the one-time cost of 
installing the ELB unit ($200) and the annual cost of data transmission 
($240) through a contract with the service provider. The vessel permit 
holders will also be responsible for the cost of repairing or replacing 
the ELB unit. The replacement of one ELB unit is estimated at about 
$425.
    NMFS expects the final changes to management measures to directly 
affect commercial fishermen with valid or renewable Federal Gulf shrimp 
permits for harvesting penaeid shrimp in the Gulf exclusive economic 
zone (EEZ). The Small Business Administration (SBA) has established 
small entity size criteria for all major industry sectors in the United 
States, including fish harvesters. A business involved in fish 
harvesting is classified as a small business if independently owned and 
operated, is not dominant in its field of operation (including its 
affiliates), and its combined annual receipts are not in excess of 
$19.0 million from finfish fishing (NAICS code 114111), or $5.0 million 
from shellfish fishing (NAICS code 114112), or $7 million from other 
marine fishing (NAICS code 114119) for all of its affiliated operations 
worldwide. For for-hire vessels, all qualifiers apply except that the 
annual receipts threshold is $7.0 million (NAICS code 487210, 
recreational industries). The SBA periodically reviews and changes, as 
appropriate, these size criteria. On June 20, 2013, the SBA issued a 
final rule revising the small business size standards for several 
industries effective July 22, 2013 (78 FR 37398). This rule increased 
the size standard for commercial finfish harvesters from $4.0 million 
to $19.0 million and commercial shellfish harvesters from $4.0 million 
to $5.0 million. Neither this rule, nor other recent SBA rules, changed 
the size standard for for-hire vessels.
    The Federal Gulf shrimp permit has been placed under a moratorium 
since 2007. At the start of the moratorium, 1,915 vessels qualified and 
received Gulf shrimp permits. Over time, the number of permitted shrimp 
vessels declined, and in 2012 there were 1,582 such permitted vessels. 
According to the Southeast Regional Office Web site, the Constituency 
Services Branch (Permits) unofficially listed 1,431 holders of Gulf 
shrimp permits as of June 25, 2013.
    During the period from 2006 through 2010, an average of 4,582 
vessels fished for shrimp in the Gulf EEZ and state waters, of which 20 
percent held Gulf shrimp permits. Despite being a minority of the total 
number, vessels with Gulf shrimp permits accounted for an average of 67 
percent of total shrimp landings and 77 percent of total ex-vessel 
revenues. Of all the vessels with Gulf shrimp permits, 73 percent were 
active and 27 percent were inactive (i.e., did not commercially fish).
    During the period from 2006 through 2010, an average federally 
permitted shrimp vessel generated revenues from commercial fishing 
ranging from around $205,000 to $244,000. An average active federally 
permitted vessel had revenues from commercial fishing ranging from 
around $233,000 to $274,000. As may be expected, revenues from 
commercial fishing for an average inactive permitted vessel were 
practically none.
    Based on the revenue figures above, all federally permitted shrimp 
vessels are expected to be directly affected by the final changes to 
the management measures and are determined for the purpose of this 
analysis to be small business entities. Hence, NMFS determined that the 
action would affect a substantial number of small entities.
    Because NMFS determined that all entities expected to be affected 
by the final changes to the management measures are small entities, the 
issue of disproportional effects on small versus

[[Page 78779]]

large entities does not arise in the present case.
    The vessel permit holders' share of the cost of the new ELB program 
consists of a one-time cost of installing the ELB unit, an annual cost 
of transmitting data from the ELB unit to NMFS servers, and a periodic 
cost of repairing or replacing defective ELB units. On a per vessel 
basis, the installation cost is $200 and the annual data transmission 
cost is $240. In the event of equipment failure, the cost of repair 
could run from a de minimis amount to $425, which is the cost of 
replacing an ELB unit.
    During the period from 2006 through 2010, an average permitted 
shrimp vessel had negative net operating revenues in all years, except 
2009. Its net profits (i.e., net operating revenues plus net receipts 
from non-operating activities, such as government payments) were 
positive in 2006 ($2,961), 2009 ($1,238), and 2010 ($94,279). However, 
it should be noted that the 2010 profits came mainly from earnings 
associated with the Deepwater Horizon MC252 (DWH) oil spill in the form 
of damage claims and revenues from the vessel's participation in BP's 
clean-up program. Without these oil spill related revenues, net profits 
in 2010 would have been negative $2,480.
    For active federally permitted shrimp vessels, net operating 
revenues were negative in all years from 2006 through 2010. In 
addition, profits in all of those years were negative, except in 2010. 
Again, the positive net profits in 2010 were due to revenues associated 
with the DWH oil spill. The situation is worse for inactive permitted 
shrimp vessels, with net revenues and profits (except for 2010) being 
more negative than those of active permitted shrimp vessels. The 
average inactive permitted shrimp vessel had higher net profit in 2010 
than the average active permitted shrimp vessel.
    The cost of the new ELB program will impose a significant impact on 
the profits of an average permitted shrimp vessel. The effects will be 
even more significant for vessels that are not active in the fishery. 
It is noted that there are some vessels that are substantially more 
profitable than the average vessel, and thus will be able to absorb the 
per vessel cost of the ELB program. However, there are other vessels 
that are only slightly more profitable than the average vessel, and 
very likely the impacts on their profits will be significant.
    The following discussion analyzes the alternatives that were not 
selected as preferred by the Council.
    The management measures contained in the framework action continue 
the ELB program. Being adjudged and proven to be very effective in 
collecting shrimp effort data in the Gulf EEZ, continuation of the ELB 
program has been deemed necessary so that NMFS can effectively carry 
out its mandate to base conservation and management measures on the 
best scientific information available and to minimize bycatch to the 
extent practicable. To date, no other means of collecting shrimp effort 
data have been developed and tested that would be more technically and 
economically effective than the ELB. Therefore, no other alternative to 
collect shrimp effort data was considered.
    However, three alternatives, including the preferred alternative, 
were considered for funding the ELB program. As noted above, the 
preferred alternative will provide for cost sharing between NMFS and 
the vessel permit holders in the Gulf shrimp fishery. The second 
alternative will require NMFS to bear the entire cost of the ELB 
program. NMFS recognizes the vital role that the ELB program has played 
in estimating shrimp effort in the Gulf, but due to budget constraints, 
NMFS cannot fully fund the ELB program. The third alternative will 
require the Gulf shrimp vessel permit holders to fund the entire cost 
of the ELB program. For several years now, the Gulf shrimp industry has 
been in relatively dire financial condition. Thus the Gulf shrimp 
fishery indicated that it could not possibly fund the entire cost of 
the ELB.
    These final changes to management measures contain collection-of-
information requirements subject to the requirements of the Paperwork 
Reduction Act (PRA), which have been approved by Office of Management 
and Budget (OMB) under control number 0648-0543. NMFS estimates the 
requirement for the Gulf shrimp fishery to share in the costs of the 
new ELB units, which includes installation ($200) and data transmission 
($240), to average 1 hour and $440 per response for the first year. 
After the first year, NMFS estimates the requirement for vessel permit 
holders in the Gulf shrimp fishery to share in the costs of the new ELB 
units, which includes data transmission, to average 1 hour and $240 per 
response. These estimates of the public reporting burden include the 
time for reviewing instructions, gathering and maintaining the data 
needed, and completing and reviewing the collection-of-information.
    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 PRA, unless that collection-of-information displays a currently 
valid OMB control number.

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

    Dated: December 20, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries,performing the functions and 
duties of the Deputy Assistant Administratorfor Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2013-30949 Filed 12-26-13; 8:45 am]
BILLING CODE 3510-22-P