Kristen M. Fletcher, J.D.
 

In April, the National Marine Fisheries Service announced the adoption of a rule requiring Gulf shrimp trawlers to use bycatch reduction devices (BRDs) in their nets. The rule went into effect on May 14 and it follows recommendations made by the Gulf of Mexico Fishery Management Council last year. The NMFS and the Council anticipate saving millions of juvenile red snapper and other finfish from being caught in shrimp trawls.
 

What is a BRD?
 

A BRD is a device installed in shrimp nets that provides a small opening in the top of the shrimp trawl for red snapper and other finfish to escape while retaining the shrimp catch. Gulf shrimpers trawl in areas where juvenile red snapper and other finfish are found, picking up these fish as bycatch, which results in high mortality. In 1997, the Gulf of Mexico Fishery Management Council called for use of the BRDs on most trawls used by the offshore Gulf shrimp fleet due to the severe bycatch of juvenile red snapper in shrimp nets. Several stock assessments have cited shrimp trawling as the cause of bycatch and mortality of up to 80% of the annual juvenile red snapper. The NMFS acted on this recommendation by adopting the BRD rule.

NMFS has approved three types of BRDs: the Gulf fisheye BRD, the Jones Davis BRD, and the Fisheye BRD.⁽¹⁾ As of May 14, the BRDs are required in try nets with a headrope length greater than 16 feet for shrimp trawlers in the EEZ of the Gulf of Mexico west of Cape San Blas, Florida. (See figure A.) The first two weeks of the implementation, NMFS enforced the rule on an "educational" level, meaning that shrimpers trawling without the BRDs in the nets were not cited but instead informed of the requirement. On May 29, the NMFS began enforcing the rule using citations and fines.

The NMFS Rule
 

To ensure that the use of BRDs is effective in lowering the level of red snapper bycatch, the NMFS split the red snapper season to allow for a comprehensive scientific review which began May 1. The review consists of a four-month review to determine if BRDs reduce the juvenile red snapper bycatch mortality in shrimp trawls by at least 60% under actual operating conditions. If the review shows that bycatch mortality reduction is more than 50% but less than 60%, a portion of the remaining 3.12 million pound quota will be released proportional to the efficiency of the BRDs.
 

BRDs & the Red Snapper Fishery
 

The NMFS bycatch rule is decidedly tangled with red snapper management and corresponding regulations. Recognizing the severe impact of shrimp trawls on the red snapper fishery, the Gulf Council relied upon the reduction in bycatch when it adopted a 9 million pound quota for the red snapper fishery for 1998.⁽²⁾ The NMFS accepted the Council's quota but designed the season so that if bycatch was not significantly reduced, NMFS retained the option to close the commercial and/or recreational fisheries. Specifically, the 1998 red snapper fishing year is divided into two seasons: January through August and September through December. During the January - August period, NMFS released 6 million pounds of the 9 million pound quota for harvest. In May, the NMFS began a study to test the effectiveness of BRDs at reducing the mortality of juvenile red snapper under actual operating conditions. If the study shows a 60% reduction in bycatch, as relied upon by the Council, then the remaining 3.12 million pounds of the red snapper quota will be released for the September - December period.⁽³⁾ If not, then the commercial fishery will remain closed for the year.

Along with splitting the 1998 red snapper season, the NMFS also reduced the current recreational red snapper bag limit from 5 to 4 fish so that the recreational fishery can remain open until at least October even if the results of the bycatch study reveal less than 60% reduction in bycatch.
 

Reactions to the Rule
 

While the red snapper fishery may benefit from the BRD requirement, Gulf of Mexico shrimpers view it as a raw deal. Led by a number of shrimper industries including the Texas Shrimp Association, the Louisiana Shrimp Association, and the Alabama Seafood Association, the Gulf shrimpers filed suit against NMFS for violation of federal procedure in imposing BRDs regulations. The complaint alleges violations of the Magnuson-Stevens Fishery Conservation and Management Act, the Regulatory Flexibility Act, and the Administrative Procedure Act, noting that the government failed to adequately consider alternatives for reducing unintended bycatch.⁽⁴⁾ The shrimpers claim to be the "scapegoat for the mismanagement of the red snapper fishery," specifically citing lack of enforcement of the recreational red snapper fishery. The associations disagree with NMFS science and assert that juvenile red snapper have a natural high rate of mortality with or without bycatch and are not excludible from shrimp trawls. Finally, the associations allege that NMFS has overestimated the total mortality of red snapper due to bycatch.

The U.S. Congress has become aware of the shrimpers' discontent. In April, Representative Ron Paul of Louisiana introduced H.R. 3735 to "disapprove a rule requiring use of bycatch-reduction devices in the shrimp fishery of the Gulf of Mexico."⁽⁵⁾ It asserts that the bycatch rule violates the Magnuson Act and the Administrative Procedure Act. Specifically, the bill disapproves the rule because it is not based on the best available information, the information used significantly understates the negative impact on the shrimp fishery and coastal communities, and because the NMFS has not established that BRDs are practicable.
 

ENDNOTES
 

1. See http://caldera.sero.nmfs.gov/fishery/newsbull.98/nr98-029.evy for information regarding the three approved BRDs (May 12, 1998). The Jones-Davis and Gulf Fisheye BRDs have been approved through November 16, 1998.

2. See The Red Snapper Fishery: High Stakes in Limited Entry, 18:1 Water Log 10 (1998) for a discussion of the 1998 red snapper quota.

3. If the research demonstrates that the reduction is greater than 50% but not 60%, then a portion of the remaining 3.12 million pounds will be released proportional to the efficiency of the BRDs. INSERT RULE CITE.

4. Texas Shrimp Association Press Release, May 11, 1998.

5. H.R. 3735 (1998). The bill is co-sponsored by representatives from Texas, Louisiana,
 

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