[Federal Register Volume 64, Number 133 (Tuesday, July 13, 1999)]
[Rules and Regulations]
[Pages 37690-37700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17488]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 990330083-9166-02; I.D. 031999B]
RIN 0648-AK32


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Shrimp Fishery of the Gulf of Mexico; Certification of 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 procedure for adjusting 
management measures of the Fishery Management Plan for the Shrimp 
Fishery of the Gulf of Mexico (FMP), NMFS establishes procedures for 
the testing and certification of bycatch reduction devices (BRDs) for 
use in shrimp trawls in the exclusive economic zone (EEZ) in the Gulf 
of Mexico. Consistent with these procedures, NMFS certifies the Jones-
Davis and Gulf fisheye BRDs for use in the Gulf of Mexico. NMFS also 
establishes the specifications for the Jones-Davis, Gulf fisheye, and 
fisheye BRDs. The intended effect is to foster the development and 
provide for the certification of additional BRDs.

DATES: Effective July 13, 1999, except for the collection-of-
information requirements in: Sec. 622.41(h)(3)(i) and (h)(3)(ii), 
Appendix--Gulf of Mexico Bycatch Reduction Device Testing Protocol 
Manual, and Appendix I--Qualifications of Observer. This rule is being 
issued prior to the Office of Management and Budget's (OMB) approval of 
the information collection requirements in: Sec. 622.41(h)(4)(i) and 
(h)(4)(ii), Appendix--Gulf of Mexico Bycatch Reduction Device Testing 
Protocol Manual, and Appendix I--Qualifications of Observer. When OMB 
approval is received, the effective dates of these paragraphs and 
appendices will be published in the Federal Register.

ADDRESSES: Copies of the regulatory impact review (RIR) may be obtained 
from the Southeast Regional Office, NMFS, 9721 Executive Center Drive 
N., St. Petersburg, FL 33702.
    Comments regarding the collection-of-information requirements 
contained in this rule should be sent to Edward E. Burgess, Southeast 
Regional Office,

[[Page 37691]]

NMFS, and to the Office of Information and Regulatory Affairs, Office 
of Management and Budget (OMB), Washington, DC 20503 (Attention: NOAA 
Desk Officer).
    Requests for copies of the Gulf of Mexico Bycatch Reduction Device 
Testing Protocol Manual should be sent to the Southeast Regional 
Office, NMFS.

FOR FURTHER INFORMATION CONTACT: Steve Branstetter, NMFS, 727-570-5305.

SUPPLEMENTARY INFORMATION: The fishery for shrimp in the EEZ of the 
Gulf of Mexico is managed under the FMP. The FMP was prepared by the 
Gulf of Mexico Fishery Management Council and is implemented under the 
authority of the Magnuson-Stevens Fishery Conservation and Management 
Act by regulations at 50 CFR part 622.
    In accordance with the FMP's framework procedure for adjusting 
management measures, NMFS published and requested comments on a 
proposed rule (64 FR 23039, April 29, 1999) to establish procedures for 
the testing and certification of BRDs for use in shrimp trawls in the 
EEZ in the Gulf of Mexico. The preamble to the proposed rule described 
the testing and certification procedures and the background and 
rationale for them. That information is not repeated here.
    In this rule, in addition to establishing the BRD testing and 
certification procedures, NMFS is also certifying the Jones-Davis and 
Gulf fisheye BRDs, providing the specifications for construction and 
installation of these BRDs (specifications), and amending the fisheye 
BRD specifications. NMFS previously certified the Jones-Davis and Gulf 
fisheye BRDs by interim rule (63 FR 27499, May 19, 1998; 63 FR 64430, 
November 20, 1998). The interim rule published May 19, 1998, and 
amended by the interim rule published November 20, 1998, also 
established the specifications for the newly certified BRDs. The 
fisheye BRD, as distinguished from the Gulf fisheye BRD, was certified 
in a final rule published April 16, 1997 (62 FR 18536). The 
specifications included in this final rule are identical to the 
specifications in the April 16, 1997, final rule (62 FR 18536), as 
amended by the interim rule of November 20, 1998 (63 FR 64430).
    To be certified for use in the Gulf of Mexico, a BRD must reduce 
the bycatch mortality of juvenile red snapper by a minimum of 44 
percent from the average level of mortality for these age groups during 
the years 1984-1989 (bycatch reduction criteria). The NMFS' Galveston 
Laboratory assembled a database of field evaluations for the Gulf 
fisheye and Jones-Davis BRDs under a research plan developed by the 
Gulf and South Atlantic Fisheries Development Foundation and an initial 
BRD-testing protocol developed by NMFS prior to the development of the 
protocol established by this rule. The NMFS Pascagoula Laboratory 
reviewed this database to determine whether the BRDs met the red 
snapper bycatch reduction criterion established in Amendment 9 to the 
FMP. NMFS' Pascagoula Laboratory determined that the data were 
collected according to the established protocol at the time. That 
protocol required that an adequate sample consisting of data from no 
less than 30 successful tows be collected aboard commercial shrimp 
trawlers in the act of fishing shoreward of the 100-fm (183-m) depth 
contour west of 85 deg.30' W. long., that trawl nets be equipped with 
certified hard turtle-excluder-devices (TEDs), that only outboard nets 
be used as control and experimental nets, and that the control and 
experimental nets be alternated from one side of the vessel to the 
other during the period of the test. NMFS' analyses of the data 
collected on the Gulf fisheye and the Jones-Davis BRD indicated that 
the BRDs met the bycatch reduction criterion. These analyses formed the 
basis for interim certification of these BRDs pending the 
implementation of the protocol in this final rule. The conditions under 
which the data were collected and analyzed for the interim 
certification also meet the criteria outlined in the protocol 
implemented by this rule. Therefore, NMFS certifies in this rule the 
Jones-Davis and Gulf fisheye BRDs for use in the Gulf of Mexico shrimp 
fishery.

Comments and Responses

    Comments were received from three entities on the proposed rule; an 
industry organization, a consulting firm, and a Sea Grant office. 
Relevant comments and responses are included here.

Pre-certification Phase Testing

    Comment 1: One commenter stated that the objective of the pre-
certification phase test should be to allow the applicant to examine 
the overall functionality of the proposed BRD design without a focus on 
red snapper exclusion or shrimp retention.
    Response: The pre-certification procedures are specifically 
designed to allow the applicant to modify the design and configuration 
of a prototype BRD during pre-certification phase testing and to 
evaluate the overall effectiveness and operational functionality of the 
prototype BRD. However, in addition to evaluating the operational 
functionality of the prototype BRD, the applicant will need to know if 
the prototype BRD has the potential to meet the red snapper bycatch 
reduction criterion. This information will allow the applicant to 
decide whether or not to apply for certification testing authorization.

Certification Phase Testing

    Comment 2: One commenter suggested that a particular BRD 
candidate's performance, as evaluated during a certification test, 
might not be applicable when the BRD is used in different styles of 
nets, or with different TEDs, or under different fishing conditions. 
The commenter suggested that, prior to certification, extensive 
commercial field evaluations of the BRD candidate be conducted under a 
variety of fishing conditions aboard different vessels and/or with 
different fishing gear designs to obtain statistically sound estimates 
of the BRD's true ability to meet the bycatch reduction criterion.
    Response: NMFS disagrees. The protocol describes a statistically 
valid procedure to determine whether a BRD candidate meets the bycatch 
reduction criterion, and, thus, can be certified for general use in the 
shrimp fishery. If a certified BRD is subsequently found not to meet 
the certification criterion, the protocol provides a mechanism for the 
Regional Administrator to decertify that particular BRD through the FMP 
framework procedure.
    Comment 3: Two commenters suggested that, even after the tuning 
tests are completed, the catch efficiency of the two nets used in the 
certification phase testing may begin to deviate over the 30-tow test 
period and that any such biases should be incorporated into the final 
statistical analyses.
    Response: The protocol requires that the BRD candidate be moved 
from the net on one side of the vessel to the net on the other side of 
the vessel at specific time intervals. This procedure is intended to 
negate any undetected net/side bias by introducing that bias into both 
the experimental net and control net data.
    Comment 4: Two commenters had several technical concerns about the 
procedures to be used when testing a soft TED for certification as a 
BRD, and recommended that both nets should be equipped with soft TEDs 
during both the tuning and certification phases of the certification 
test. The commenters were also concerned about an undue burden being 
placed on the trawler and its crew because installation of a soft TED 
must be done by a skilled installer, which will require the vessel to 
return to port between the tuning and certification phases. One of the

[[Page 37692]]

commenters further suggested that this problem could be avoided by 
testing the soft TED against a control net containing a disabled soft 
TED; this would ensure that the efficiency was similar between the two 
nets because they were both equipped with the same TED.
    Response: NMFS disagrees that the trawler or its crew, which is 
voluntarily participating in the test, will be unduly burdened from 
having to return to port to replace the TED in the experimental net. 
NMFS disagrees that the test should be conducted using a soft TED in 
the experimental net and a disabled soft TED in the control net. BRD 
performance is to be measured against the performance of a standard 
net, and a standard net is a net equipped with a functioning certified 
TED. Using hard TEDs in both the control and experimental nets during 
the tuning tows will ensure that the two nets are fishing with 
equivalent efficiency, and, once the soft TED is installed in the 
experimental net, any changes in catch rates can be attributed to the 
influence of the soft TED.
    Comment 5: Two commenters requested clarification of the statement 
``A gear change (i.e., changing nets, doors, or rigging) during a test 
constitutes the beginning of a new test.'', noting that, under this 
definition, the repair of damaged gear that did not change the original 
gear configuration of the trawl could still be interpreted as meeting 
the criterion for beginning a new test.
    Response: NMFS intends the word ``gear change'' in this section of 
the protocol to represent wholesale replacement of gear components, 
such as doors, nets, or alterations in the configuration, including 
such actions as shortening tickler chains, adjusting the leg lines, or 
removing or adding headrope floats or footrope weights. These kinds of 
changes would alter the fishing efficiency of that particular trawl 
array, and, thus the test would need to be re-started. NMFS does not 
intend the definition of ``gear change'' to include the repair of 
damaged components of the trawl array to the original configuration, 
such as sewing up tears in the net or repairing a damaged tickler 
chain.
    Comment 6: Two commenters questioned the requirement to restrict 
tow times during a test to a specific timeframe with an allowance of 
only 10 percent. They noted that consistent tow times do not 
necessarily represent normal fishing activities and that tow times 
might need to be adjusted, based on fishing conditions, during a test. 
One commenter noted that a 10-percent allowance for a tow-time range of 
2 to 8 hours could range from 12 to 48 minutes, thus introducing 
unnecessary bias into the calculations of catch-per-unit-effort and 
catch composition. This commenter indicated that this allowance was 
unnecessary and that tow times should be standardized.
    Response: NMFS recognizes that fishers do not necessarily tow their 
nets for a standard length of time, and that tow times may vary for 
reasons including changing environmental conditions or catch rates. BRD 
certification tests are to be conducted under normal operational 
conditions, but they must also be conducted in a scientifically 
rigorous manner suitable for standard statistical analyses. Any 
foreseeable deviations from the prescribed protocol must be described 
and justified in the application and must be approved by the Regional 
Administrator prior to beginning the certification test. Additionally, 
deviations from the prescribed protocol required by unforeseen events 
during a certification test must be made in a scientifically sound 
manner and must be described and explained in the final report 
submitted to the Regional Administrator. The Regional Administrator 
will evaluate the appropriateness of the deviation prior to making a 
final determination concerning the BRD candidate's ability to meet the 
certification criterion. NMFS disagrees with the comment that the tow 
times must be standardized without an allowance or that the allowance 
would introduce an unacceptable bias into the catch per unit of effort 
data. Catch per unit effort will not change if the catchability co-
efficient of the net does not change during the tow, which is a basic 
assumption of this sampling protocol. The ranges in tow time variations 
given as examples by the commenter are not applicable to any given 
test. The applicant will be establishing a specific tow time prior to 
beginning the tests, and, thus the allowance will remain constant as 
long as the applicant adheres to that designated tow time. Thus, no 
changes to the protocol are necessary.

Statistical Analysis

    Comment 7: Two commenters questioned the continued use of the 
Goodyear (1995) VPA-based stock assessment model for calculating 
fishing mortality reduction attributable to the BRD candidate. One 
commenter further noted that the more recent observer-based data sets 
indicated that the size distributions of red snapper in the shrimp 
trawl bycatch were different than the size distribution of the red 
snapper shrimp trawl bycatch data set used by Goodyear.
    Response: NMFS recently provided a report to the Gulf of Mexico 
Fishery Management Council summarizing a data collection effort by NMFS 
during the summer of 1998 concerning BRD efficiency. In that report, 
NMFS compared results from the original (1995) Goodyear procedure with 
results from an update of the underlying data set. Analyses by NMFS 
indicated that updates to the underlying information used by the 
Goodyear procedure agreed with the original analysis. NMFS will 
continue to evaluate the procedure for routine evaluations of BRD 
effectiveness as additional information becomes available and will 
implement any appropriate changes to this protocol through the FMP 
framework procedure.
    Comment 8: One commenter questioned the use of a two-sided 
confidence interval in the statistical analysis.
    Response: The BRD candidate will be evaluated for its ability to 
meet the bycatch reduction criterion through the use of a modified one-
sided t-test. The null hypothesis, R  Ro, will be 
rejected if t > talpha-1. This test will determine whether 
the BRD meets the certification criterion and is eligible for 
certification by the Regional Administrator. Confidence intervals, 
while illustrating the range of expected results of the BRD candidate, 
are not used as part of the certification determination.

Observer Requirements

    Comment 9: Two commenters expressed concerns about the requirement 
that the observer not have a previous or current financial relationship 
with the applicant, noting that this requirement would restrict certain 
agencies and organizations that have trained observers on staff from 
effectively participating as applicants in BRD certification testing.
    Response: NMFS disagrees. An applicant must select an observer from 
a list of qualified observers maintained by the Regional Administrator. 
A qualified observer who is associated with a specific organization or 
agency and who is on the list of observers maintained by the Regional 
Administrator could still participate in the test, as long as the 
organization or agency is not the applicant.
    Comment 10: Two commenters stated that the requirement for an 
observer to have a Bachelor's Degree in fishery biology or in a closely 
related field might exclude some very capable observers without 
degrees.
    Response: NMFS does not intend to exclude any qualified candidates 
from

[[Page 37693]]

being included on the list of qualified observers. The qualification 
criteria include having a Bachelor's Degree, having 6 months experience 
as an observer, or successfully completing a training course conducted 
or approved by the Director of the NMFS Southeast Fisheries Science 
Center. An observer candidate need meet only one of these three 
criteria. No changes are necessary.

Changes From the Proposed Rule

    In Sec. 622.7, paragraph (aa) has been revised to eliminate an 
incorrect cross reference and to clarify the intent of the prohibition.
    In Sec. 622.41, paragraph (h)(2) was revised to reflect 
certification of the Jones-Davis and Gulf fisheye BRDs in this rule. 
Also in Sec. 622.41, references to paragraph (h)(4) were revised to 
read (h)(3) to conform to reorganization of codified text due to 
expiration of interim rule text. Other than the paragraph designations, 
there were no changes to codified text.
    In Appendix D to part 622, paragraph C.2. was revised and 
paragraphs D and E were added to incorporate specifications for the 
Jones-Davis and Gulf fisheye BRDs certified in this rule and to 
incorporate a minor revision of the specifications for the fisheye BRD. 
These specifications, including the minor revision, are identical to 
those implemented previously by an interim rule that expired May 15, 
1999.
    In Appendix H to the Gulf of Mexico Bycatch Reduction Device 
Testing Protocol Manual, the explanations of type I and type II errors 
were corrected.

Classification

    This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration when this rule was proposed that, if adopted as 
proposed, it would not have a significant economic impact on a 
substantial number of small entities. No comments were received 
regarding this certification and the basis for it has not changed. As a 
result, a regulatory flexibility analysis was not prepared. Copies of 
the RIR are available (see ADDRESSES).
    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 OMB control number.
    This rule contains collection-of-information requirements subject 
to the PRA--namely, the BRD certification process, consisting of 
applications for pre-certification or certification of a new BRD, pre-
certification adjusting, the testing itself, the submission of the test 
results, application for observer position, and references for 
observers. These requirements have been submitted to OMB for approval. 
The public reporting burden for this collection of information which 
includes the application, pre-certification phase, testing, and 
submission of results, is estimated to average 211 hours. The public 
reporting burden for applying for an observer position will average 1 
hour per response and the burden for obtaining references will average 
1 hour per response. The collection consists of an Application Form, 
Vessel Information Form, Gear Specification Form, TED/BRD Specification 
Form, Station Sheet Form, Species Characterization Form, Length 
Frequency Form, and Condition and Fate Form. The average response time 
for each of these forms is 20 minutes, except for the Species 
Characterization Form which has a 5-hour response time and the 
Application Form which has a 2.3-hour response time. In addition, 4 
hours will be needed to prepare the final report. Send comments 
regarding these burden estimates or any other aspect of the collection-
of-information requirement, including suggestions for reducing the 
burden, to NMFS and to OMB (see ADDRESSES).
    These collection-of-information requirements are contained in 
Sec. 622.41(h)(3)(i) and (h)(3)(ii), Appendix--Gulf of Mexico Bycatch 
Reduction Device Testing Protocol Manual, and Appendix I--
Qualifications of Observer. This rule is being issued prior to approval 
by OMB of these information collection requirements. When OMB approval 
is received, a notice will be published in the Federal Register making 
the information requirements in those sections and appendices 
effective.
    This rule establishes the procedures for testing and certification 
of BRDs, thus providing the mechanism for increasing the number and 
types of certified BRDs available for use by the Gulf of Mexico shrimp 
trawl fishery. Certification of additional BRDs will provide the 
industry greater flexibility in choosing a BRD that is optimal for 
particular fishing operations and conditions. The BRD specifications 
incorporated in this rule are essential for the proper construction and 
installation of the newly certified BRDs and are identical to the 
specifications previously implemented by NMFS via interim rule that 
recently expired. For these reasons, under 5 U.S.C. 553(d)(3), the 
Assistant Administrator for Fisheries, NOAA, for good cause, finds that 
it would be unnecessary and contrary to the public interest to delay 
for 30 days the effective date of this rule.
    Immediate implementation of these testing and certification 
procedures also allows for immediate certification of the Jones Davis 
and Gulf fisheye BRDs that NMFS has determined are in compliance with 
the procedures based on prior testing. Because these certifications 
relieve a restriction on the affected public, under 5 U.S.C. 553(d)(1), 
they are not subject to a 30-day delay in effective date.
    As noted above, the collection-of-information components of this 
rule will not take effect until approval by OMB and publication of a 
separate notice in the Federal Register making these components 
effective.

List of Subjects in 50 CFR Part 622

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

    Dated: July 1, 1999.
Andrew A. Rosenberg,
Deputy Asst. Administrator for Fisheries, National Marine Fisheries 
Service.

    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.

    2. In Sec. 622.7, paragraph (bb) is reserved and paragraph (aa) is 
added to read as follows:


Sec. 622.7  Prohibitions.

* * * * *
    (aa) Falsify information submitted regarding an application for 
testing a BRD, testing of a BRD, or the results of such testing, as 
specified in Sec. 622.41(h)(3).
    (bb) [Reserved]
    3. In Sec. 622.41, the first sentence of paragraph (h)(1)(i) and 
paragraph (h)(2) are revised and paragraph (h)(3) is added to read as 
follows:


Sec. 622.41  Species specific limitations.

* * * * *
    (h) * * *
    (1) * * *

[[Page 37694]]

    (i) Except as exempted in paragraphs (h)(1)(ii) through (iv) and 
paragraph (h)(3)(iii) of this section, on a shrimp trawler in the Gulf 
EEZ shoreward of the 100-fathom (183-m) depth contour west of 
85 deg.30' W. long., each net that is rigged for fishing must have a 
certified BRD installed. * * *
* * * * *
    (2) Certified BRDs. The following BRDs are certified for use by 
shrimp trawlers in the Gulf EEZ. Specifications of these certified BRDs 
are contained in Appendix D to this part.
    (i) Fisheye.
    (ii) Gulf fisheye.
    (iii) Jones-Davis.
    (3) Procedures for certification of additional BRDs. The process 
for the certification of additional BRDs consists of two phases--an 
optional pre-certification phase and a required certification phase.
    (i) Pre-certification. The pre-certification phase allows a person 
to test and evaluate a new BRD design for up to 60 days without being 
subject to the observer requirements and rigorous testing requirements 
specified for certification testing in the Gulf Of Mexico Bycatch 
Reduction Device Testing Protocol Manual.
    (A) A person who wants to conduct pre-certification phase testing 
must submit an application, as specified in the Gulf Of Mexico Bycatch 
Reduction Device Testing Protocol Manual, to the RD. The Gulf Of Mexico 
Bycatch Reduction Device Testing Protocol Manual, which is available 
from the RD, upon request, contains the application forms.
    (B) After reviewing the application, the RA will determine whether 
to issue a letter of authorization (LOA) to conduct pre-certification 
trials upon the vessel specified in the application. The RA will issue 
a pre-certification phase LOA if the BRD design is substantially unlike 
any BRD design previously determined not to meet the BRD certification 
criterion or, if the design is substantially similar to a BRD design 
previously determined not to meet the BRD certification criteria, and 
the application demonstrates that the design could meet the 
certification criterion through design revision or upon retesting 
(e.g., the application shows that statistical results could be improved 
upon retesting by such things as using a larger sample size than that 
previously used). If the RD authorizes pre-certification, the RD's 
letter of authorization must be on board the vessel during any trip 
involving the BRD testing.
    (ii) Certification. A person who proposes a BRD for certification 
for use in the Gulf EEZ must submit an application to test such BRD, 
conduct the testing, and submit the results of the test in accordance 
with the Gulf Of Mexico Bycatch Reduction Device Testing Protocol 
Manual. The RA will issue a LOA to conduct certification trials upon 
the vessel specified in the application if the RA finds that: The test 
plan meets the requirements of the protocol; the observer identified in 
the application is qualified and has no current or prior financial 
relationship with the entity seeking BRD certification; the application 
presents a BRD candidate substantially unlike BRDs previously 
determined not to meet the current bycatch reduction criterion, or the 
applicant has shown good cause for reconsideration (such as the 
likelihood of improved statistical results yielded from a larger sample 
size than that previously used); and for BRDs not previously tested for 
certification, the results of any pre-certification trials conducted 
have been reviewed and deemed to indicate a reasonable scientific basis 
for conducting certification testing. If authorization to conduct 
certification trials is denied, the RA will provide a letter of 
explanation to the applicant, together with relevant recommendations to 
address the deficiencies resulting in the denial. If a BRD meets the 
certification criterion, as determined under the testing protocol, NMFS 
will publish a notice in the Federal Register adding the BRD to the 
list of certified BRDs in paragraph (h)(2) of this section providing 
the specifications for the newly certified BRD, including any special 
conditions deemed appropriate based on the certification testing 
results.
    (iii) A shrimp trawler that is authorized to participate in the 
pre-certification phase or to test a BRD in the EEZ for possible 
certification has such written authorization on board and is conducting 
such test in accordance with the Gulf Of Mexico Bycatch Reduction 
Device Testing Protocol Manual is granted a limited exemption from the 
BRD requirement specified in paragraph (h)(1) of this section. The 
exemption from the BRD requirement is limited to those trawls that are 
being used in the certification trials. All other trawls rigged for 
fishing must be equipped with certified BRDs.
    4. In Appendix D to part 622, paragraph C.2. is revised and 
paragraphs D and E are added to read as follows:
    Appendix D to Part 622--Specifications for Certified BRDs
* * * * *
    C. * * *
    2. Minimum Construction and Installation Requirements. The fisheye 
has a minimum opening dimension of 5 inches (12.7 cm) and a minimum 
total opening area of 36 square inches (91.4 square cm). The fisheye 
must be installed at the top center of the codend of the trawl to 
create an opening in the trawl facing in the direction of the mouth of 
the trawl no further forward than 11 ft (3.4 m) from the codend 
drawstring (tie-off rings) or 70 percent of the distance between the 
codend drawstring and the forward edge of the codend, excluding any 
extension, whichever is the shorter distance. In the Gulf EEZ only, 
when the fisheye BRD is installed in this position, 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 codend) may overlap 
the fisheye escape opening when the fisheye is installed aft of the 
attachment point of the codend retrieval system.
    D. Gulf fisheye.
    1. Description. The Gulf fisheye BRD is a cone-shaped rigid frame 
constructed from aluminum or steel that is inserted into the top center 
of the codend, or is offset not more than 15 meshes perpendicular to 
the top center of the codend, to form an escape opening.
    2. Minimum Construction and Installation Requirements. The Gulf 
fisheye is a cone-shaped rigid frame constructed of aluminum or steel 
rods. The rods must be at least \1/4\-inch (6.35-mm) diameter. Any 
dimension of the escape opening must be at least 5.0 inches (12.7 cm), 
and the total escape opening area must be at least 36.0 in2 
(232.3 cm2). The Gulf fisheye must be installed in the 
codend of the trawl to create an escape opening in the trawl, facing in 
the direction of the mouth of the trawl, no further forward than 12.5 
ft (3.81 m) and no less than 8.5 ft (2.59 m) from the codend tie-off 
rings. When installed in this position, 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 codend) may overlap the 
fisheye escape opening when the fisheye is installed aft of the 
attachment point of the codend retrieval system. The Gulf fisheye may 
not be offset more than 15 meshes perpendicular to the top center of 
the codend.
    E. Jones-Davis.
    1. Description. The Jones-Davis BRD is similar to the expanded mesh 
and the extended funnel BRDs except that the fish escape openings are 
windows cut around the funnel rather than large-mesh sections. In 
addition, a webbing cone fish deflector is installed behind the funnel.
    2. Minimum Construction and Installation Requirements. The Jones-

[[Page 37695]]

Davis BRD must contain all of the following.
    (a) Webbing extension. The webbing extension must be constructed 
from a single piece of 1\5/8\-inch (3.5-cm) stretch mesh number 30 
nylon 42 meshes by 120 meshes. A tube is formed from the extension 
webbing by sewing the 42-mesh side together.
    (b) 28-inch (71.1-cm) cable hoop. A single hoop must be constructed 
of \1/2\-inch (1.3-cm) steel cable 88 inches (223.5 cm) in length. The 
cable must be joined at its ends by a 3-inch (7.6-cm) piece of \1/2\-
inch (1.3-cm) aluminum pipe and pressed with a \3/8\-inch (0.95-cm) die 
to form a hoop. The inside diameter of this hoop must be between 27 and 
29 inches (68.6 and 73.7 cm). The hoop must be attached to the 
extension webbing 17\1/2\ meshes behind the leading edge. The extension 
webbing must be quartered and attached in four places around the hoop, 
and every other mesh must be attached all the way around the hoop using 
number 24 twine or larger. The hoop must be laced with \3/8\-inch 
(0.95-cm) polypropylene or polyethylene rope for chaffing.
    (c) 24-inch (61.0-cm) hoop. A single hoop must be constructed of 
either number 60 twine 80 inches (203.2 cm) in length or \3/8\-inch 
(0.95-cm) steel cable 75\1/2\ inches (191.8 cm) in length. If twine is 
used, the twine must be laced in and out of the extension webbing 39 
meshes behind the leading edge, and the ends must be tied together. If 
cable is used, the cable must be joined at its ends by a 3-inch (7.6-
cm) piece of \3/8\-inch (0.95-cm) aluminum pipe and pressed together 
with a \1/4\-inch (0.64-cm) die to form a hoop. The inside diameter of 
this hoop must be between 23 and 25 inches (58.4 and 63.4 cm). The hoop 
must be attached to the extension webbing 39 meshes behind the leading 
edge. The extension webbing must be quartered and attached in four 
places around the hoop, and every other mesh must be attached all the 
way around the hoop using number 24 twine or larger. The hoop must be 
laced with \3/8\-inch (0.95-cm) polypropylene or polyethylene rope for 
chaffing.
    (d) Funnel. The funnel must be constructed from four sections of 
1\1/2\-inch (3.8-cm) heat-set and depth-stretched polypropylene or 
polyethylene webbing. The two side sections must be rectangular in 
shape, 29\1/2\ meshes on the leading edge by 23 meshes deep. The top 
and bottom sections are 29\1/2\ meshes on the leading edge by 23 meshes 
deep and tapered 1 point 2 bars on both sides down to 8 meshes across 
the back. The four sections must be sewn together down the 23-mesh edge 
to form the funnel.
    (e) Attachment of the funnel in the webbing extension. The funnel 
must be installed two meshes behind the leading edge of the extension 
starting at the center seam of the extension and the center mesh of the 
funnel's top section leading edge. On the same row of meshes, the 
funnel must be sewn evenly all the way around the inside of the 
extension. The funnel's top and bottom back edges must be attached one 
mesh behind the 28-inch (71.1-cm) cable hoop (front hoop). Starting at 
the top center seam, the back edge of the top funnel section must be 
attached four meshes each side of the center. Counting around 60 meshes 
from the top center, the back edge of the bottom section must be 
attached 4 meshes on each side of the bottom center. Clearance between 
the side of the funnel and the 28-inch (71.1-cm) cable hoop (front 
hoop) must be at least 6 inches (15.2 cm) when measured in the hanging 
position.
    (f) Cutting the escape openings. The leading edge of the escape 
opening must be located within 18 inches (45.7 cm) of the posterior 
edge of the turtle excluder device (TED) grid. The area of the escape 
opening must total at least 864 in2 (5,574.2 
cm2). Two escape openings 10 meshes wide by 13 meshes deep 
must be cut 6 meshes apart in the extension webbing, starting at the 
top center extension seam, 3 meshes back from the leading edge and 16 
meshes to the left and to the right (total of four openings). The four 
escape openings must be double selvaged for strength.
    (g) Alternative Method for Constructing the Funnel and Escape 
Openings. The following method for constructing the funnel and escape 
openings may be used instead of the method described in paragraphs 
F.2.d., F.2.e., and F.2.f. of this section. With this alternative 
method, the funnel and escape openings are formed by cutting a flap in 
each side of the extension webbing; pushing the flaps inward; and 
attaching the top and bottom edges along the bars of the extension 
webbing to form the v-shape of the funnel. Minimum requirements 
applicable to this method include: (1) The funnel's top and bottom back 
edges must be attached one mesh behind the 28-inch (71.1-cm) cable hoop 
(front hoop); (2) clearance between the side of the funnel and the 28-
inch (71.1-cm) cable hoop (front hoop) must be at least 6 inches (15.2 
cm) when measured in the hanging position; (3) the leading edge of the 
escape opening must be located within 18 inches (45.7 cm) of the 
posterior edge of the turtle excluder device (TED) grid; and, (4) the 
area of the escape opening must total at least 864 in2 
(5,574.2 cm2). To construct the funnel and escape openings 
using this method, begin 3\1/2\ meshes from the leading edge of the 
extension, at the top center seam, count over 18 meshes on each side, 
and cut 13 meshes toward the back of the extension. Turn parallel to 
the leading edge, and cut 26 meshes toward the bottom center of the 
extension. Next, turn parallel to the top center seam, and cut 13 
meshes forward toward the leading edge, creating a flap of webbing 13 
meshes by 26 meshes by 13 meshes. Lengthen the flap to 18 meshes by 
adding a 4\1/2\-mesh by 26-mesh rectangular section of webbing to the 
26-mesh edge. Attach the 18-mesh edges to the top and bottom of the 
extension by sewing 2 bars of the extension to 1 mesh on the flap in 
toward the top center and bottom center of the extension, forming the 
exit opening and the funnel. Connect the two flaps together in the 
center with a 7-inch piece of number 42 twine to allow adequate 
clearance for fish escapement between the flaps and the side openings. 
On each side, sew a 6-mesh by 10\1/2\-mesh section of webbing to 6 
meshes of the center of the 26-mesh cut on the extension and 6 meshes 
centered between the 13-mesh cuts 3\1/2\ meshes from the leading edge. 
This forms two 10-mesh by 13-mesh openings on each side.
    (h) Cone fish deflector. The cone fish deflector is constructed of 
2 pieces of 1\5/8\-inch (4.13-cm) polypropylene or polyethylene 
webbing, 40 meshes wide by 20 meshes in length and cut on the bar on 
each side forming a triangle. Starting at the apex of the two 
triangles, the two pieces must be sewn together to form a cone of 
webbing. The apex of the cone fish deflector must be positioned within 
10-14 inches (25.4-35.6 cm) of the posterior edge of the funnel.
    (i) 11-inch (27.9-cm) cable hoop for cone deflector. A single hoop 
must be constructed of \5/16\-inch (0.79-cm) or \3/8\-inch (0.95-cm) 
cable 34\1/2\ inches (87.6 cm) in length. The ends must be joined by a 
3-inch (7.6-cm) piece of \3/8\-inch (0.95-cm) aluminum pipe pressed 
together with a \1/4\-inch (0.64-cm) die. The hoop must be inserted in 
the webbing cone, attached 10 meshes from the apex and laced all the 
way around with heavy twine.
    (j) Installation of the cone in the extension. The cone must be 
installed in the extension 12 inches (30.5 cm) behind the back edge of 
the funnel and attached in four places. The midpoint of a piece of 
number 60 twine 4 ft (1.22 m) in length must be attached to the apex of 
the cone. This piece of twine must be attached to the 28-inch (71.1-cm) 
cable

[[Page 37696]]

hoop at the center of each of its sides; the points of attachment for 
the two pieces of twine must be measured 20 inches (50.8 cm) from the 
midpoint attachment. Two 8-inch (20.3-cm) pieces of number 60 twine 
must be attached to the top and bottom of the 11-inch (27.9-cm) cone 
hoop. The opposite ends of these two pieces of twine must be attached 
to the top and bottom center of the 24-inch (61-cm) cable hoop; the 
points of attachment for the two pieces of twine must be measured 4 
inches (10.2 cm) from the points where they are tied to the 11-inch 
(27.9-cm) cone hoop.

    Note: The Gulf Of Mexico Bycatch Reduction Device Testing 
Protocol Manual and appendices H and I to the Manual are published 
as appendices to this document. These appendices will not appear in 
the Code of Federal Regulations.

Appendix--Gulf Of Mexico Bycatch Reduction Device Testing Protocol 
Manual

Definitions

    Bycatch reduction criterion is that the BRD reduces the 
mortality of juvenile (age 0 and age 1) red snapper by a minimum of 
44 percent from the average level of bycatch mortality (F=2.06) on 
these age classes during the years 1984-1989.
    Bycatch reduction device (BRD) is any gear or trawl modification 
designed to allow finfish to escape from a shrimp trawl.
    BRD candidate is a bycatch reduction device to be tested for 
certification for use in the commercial shrimp fishery of the Gulf 
of Mexico.
    Catch per unit of effort (CPUE) means the number or pounds of 
fish (e.g., red snapper) or shrimp taken during a pre-defined 
measure of fishing activity (e.g., per hour).
    Certification phase is a required testing phase whereby an 
individual so authorized by the RA may conduct a discrete testing 
program, with a sample size adequate for statistical analysis (no 
less than 30 tows), to determine whether a BRD candidate meets the 
bycatch reduction criterion.
    Certified BRD is a BRD that has been tested according to this 
protocol and has been determined by the RA as having met the bycatch 
reduction criterion.
    Control trawl means a trawl used during the certification 
testing that is not equipped with a BRD. The catch of this trawl is 
compared to the catch of the experimental trawl.
    Experimental trawl means the trawl used during the certification 
tests that is equipped with the BRD candidate.
    Evaluation and oversight personnel includes scientists, 
observers, and other technical personnel who, by reason of their 
occupational or other experience, scientific expertise or training, 
are approved by the RA as qualified to evaluate and oversee the 
application and testing process. Scientists and other technical 
personnel will (1) review a BRD certification test application for 
its merit, and (2) critically review the scientific validity of the 
certification test results.
    Observer means a person on the list maintained by the RA of 
individuals qualified to supervise and monitor a BRD certification 
test. Applicants may obtain the list of individuals qualified to be 
an observer from the RA. The observer chosen by the applicant may 
not have any current or prior financial relationship with the entity 
seeking BRD certification. For information on observer qualification 
criteria and the observer application process, see Appendix I.
    Pre-certification phase is an optional testing phase whereby an 
individual, so authorized by the RA, can experiment with the design, 
construction, and configuration of a BRD and gather data.
    Regional Administrator (RA) means the Southeast Regional 
Administrator, National Marine Fisheries Service, 9721 Executive 
Center Drive North, St. Petersburg, Florida 33702, phone 727-570-
5301.
    Required measurements refers to the quantification of the 
dimensions and configuration of the trawl, the BRD candidate, the 
doors, the location of the BRD in relation to other parts of the 
trawl gear, and other quantifiable criteria used to assess the 
performance of the BRD candidate.
    Sample size means the number of successful tows (a minimum of 30 
tows per test are required).
    Shrimp loss means the percent difference in average CPUE (e.g. 
kg/hr) between the amount of shrimp caught in the control trawl and 
the amount of shrimp caught in the experimental trawl.
    Successful tow means that the control and experimental trawl 
were fished in accordance with the requirements set forth in the 
protocol and the terms and conditions of the letter of 
authorization, that the control or experimental net caught at least 
five red snapper during the tow, and that no indication exists that 
problematic events, such as those listed in Appendix D-5, occurred 
during the tow which would impact or influence the fishing 
efficiency (catch) of one or both nets.
    Tow time means the total time (hours and minutes) an individual 
trawl was fished while being towed (i.e., the time between ``dog-
off'' and start of haul back).
    Trawl means a net and associated gear and rigging, as 
illustrated in Appendix B-5 of this manual, used to catch shrimp. 
The terms trawl and net are used interchangeably throughout the 
manual.
    Tuning a net means adjusting the trawl and its components to 
minimize the differences in shrimp catch between the two nets that 
will be used as the control and experimental trawls during the 
certification tests.

I. Introduction

Purpose of the Protocol

    This protocol sets forth a standardized scientific procedure for 
the testing of a BRD candidate and for the evaluation of its ability 
to meet the bycatch reduction criterion. For a BRD candidate to be 
certified by the RA, the BRD candidate must meet the bycatch 
reduction criterion.
    There are two phases to this procedure: An optional, but 
recommended, pre-certification phase and a required certification 
phase. An applicant is encouraged to take advantage of the pre-
certification phase which allows experimentation with different BRD 
designs and configurations prior to certification phase testing (see 
below for details). The certification phase requires the applicant 
to conduct a discrete testing program, with a sample size of no less 
than 30 tows to determine whether the BRD candidate meets the 
bycatch reduction criterion. There is no cost to the applicant for 
the RA's administrative expenses such as preparing applications, 
issuing letters of authorization (LOAs), or evaluating test results 
or certifying BRDs. However, all other costs associated with either 
phase (e.g., field testing) are at the applicant's expense.

II. Pre-Certification Phase (Optional)

    The pre-certification phase provides a mechanism whereby an 
individual can experiment with the design, construction, and 
configuration of a prototype BRD for up to 60 days to improve the 
design's effectiveness at reducing the bycatch of red snapper and to 
determine whether it is likely to meet the bycatch reduction 
criterion. To conduct pre-certification phase evaluations of a 
prototype BRD, the applicant must apply for, receive, and have on 
board the vessel during testing, an LOA from the RA.

A. Application

    In order to obtain an LOA to conduct pre-certification phase 
evaluations of a prototype BRD, an individual must submit a complete 
application to the RA. A complete application consists of a 
completed application form, Application to Test A Bycatch Reduction 
Device in the Exclusive Economic Zone (the form is appended as 
Appendix J-1), and the following: (1) a brief statement of the 
purpose and goal of the activity for which the LOA is requested; (2) 
a statement of the scope, duration, dates, and location of the 
testing; (3) an 8.5-inch x 11-inch (21.6-cm x 27.9-cm) diagram drawn 
to scale of the BRD design; (4) an 8.5-inch x 11-inch (21.6-cm x 
27.9-cm) diagram drawn to scale of the BRD and approved TED in the 
shrimp trawl; (5) a description of how the BRD is supposed to work; 
and (6) a copy of the testing vessel's documentation or its state 
registration.
    An applicant requesting a pre-certification LOA of an unapproved 
hard or soft TED as a BRD must first apply for and obtain from the 
RA an experimental TED authorization pursuant to 50 CFR 
227.72(e)(5)(ii). The pre-certification phase LOA application must 
also append a copy of that authorization.

B. Issuance

    The RA will review the application for completeness. If the 
application is incomplete, the RA will inform the applicant of the 
incompleteness and give the applicant an opportunity to cure. If 
incompleteness is not cured within 30 days, the application will be 
returned to the applicant. Upon receipt of a complete application, 
the RA will issue a LOA to conduct pre-certification phase testing 
upon the vessel specified in the application if the BRD design is 
substantially unlike BRD designs previously determined not to meet 
the current performance criterion, or if the design is substantially 
similar to BRD designs previously determined not to meet the current 
performance criteria and the application

[[Page 37697]]

demonstrates that the design could meet the bycatch reduction 
criterion through design revision or upon retesting (e.g., the 
application shows that statistical results could be improved upon 
retesting by such things as a larger sample size than that 
previously used). If a pre-certification phase LOA is denied, the RA 
will return the application to the applicant along with a letter of 
explanation including relevant recommendations as to curing the 
deficiencies which caused the denial. In arriving at a decision, the 
RA may consult with evaluation and oversight personnel. Issuance of 
a LOA allows the applicant to remove or disable the existing BRD in 
one net (to create a control net), and to place the prototype BRD in 
another net in lieu of a certified BRD (to create an experimental 
net). All other trawls under tow during the test must be equipped 
with a certified BRD. All trawls under tow during the pre-
certification phase tests must be equipped with an approved TED 
unless operating under an authorization issued pursuant to 50 CFR 
227.72(e)(5)(ii). The LOA, and experimental TED authorization if 
applicable, must be on board the vessel while the pre-certification 
phase tests are being conducted. The term of the LOA will be 60 
days.

C. Applicability

    The pre-certification phase allows an individual to compare the 
catches of a control net to the catches of the experimental net (net 
equipped with the prototype BRD) to estimate the potential 
efficiency of the prototype BRD. If that individual subsequently 
applies for a certification phase LOA to test this design he/she 
must include the results of the pre-certification phase evaluation 
with the certification application. The RA will use this information 
to determine if there is a reasonable scientific basis to conduct 
certification phase testing. Therefore, for each paired tow, the 
applicant should keep a written record of the weight of the shrimp 
catch, the weight of the finfish catch, and the total catch (in 
numbers) of red snapper of each net. The form contained in Appendix 
D should be used to record this information.

III. Certification Phase (Required)

    In order to have a BRD certified, it must, under certification 
phase testing, be consistent with the requirements of the testing 
protocol and LOA and be determined by the RA to meet the bycatch 
reduction criterion.

A. Application

    To conduct certification phase testing, an individual must 
obtain a certification phase LOA. To obtain a certification phase 
LOA, an individual must submit a complete application to the RA. The 
complete test application consists of an Application to Test A 
Bycatch Reduction Device in the Exclusive Economic Zone (Appendix J-
1), a copy of the vessel's current Coast Guard certificate of 
documentation or, if not documented, its state registration 
certificate; the name of a qualified observer who will be on board 
the vessel during all certification test operations (see Appendix 
I); and a test plan showing: (1) an 8.5-inch  x  11-inch (21.6-cm 
x  27.9-cm) diagram drawn to scale of the BRD candidate; (2) an 8.5-
inch  x  11-inch (21.6-cm  x  27.9-cm) diagram drawn to scale of the 
BRD candidate and approved TED in the shrimp trawl; (3) a 
description of how the BRD candidate is supposed to work; (4) the 
results of previous pre-certification phase tests; (5) the location, 
time, and area where the certification phase tests would take place; 
and (6) the identity of the observer from the list of qualified 
individuals maintained by the RA and certification that the observer 
has no current or prior financial relationship with the applicant or 
entity seeking BRD certification.
    An applicant requesting a certification phase LOA to test an 
unapproved hard or soft TED as a BRD must first apply for and obtain 
from the RA an experimental TED authorization pursuant to 
requirements of 50 CFR part 227.72(e)(5)(ii). The application for 
the certification phase LOA also must append a copy of that 
authorization.

A.1  Special Circumstances Not Covered By Protocol

    Because actual testing conditions may vary, it may be necessary 
to deviate from the prescribed protocol to determine if a BRD 
candidate meets the bycatch reduction criterion. Any foreseeable 
deviations from the protocol must be described and justified in the 
application, and if scientifically acceptable will be approved by 
the RA in the LOA. The RA may consult with evaluation personnel to 
determine whether the deviations are scientifically acceptable. 
Without the RA's approval in the LOA, results from any tests 
deviating from the protocol may be rejected as scientifically 
unacceptable, and could result in a denial of certification.

B. Observer Requirement

    A qualified observer must be on board the vessel during all 
certification testing operations (See Appendix I). A list of 
qualified observers is available from the RA. Observers may include 
employees or individuals acting on behalf of NMFS, state fishery 
management agencies, universities, or private industry who meet the 
minimum requirements outlined in Appendix I, but the individual 
chosen may not have a current or prior financial relationship with 
the entity seeking BRD certification. It is the responsibility of 
the applicant to ensure that a qualified observer is on board the 
vessel during the certification tests. Compensation to the observer, 
if necessary, must be paid by the applicant. Any change in 
information or testing circumstances, such as replacement of the 
observer, must be reported to the R.A. within 30 days. Under 50 CFR 
600.746, the owner and operator of any fishing vessel required to 
carry an observer as part of a mandatory observer program under the 
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 
1801, et seq.) is required to comply with guidelines, regulations, 
and conditions to ensure their vessel is adequate and safe to carry 
an observer, and to allow normal observer functions to collect 
scientific information as described in this protocol. A vessel owner 
is deemed to meet this requirement if the vessel displays one of the 
following: (i) A current Commercial Fishing Vessel Safety 
Examination decal, issued within the last 2 years, that certifies 
compliance with regulations found in 33 CFR, chapter I, and 46 CFR, 
chapter I; (ii) a certificate of compliance issued pursuant to 46 
CFR 28.710; or (iii) a valid certificate of inspection pursuant to 
46 U.S.C. 3311.

C. Issuance

    The RA will review the application for completeness. If the 
application is not complete, the RA will notify the applicant of the 
incompleteness and give the applicant an opportunity to cure. If the 
incompleteness is not cured within 30 days, the RA will return the 
application to the applicant. Upon receipt of a complete 
application, the RA will issue a LOA to conduct certification phase 
testing of the BRD candidate specified in the application if: (1) 
the test plan meets the requirements of the protocol; (2) the 
qualified observer named in the application has no current or prior 
financial relationship with the entity seeking BRD certification; 
(3) the BRD candidate design is substantially unlike BRD designs 
previously determined not to meet the current bycatch reduction 
criterion, or if the BRD candidate design is substantially similar 
to a BRD design previously determined not to meet the current 
bycatch reduction criterion, the application demonstrates that the 
design could meet the bycatch reduction criterion upon retesting 
(e.g., the application shows that statistical results could be 
improved upon retesting by such things as a larger sample size than 
that previously used); and (4) the results of any pre-certification 
phase testing conducted indicate a reasonable scientific basis for 
further testing. The submission of pre-certification phase data to 
provide a scientific basis for the conduct of certification testing 
is not an absolute requirement for the issuance of a certification 
phase LOA. For example, a request to conduct certification phase 
testing of a minor modification of a certified BRD design would not 
need to include pre-certification phase data. Similarly, a request 
for certification phase testing of a previously failed design that 
under a different test plan (e.g., larger sample sizes) could yield 
improved statistical results would likewise not need pre-
certification phase data. However, pre-certification phase data 
would normally be needed to establish a reasonable scientific basis 
for conducting certification phase testing (e.g., that the BRD could 
meet the certification criterion upon certification testing). In 
making these determinations, the RA may consult with evaluation and 
oversight personnel. If a LOA to conduct certification phase testing 
is denied, the RA will provide a letter of explanation to the 
applicant, together with relevant recommendations to address the 
deficiencies resulting in the denial. Issuance of a LOA allows the 
applicant to remove or disable the existing certified BRD in one net 
(to create a control net) and to place the BRD candidate in another 
net in lieu of a certified BRD (to create an experimental net). All 
other trawls under tow during the tests must be equipped with a BRD. 
All trawls under tow during the certification tests must be equipped 
with an approved TED unless operating under an

[[Page 37698]]

authorization issued pursuant to 50 CFR 227.72(e)(5)(ii). The LOA 
will specify the date when the applicant may begin to test the BRD 
candidate, the observer who will conduct the onboard data 
collection, and the vessel to be used during the test. The LOA and 
experimental TED authorization, if applicable, must be onboard the 
vessel while the certification phase tests are being conducted.

D. Testing Protocol

    Certification testing must be conducted in areas and at times 
when commercial quantities of penaeid shrimp and juvenile (age 0 and 
age 1) red snapper are available to the gear. The best time for 
testing a BRD candidate is July and August (July 1--August 31) due 
to the availability of red snapper on the penaeid shrimp commercial 
grounds located shoreward of the 100-fm (183-m) depth contour west 
of 85 deg.30' W. longitude, the approximate longitude of Cape San 
Blas, FL. Data should be recorded on the forms found in Appendices B 
through G, using the instructions provided for each form.

D.1. Tuning the Control and Experimental Trawls Prior to BRD 
Certification Trials

    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 that of the control net. 
Therefore, it is imperative that the fishing efficiency of the two 
nets be as similar as possible prior to starting the certification 
tests. Catch data from no more than 20 tuning tows should be 
collected on nets that will be used as control and experimental 
trawls to determine if there is a between-net or between-side (port 
vs. starboard) difference in fishing efficiency (bias). Any net/side 
bias will be reflected as differing catch rates of shrimp and red 
snapper between two nets that were towed simultaneously. During the 
tuning tows, these nets should be equipped with identical approved 
hard TEDs, without the BRD candidate being installed. Using this 
information, the applicant should identify and minimize the causes 
for any net/side bias, to the extent practicable, by making 
appropriate trawl gear adjustments. Form D-1 from Appendix D should 
be used to record the net/side bias data collected from these tows. 
These data will enable the RA to determine if any net/side bias 
existed in either trawl in assessing the BRD candidate's 
performance.
    If the applicant is testing a soft TED as a BRD, it will be 
imperative that little or no position or side bias with the trawl 
nets be demonstrated before the certification trials are initiated. 
Once any net/side bias is corrected using identical approved hard 
TEDs in both nets, any alterations in catch rate following the 
substitution of the soft TED into the experimental net can then be 
attributed to that TED's influence.

D.2. Retention of Data Collected During Tuning Trials

    All data collected during tuning trials and used for minimizing 
the net/side bias must be documented and submitted to the RA along 
with the testing data for evaluation. Additional information on 
tuning shrimp trawls is available from the Harvesting Technology 
Branch, Mississippi Laboratories, Pascagoula Facility, 3209 Frederic 
Street, Pascagoula, Mississippi 39568-1207; phone (601) 762-4591.

D.3. Certification Tests

    The certification tests must follow the testing protocol where 
paired identical trawls are towed by a trawler in areas west of Cape 
San Blas, Florida, where shrimp and juvenile red snapper occur. For 
tests of BRD candidates that do not encompass testing a hard or soft 
TED as the BRD candidate, identical approved hard TEDs are required 
in each trawl and one of the trawls must be equipped with a 
functioning BRD candidate. To test a hard or soft TED as a BRD 
candidate, the control net must be equipped with an approved hard 
TED, and the experimental net must be equipped with the TED that is 
acting as the BRD candidate.
    A minimum sample size of 30 successful tows per test is 
required. Additional tows may be necessary for sufficient 
statistical evidence, especially if red snapper catch is highly 
variable. A gear change (i.e., changing nets, doors, or rigging) 
during a test constitutes the beginning of a new test. All 
certification tows must be no less than 2 hours and no more than 8 
hours in duration. The applicant may select any tow time within this 
range. Once a tow time is selected, no tow time during a series of 
tests may vary by more than 10 percent.
    To avoid potential biases associated with trynet catches, the 
outside trawls on quad-rigged vessels must be used as the control 
and experimental trawls, and for double-rigged vessels, the use of a 
trynet is prohibited.
    The functioning BRD candidate must be switched every 4-6 tows 
(approximately every 2 days) between the two trawl nets. This 
process must be repeated, ensuring that an equal number of 
successful tows are made with the BRD candidate employed in both the 
port and starboard nets, until a minimum of 30 successful tows have 
been completed. For BRDs incorporated in the codend of the net, this 
process can be facilitated by the use of zippers, or other quick-
connection devices, to more easily move the codends between nets; 
however, simply switching the entire net will not satisfy this 
requirement because doing so would not resolve net bias. Such quick-
connection devices must be attached behind the TED. The TED must not 
be moved unless the BRD is actually incorporated into the TED 
portion of the net. Where a hard TED is being tested as a BRD 
candidate, that portion of the net including the TEDs must be moved, 
and again, quick-connection devices located in front of the TEDs may 
be used.
    A different procedure must be followed to conduct tests of an 
approved or experimental soft TED as a BRD candidate. To conduct 
these tests, the applicant must first demonstrate that little or no 
side/net bias exists between the two nets to be used in the test 
(see D.1.). Removing the soft TED from one trawl net and installing 
it in the other net is not required. For these tests, the control 
(with a hard TED) and experimental (with the soft TED) nets must be 
disconnected from the doors and their positions switched from one 
side of the vessel to the other. The first switch must be made after 
successfully completing approximately 25 percent of the total number 
of intended tows. This process must be repeated, at 25 percent 
intervals, until at least 30 successful tows are completed (i.e., 
every 7-8 successful tows).
    Following each paired tow, the catches from the control and 
experimental nets must be examined separately. This requires that 
the catch from each net be kept separate from each other, as well as 
from the catch taken in other nets fished during that tow. First, 
the observer must weigh the total catch of each test net (control 
and experimental nets). If the catch in a net does not fill one 
standard 1-bushel [ca. 10 gallon] (30 liters) polyethylene shrimp 
basket (ca. 70 pounds) (31.8 kg), but the tow is otherwise 
considered successful, data must be collected on the entire catch of 
that net, and recorded as a ``select'' sample (see Appendix E). If 
the catch in a net exceeds 70 pounds (31.8 kg), a well-mixed sample 
consisting of one standard 1-bushel [ca. 10 gallon] (30 liters) 
polyethylene shrimp basket must be taken from the total catch of 
that net.
    Data must be collected on Form E-1 for the following species or 
general groups found in each of the samples: (1) penaeid shrimp--
brown, white and pink shrimp from each sample must be separated by 
species, counted and weighed; in addition, the weight for those 
penaeid shrimp species caught in each test net, but that were not 
included in the sample, must be recorded so that a total shrimp 
catch for each net (by weight) is documented; (2) crustacea--mantis 
shrimp, sugar shrimp, seabobs, crabs, lobsters and other similar 
species--must be weighed as an aggregate; (3) other invertebrates--
squid, jellyfish, starfish, sea pansies, shells, and other similar 
species--must be weighed as an aggregate; (4) each finfish species 
or species group listed in Appendix E must be weighed and counted; 
(5) other finfish--including all other fish not listed on the above-
referenced form must be weighed as an aggregate; and (6) debris 
(mud, rocks, and related matter) must be weighed as an aggregate.
    ``Select'' finfish species (page E-3) (i.e., particular species 
to be quantified from the total catch and not just the sample) are 
red snapper, Spanish mackerel, and king mackerel. All individuals of 
the ``Select'' species from each test net (control and experimental 
net) must be collected, counted, weighed, and recorded. Lengths for 
as many as 30 individuals of each select species must be recorded on 
Form F-1. These data are necessary to robustly determine age-class 
composition, and specific mortality reductions attributable to each 
of the age classes.
    Applicants must also collect qualitative information, using Form 
G-1, on the condition (alive or dead) and fate (floated off, swam 
down, eaten) of the discards whenever possible, and note the 
presence of any predator species such as sharks, porpoises, and 
jacks that are observed. The condition and fate of the bycatch is 
important for determining the fishing mortality and waste associated 
with this discard.

[[Page 37699]]

E. Reports

    A report on the BRD candidate test results must be submitted for 
certification. The report must contain a comprehensive description 
of the tests, copies of all completed data forms used during the 
certification trials, and photographs, drawings, and similar 
material describing the BRD. The captain or owner must sign and 
submit the cover form (Appendix A). The report must include a 
description and explanation of any unforeseen deviations from the 
protocol which occurred during the test. Applicants must provide 
information on the cost of materials, labor, and installation of the 
BRD candidate. In addition, any unique or special circumstances of 
the tests, including special operational characteristics or fishing 
techniques which enhance the BRD's performance, should be described 
and documented as appropriate.

F. Certification

    The RA will determine whether the required reports and 
supporting materials are sufficient to evaluate the BRD candidate's 
efficiency. The RA also will determine whether the applicant adhered 
to the prescribed testing protocol, and whether the BRD candidate 
meets the bycatch reduction criterion for juvenile red snapper. In 
making a decision, the RA may consult with evaluation and oversight 
personnel.
    The RA will determine the effectiveness of the BRD candidate. 
The statistical protocol in Appendix H provides the methodology that 
the RA will use to estimate the reduction in bycatch mortality on 
age-1 juvenile red snapper if the test is conducted during the 
primary period (July or August). Tests conducted during other parts 
of the year will, most likely, catch both age 0 and age 1 red 
snapper. To evaluate the overall reduction in mortality rate of 
these juvenile age classes attributable to the BRD candidate will 
require alternative extensive analysis, involving use of the 
Goodyear (1995) stock assessment model to assign mortality 
reductions by specific size classes within the age 0 and age 1 red 
snapper catch.
    Following a favorable determination of these criteria, the RA 
will certify the BRD (with any appropriate conditions as indicated 
by test results) and publish the certification in the Federal 
Register.

IV. BRDs Not Certified and Resubmission Procedures

    The RA will advise the applicant, in writing, if a BRD is not 
certified. This notification will explain why the BRD was not 
certified and what the applicant may do to either modify the BRD or 
the testing procedures to improve the chances of having the BRD 
certified in the future. If certification was denied because of 
insufficient information, the RA will explain what information is 
lacking. The applicant must provide the additional information 
within 60 days from receipt of such notification; thereafter, the 
applicant must re-apply. If the RA subsequently certifies the BRD, 
the RA will announce the certification in the Federal Register.

V. Decertification of BRDs

    The RA will decertify a BRD whenever it is determined that it no 
longer satisfies the bycatch reduction criterion for juvenile red 
snapper. Before determining whether to decertify a BRD, the Council 
and public will be advised and provided an opportunity to comment on 
the advisability of any proposed decertification. The RA will 
consider any comments from the Council and public, and if the RA 
elects to proceed with decertification of the BRD, the RA will 
publish proposed and final rules in the Federal Register with a 
comment period of not less than 15 days on the proposed rule.

VI. Interactions With Sea Turtles

    The following section is provided for informational purposes. 
Sea turtles are listed under the Endangered Species Act as either 
endangered or threatened. The following procedures apply to 
incidental take of sea turtles under 50 CFR 227.72(e)(1):
    ``(i) Any specimen so taken must be handled with due care to 
prevent injury to live specimens, observed for activity, and 
returned to the water according to the following procedures:
    (A) Sea turtles that are dead or actively moving must be 
released over the stern of the boat. In addition, they must be 
released only when trawls are not in use, when the engine gears are 
in neutral position, and in areas where they are unlikely to be 
recaptured or injured by vessels.
    (B) Resuscitation must be attempted on sea turtles that are 
comatose or inactive but not dead by:
    (1) Placing the turtle on its back (carapace) and pumping its 
breastplate (plastron) with hand or foot; or (2) Placing the turtle 
on its breastplate (plastron) and elevating its hindquarter several 
inches for a period from 1 to 24 hours. The amount of the elevation 
depends on the size of the turtle; greater elevations are needed for 
larger turtles. Sea turtles being resuscitated must be shaded and 
kept wet or moist. Those that revive and become active must be 
released over the stern of the boat only when trawls are not in use, 
when the engine gears are in neutral position, and in areas where 
they are unlikely to be recaptured or injured by vessels. Similarly, 
sea turtles that fail to move within several hours (up to 24, if 
possible) must be returned to the water in the same manner.
    (ii) Any specimen so taken must not be consumed, sold, landed, 
off-loaded, transshipped, or kept below deck.''

References

Gulf of Mexico Fishery Management Council, 1997. Amendment 9 to the 
Fishery Amendment 9 to the Fishery Management Plan for the Shrimp 
Fishery of the Gulf of Mexico, Including a Final Supplemental 
Environmental Impact Statement and Regulatory Impact Review and 
Social Impact Assessment. Gulf of Mexico Fishery Management Council, 
3018 U.S. Highway 301 North, Suite 1000, Tampa, FL 33619, 153 p.
Goodyear, C. P.; 1995. Red snappers in U.S. waters of the Gulf of 
Mexico. National Marine Fisheries Service, Southeast Fisheries 
Science Center, Miami Laboratory, Miami, FL. Laboratory Report, 
Contribution  MIA 95/96-05, 171 p.
Hoese, H. Dickson and Richard H. Moore; 1977. Fishes of the Gulf of 
Mexico, Texas, Louisiana, and Adjacent Waters. Texas A&M University 
Press. College Station, TX, 327 p.
SAFMC; 1997. Final Bycatch Reduction Device Testing Protocol Manual. 
South Atlantic Fishery Management Council, 1 Southpark Cir., Ste 
306, Charleston, S.C. 29407, 34 p.
Ward, John M., Teofilo Ozuma and Wade Griffen; 1995 Cost and 
Revenues in the Gulf of Mexico Shrimp Fishery . NOAA Tech. Mem. 
NMFS-SEFSC-371, 76 p.

Appendix H Statistical Procedures for Analyzing BRD Evaluation Data

    NMFS will calculate the reduction in bycatch mortality (F) based 
on data gathered during the testing. Both age 0 and age 1 red 
snapper, ranging in length from 10 mm to 200 mm, occur frequently in 
shrimp trawls. During the July/August (July 1-August 31) period, the 
most recently spawned year class of fish have not fully recruited to 
the shrimp grounds; thus the catch is represented by a relatively 
narrow length range of individuals, all of which are considered to 
be age 1. The numerical reduction in catch-per-unit-effort (CPUE) of 
this specific age class is expected to be a good predictor of 
fishing mortality (F) reduction, although the size composition data 
will be checked for any particular test. The analysis of the data 
collected under this testing protocol will be based on a modified 
paired t-test. Because of the varying age and size composition of 
the red snapper catch taken at other times of the year, more 
detailed analyses through use of a stock assessment model (Goodyear 
1995) incorporating the size-specific reduction performance of the 
device and the seasonal progression of F must be conducted to 
determine if the BRD candidate will meet the bycatch reduction 
criterion. Based on the time of the year that the test is conducted, 
NMFS will utilize the appropriate technique to assess the 
performance of the BRD candidate as a service for the BRD sponsor.
    All experimental tows must be conducted in conformance with the 
requirements of the BRD testing protocol. Data collected from no 
more than 20 tuning tows of the control and experimental trawls 
(without the BRD candidate installed) must be included to determine 
if any net bias exists prior to beginning certification phase 
testing. To further reduce problems caused by no or low catches, a 
tow must contain a minimum catch of 5 red snapper in at least one 
trawl for inclusion in the analysis. Once conducted, the tow and the 
corresponding collected data become the permanent part of the record 
and cannot be discarded. Only the successful tows will count toward 
the minimum required; however, information from other tows, if 
appropriate, will be used in the analysis.

[[Page 37700]]

Statistical Approach for Calculation of Bycatch Mortality (F) Reduction 
for Devices Tested in July/August

    The statistical approach assumes that the BRD to be tested does 
not achieve the minimum required reduction rate, (Ro). 
The hypotheses to be tested are as follows:
Ho: BRD does not achieve the minimum required reduction 
rate,
[GRAPHIC] [TIFF OMITTED] TR13JY99.001

Ha: BRD does achieve the minimum required reduction rate,
[GRAPHIC] [TIFF OMITTED] TR13JY99.002

R denotes the actual reduction rate (unknown), Ro denotes 
the minimum required reduction rate, c denotes 
the actual mean CPUE with the control, and b 
denotes the actual mean CPUE with the BRD.
    With any hypothesis testing, there are two risks involved known 
as type I error (rejection of true Ho) and type II error 
(acceptance of false Ho). The probabilities of committing 
these errors are denoted by alpha and beta, respectively. The 
probabilities are inversely related to each other. As alpha 
increases, beta decreases and vice versa. An alpha of 10 percent 
will be used. The two hypotheses are tested using a 'modified' 
paired t-test.
    The CPUE values for the control and BRD trawls for each 
successful tow is computed first and is used in the following 
computations:
[GRAPHIC] [TIFF OMITTED] TR13JY99.003

Where:

x is the observed mean CPUE for the control,
y is the observed mean CPUE for the BRD,
sd0 is the standard deviation of di = { (1 - 
Ro)Xi - Yi} values,
n is the number of successful tows used in the analysis, and
i = 1,2,...,n.

    The Ho will be rejected if t > talpha, n-1 
where talpha, n-1 denotes the (1 - alpha)100th percentile 
score in the t distribution with (n-1) degrees of freedom.
    A (1-alpha)100% two-sided confidence interval on R consists of all 
values of Ro for which Ho: R = Ro 
(versus Ha R % Ro) cannot be rejected 
at the level of significance of alpha. One-sided confidence intervals 
on R could also be computed appropriately.

Appendix I Qualifications of Observer

    An observer:
    1. Must have a Bachelor's degree in fisheries biology or closely 
related field from an accredited college, have at least 6 months 
experience working with a university, college, state fisheries 
agency, NMFS, or private research organization such as the Gulf and 
South Atlantic Fisheries Development Foundation as an observer on a 
trawler (including research trawlers) in the southeast region, or 
have successfully completed a training course conducted or approved 
by the Director of the NMFS Southeast Fisheries Science Center.
    2. Must not have a current or prior financial relationship with 
the entity seeking BRD certification.
    In addition, any individual:
    1. Applying to serve as an observer must provide the names, 
addresses, and telephone numbers of at least three references who 
can attest to the applicant's background, experiences, and 
professional ability. These references will be contacted; 
unsatisfactory references may be a basis for disapproval of an 
applicant as an observer.
    2. Wishing to serve as an observer should submit a resume and 
supporting documents to the Director, Southeast Fisheries Science 
Center, 75 Virginia Beach Drive, Miami, FL 33149. The Center will 
use this information to determine which names will to be included on 
a list of qualified observers. If an applicant is not approved as an 
observer, the RA will notify the applicant of the disapproval and 
will provide an explanation for the denial.

[FR Doc. 99-17488 Filed 7-12-99; 8:45 am]
BILLING CODE 3510-22-P