[Federal Register Volume 69, Number 6 (Friday, January 9, 2004)]
[Rules and Regulations]
[Pages 1538-1546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-463]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 030908224-3325-02; I.D. 080403B]
RIN 0648-AM23


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Shrimp Fishery of the Gulf of Mexico; Amendment 10

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement the approved measures 
of Amendment 10 to the Fishery Management Plan for the Shrimp Fishery 
of the Gulf of Mexico (Amendment 10), as prepared and submitted by the 
Gulf of Mexico Fishery Management Council (Council). This final rule 
requires, with limited exceptions, the use of NMFS-certified bycatch 
reduction devices (BRDs) in shrimp trawls in the Gulf of Mexico 
exclusive economic zone (Gulf EEZ) east of 85[deg]30' W. long. 
(approximately Cape San Blas, FL). In addition, this final rule 
identifies the certified BRDs currently authorized for use in the Gulf 
EEZ east of 85[deg]30' W. long. and modifies the Gulf Of Mexico Bycatch 
Reduction Device Testing Protocol Manual to reflect the specific 
bycatch reduction criterion applicable for certification of BRDs used 
in this area of the Gulf EEZ. The intended effect of this final rule is 
to reduce bycatch in the Gulf of Mexico shrimp fishery to the extent 
practicable.

DATES: This final rule is effective February 9, 2004.

ADDRESSES: The final regulatory flexibility analysis (FRFA) is 
available from the Southeast Regional Office, NMFS, 9721 Executive 
Center Drive N., St. Petersburg, FL 33702.

FOR FURTHER INFORMATION CONTACT: Dr. Steve Branstetter, telephone: 727-
570-5305, fax: 727-570-5583, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The fishery for shrimp in the Gulf EEZ is 
managed under the Fishery Management Plan for the Shrimp Fishery of the 
Gulf of Mexico (FMP). The FMP was prepared by the Council, approved by 
NMFS, and implemented under the authority of the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act) by 
regulations at 50 CFR part 622.
    On August 14, 2003, NMFS announced the availability of Amendment 10 
and requested comments on it (68 FR 48592). NMFS published the proposed 
rule to implement Amendment 10 and requested comments on the proposed 
rule through November 14, 2003 (68 FR 56252, September 30, 2003). NMFS 
partially approved Amendment 10 on November 2, 2003; the bycatch 
reporting methodology was disapproved based on inconsistency with 
national standard 2. The rationale for the measures in Amendment 10 is 
provided in Amendment 10 and in the preamble to the proposed rule and 
is not repeated here.

Comments and Responses

    NMFS received five comment letters during the public comment 
periods on the amendment and the proposed rule. The comments and NMFS' 
responses follow.
    Comment 1: National standard 9 (NS9) of the Magnuson-Stevens 
Fishery Conservation and Management Act, as amended by the Sustainable 
Fisheries Act requires that fishery management plans include 
conservation and management measures that shall, to the extent 
practicable, minimize bycatch and to the extent bycatch cannot be 
avoided, minimize the mortality of such bycatch. Implementing bycatch 
reduction device (BRD) requirements for the eastern Gulf of Mexico 
would contribute to meeting that requirement.
    Response: In partially approving the Council's Generic Sustainable 
Fisheries Act Amendment in 1999, NMFS concluded that bycatch was not 
reduced to the extent practicable for the entire Gulf of Mexico shrimp 
fishery because no bycatch reduction methods had been proposed for the 
eastern Gulf of Mexico. NMFS urged the Council to develop management 
actions to reduce bycatch in the shrimp fishery in the eastern Gulf of 
Mexico to be in compliance with NS9. NMFS partially approved Amendment 
10 on November 2, 2003, including approval of the proposed action to 
require BRDs in the eastern

[[Page 1539]]

Gulf of Mexico. Promulgation of this final rule gives effect to that 
decision.
    Comment 2: The bycatch reporting methodology proposes to use 
fishery independent data, where data are collected using single nets 
equipped without turtle excluder devices (TEDs) or BRDs. This bi-annual 
fishery-independent survey does not include sampling in the eastern 
Gulf of Mexico. Recent studies have demonstrated that current shrimp 
fishing effort data do not appear to have the spatial accuracy 
necessary for the estimation of bycatch. More accurate estimates of 
bycatch in the shrimp fishery could be generated by the use of 
logbooks, an observer program, and a better approach to measure shrimp 
fishery effort in the Gulf of Mexico.
    Response: NMFS partially approved Amendment 10 on November 2, 2003. 
In a letter explaining its rationale for the partial approval of the 
actions in the amendment, NMFS informed the Council that the proposed 
bycatch reporting methodology ignored the large database of catch and 
bycatch in the fishery that has been documented by observers since the 
1980s, and, thus, any estimates derived from the Council's proposed 
methodology would not be based on the best available scientific 
information. NMFS has recommended to the Council that the most 
scientifically valid estimates of bycatch catch-per-unit-effort in the 
Gulf of Mexico shrimp trawl fishery would be generated by using a 
combination of the fishery-independent (SEAMAP survey) and fishery 
dependent (observer) data, NMFS' best available estimates of shrimp 
fishing effort, and any other relevant data sources that might become 
available. The Council is already considering alternative methods of 
assessing bycatch in the Gulf of Mexico shrimp fishery for inclusion in 
Amendment 13 to the FMP, which is currently under development and 
consideration.
    Comment 3: The reduced revenues being reported by shrimp vessel 
owners are inaccurate. No one verifies those income figures. Therefore, 
the economic concerns of the fishery in regards to the proposed actions 
should be discounted.
    Response: Economic impacts to the shrimp fishery and estimated per-
vessel revenues, in regards to the proposed actions, are not based on 
any declaration of income by the shrimp vessel owners. Per-vessel 
revenues are based on the number of vessels known to be operating in 
the area and the quantity and value of the shrimp products landed that 
were reported to be caught in the affected area. Economic impacts of 
the proposed action are then calculated from, among other things, the 
purchase and installation costs of the BRDs and the potential for 
shrimp loss attributable to the use of the BRDs in the affected area.
    Comment 4: One respondent suggested that the economic impact 
analysis conducted for the rule contained a discrepancy between the 
estimated revenue loss and the estimates of shrimp loss due to BRDs, 
presented questionable estimates of current performance for the average 
shrimp trawler and estimates of average annual revenue loss within the 
fishery, and over-estimated gear-up costs of approximately $200 per 
vessel. It is intuitively discordant to accept that any small or family 
business would operate for any length of time at a loss. NMFS should 
report net cash flow from shrimping operations to vessel owners in 
order to draw proper conclusions, including any going-out-of-business 
projections or statements, regarding what the true economic 
consequences would be to those vessel owners from implementation of the 
proposed rule. In summary, it appears that the costs to the industry 
were nominal compared to the benefits that would be derived from 
reducing finfish bycatch in the fishery.
    Response: NMFS prepared a ``Supplemental Economic Analysis for 
Amendment 10 to the Fishery Management Plan for the Shrimp Fishery of 
the Gulf of Mexico, U.S. Waters,'' (SEA). The SEA acknowledges that 
there will be substantial reductions in bycatch, and that the ecosystem 
and societal benefits of the rule justify its implementation; 
nevertheless, NMFS is obligated to identify the adverse impacts that 
participants in the shrimp trawl fishery are likely to experience. To 
assess those impacts the SEA utilized the General Bioeconomic 
Simulation Model of the Gulf shrimp fishery (GBFSM). The GBFSM is a 
nationally recognized and extensively reviewed model of the fishery 
and, as such, represents the best available analytical model for the 
determination of the expected impacts of proposed actions for this 
fishery.
    Footnote ``i'' of the SEA notes that the model utilizes a more 
complex and dynamic procedure that captures the interactions of shrimp 
harvest--in both abundance and size--according to species, area, depth 
and vessel class for estimating revenue loss rather than simply 
reducing harvest by a fixed percent. This results in revenue losses 
that exceed shrimp loss and provides a more accurate assessment of 
expected shrimp revenue losses. With regards to the estimates of 
current performance of shrimp trawlers, NMFS believes that the 
assessment accurately portrays the fleet and is consistent with the 
conclusion that many participants will leave the fishery as a result of 
the poor economic conditions. It should be clear, however, that the 
statements refer to the average shrimp trawler, and the assessment does 
not conclude that all entities are equally unprofitable. In regard to a 
``net cash flow'' approach, the GBFSM does not consider depreciation, 
and, in fact, estimates profits (losses) in a manner very similar to 
the suggested ``net cash flow'' approach. Finally, NMFS disagrees that 
gear-up costs are over-stated. Available data suggest that the current 
average cost per BRD is approximately $50. Total nets for a vessel 
would be expected to range from 2 nets for a small vessel with no 
spares to 8 nets for a large vessel with a complete set of spares (4 
nets and 4 spares). The assessment assumes average gear-up costs at 
$200 per vessel, when, in fact, costs could be as high as $400 for the 
large shrimp trawls. The assumption of lower average gear-up costs 
would imply no spares and/or an unrealistically low price per BRD. The 
figures reported in the assessment and the assumption that multiple 
BRDs are necessary are, therefore, concluded to more realistically 
capture expectations.
    Comment 5: Two respondents made suggestions for additional 
management measures that should be considered to reduce bycatch in the 
shrimp fishery and improve bycatch estimations. One respondent 
supported the establishment of marine protected areas and reduced 
quotas for all fisheries. One respondent suggested that the Council 
reconsider alternatives that were considered but rejected in the 
amendment, such as closed areas, closed seasons, and bycatch quotas, 
and address research needs to better establish bycatch estimates.
    Response: NMFS and the Council have established numerous closed 
areas in the Gulf of Mexico. These areas have been determined to be 
especially sensitive to the impacts of fishing or are especially 
important to various marine resources (e.g. spawning area closures). In 
Amendment 10, the GMFMC rejected alternatives to seasonally or 
permanently close additional areas, concluding that the use of BRDs in 
all areas all year would provide greater biological benefits. Previous 
evaluations of the benefits of seasonal area closures indicate that 
effort is not reduced; effort is transferred to areas that remain open. 
Thus, overall impacts to bycatch are not substantially altered. As 
noted in the response to Comment 2, the Council is currently 
considering additional alternatives to address bycatch

[[Page 1540]]

reporting, such as bycatch quotas, in developing Amendment 14. In 
regards to quota reductions, the shrimp fishery is not managed by 
quotas, and reducing quotas on all fisheries is beyond the scope of the 
proposed actions. NMFS and the Council carefully monitor the status of 
the stocks in each fishery and establish quotas based on the status of 
each stock. These quotas allow continued harvest without overfishing 
the available resource.

Classification

    The Administrator, Southeast Region, NMFS, determined that the 
approved measures of Amendment 10 are necessary for the conservation 
and management of the Gulf shrimp fishery and that the approved 
measures are consistent with the Magnuson-Stevens Act and other 
applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared a FRFA, based on the RIR, for this final rule. A 
summary of the FRFA follows:
    The objective of this rule is to further reduce bycatch in the Gulf 
shrimp fishery to the extent practicable. The rule will require the use 
of BRDs in all NMFS statistical areas (areas 1 through 8) of the 
eastern Gulf of Mexico EEZ. The Magnuson-Stevens Act, as amended, 
provides the statutory basis for the rule.
    No changes were made in the final rule as a result of public 
comments.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified. The rule will not require any reporting or record-keeping 
or other compliance requirements other than the requirement to use 
BRDs. The use and maintenance of BRDs will not require professional 
skills that materially differ from the skills required to operate a 
shrimp trawl vessel.
    In 2001, approximately 946 shrimp trawl fishing craft were known to 
operate in statistical areas 1 through 8 off the west coast of Florida 
and will be affected by the rule. Within this group of affected 
entities, 460 operate in statistical areas 1 through 3, 283 operate in 
statistical areas 4 and 5, and 592 operate in statistical areas 6 
through 8. Of these 946 shrimp trawlers, 736 craft are Coast Guard-
registered vessels and 210 are state-registered boats; 474 are 
considered large vessels, while 472 are considered small vessels/boats; 
868 (91.8 percent) shrimp trawlers landed shrimp in Florida, 102 landed 
shrimp in Alabama, 4 landed shrimp in Mississippi, and 31 landed shrimp 
in Texas; 49 landed in both Florida and Alabama, 7 landed in both 
Florida and Texas, and 1 each landed in Mississippi/Florida and 
Alabama/Texas.
    Overall, average gross revenue per shrimp trawler from areas 1 
through 8 is $26,440. Average total costs per shrimp trawler are 
$38,991, resulting in an average annual loss of $12,551. The average 
number of crew is 2.3 for small shrimp trawlers and 3.5 for large 
shrimp trawlers, resulting in an overall average of 2.9 crew per 
trawler. Each small trawler is assumed to use two nets, each large 
trawler is assumed to use 4 nets and, in each case, each trawler is 
assumed to have at least one spare set of nets. A commercial fishing 
business is considered a small entity if it is independently owned and 
operated, is not dominant in its field of operation, has annual gross 
revenues less than or equal to $3.5 million. Based on the information 
provided above, all harvesting operations within this fishery are 
determined to be small entities.
    In addition to commercial shrimp trawlers, 61 shrimp dealers will 
be affected by the rule. Average Gulf shrimp purchases per dealer is 
$2,029,221, with an average of $692,622 coming from harvests in areas 1 
through 8. Employment data within the dealer sector are sparse. 
However, for 12 of the affected shrimp dealers, the number of employees 
ranges from 1 to 168, with an average of 37 employees. Further, only 
the single, largest shrimp processor in the Gulf employed more than 500 
workers on average per year. Since shrimp dealers are typically smaller 
operations than shrimp processors in terms of volume and employment, it 
can be assumed that all dealers affected by the rule employ less than 
500 workers per year on average. A dealer is considered a small 
business entity if it employs less than or equal to 500 employees. All 
of the 61 shrimp dealers are, therefore, assumed to be small entities.
    Since all shrimp harvest and dealer operations affected by the rule 
are determined to be small entities, the issue of disproportional 
effects between small and large entities does not arise.
    As previously stated, the average gross revenue per shrimp trawler 
is estimated to be $26,440, and the average annual profit is negative, 
estimated to be a loss of $12,511. Under the rule, the average 
reduction in revenue and profits per shrimp trawler is estimated to be 
$1,444 and $1,112, or reductions of 5.5 percent and 8.9 percent, 
respectively. Detailed break-outs of impacts by vessel size category, 
area of fishing, and state of landing are provided in the FRFA and are 
generally representative of the results presented in this summary. 
However, for shrimp trawlers that operate primarily in lower Florida, 
particularly large shrimp trawlers, the percentage increase in annual 
losses due to the rule likely ranges from 9.2 percent to as much as 
23.4 percent.
    In order for a firm to continue operating, in the short-run, 
revenues must at least cover variable costs where variable costs are 
those costs that change with the amount of fishing activity. Due to the 
large losses throughout the west Florida shrimp fishery, many shrimp 
trawlers cannot currently cover their variable costs. Additional costs 
stemming from new regulatory burdens would accelerate the rate at which 
these vessels are forced to shut down. It is not possible, however, to 
accurately determine how many operations, if any, will, in fact, shut 
down as a result of the rule.
    In terms of the value of shrimp purchases, the loss per dealer is 
estimated to be $22,393, which represents an average of 1.1 percent for 
all dealers, but 2 percent for dealers in Florida. Since profitability 
is unknown for this sector, the significance of such losses cannot be 
determined with certainty. However, given that the number of dealers 
purchasing shrimp from the west Florida fishery declined from 84 in 
1998 to 61 in 2001, and the poor economic health of the harvesting 
sector, it seems likely that losses are being incurred in the dealer 
sector. Dealers in Key West, Ft. Myers Beach, Tampa, St. Petersburg, 
and Tarpon Springs, FL will likely be most susceptible to potential 
impacts of the rule.
    Significant alternatives to the rule include area closures, 
seasonal closures, and modifications to BRD requirements. The rule will 
retain the status quo area and seasonal closures and, thus, impose no 
additional adverse economic impacts on small entities associated with 
these types of management measures. With regards to BRD requirements, 
two alternatives would require BRDs over the identical geographic 
range, statistical areas 1 through 8, and would not reduce the expected 
negative economic impacts. Two alternatives would limit the BRD 
requirement to statistical areas 4 through 8 and would significantly 
reduce the negative economic impacts attributable to the rule. Two 
other alternatives, the status quo, which would not require BRDs, and 
an alternative that would limit the requirement to statistical areas 6 
through 8, would further reduce the negative economic impacts of the 
rule. However, none of these alternatives would satisfy the requirement 
and the Council's intent to minimize bycatch ``to the extent 
practicable.'' Of the

[[Page 1541]]

various alternatives that require BRDs, the rule would accomplish the 
greatest total bycatch reduction since BRDs will be required over a 
greater geographic range. Requiring BRDs over statistical areas 1-8 
will result in the bycatch reduction of approximately 4.006 million lb 
(1.817 million kg), whereas requiring BRDs in only statistical areas 4-
8 would result in the bycatch reduction of approximately 1.91 million 
lb (0.87 million kg).
    Copies of the FRFA and RIR are available upon request (see 
ADDRESSES).

List of Subjects in 50 CFR Part 622

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

    Dated: January 5, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 622 is amended as 
follows:

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

0
1. The authority citation for part 622 continues to read as follows:

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


0
2. In Sec.  622.41, paragraphs (h)(1) and (2) are revised to read as 
follows:


Sec.  622.41  Species specific limitations.

* * * * *
    (h) * * *
    (1) BRD requirement--(i) West of 85[deg]30' W. long. On a shrimp 
trawler in the Gulf EEZ west of 85[deg]30' W. long. and shoreward of 
the 100-fathom (183-m) depth contour, each net that is rigged for 
fishing must have a certified BRD listed in paragraph (h)(2)(i) of this 
section installed, unless exempted as specified in paragraphs 
(h)(1)(iii) through (v) or paragraph (h)(3)(iii) of this section.
    (ii) East of 85[deg]30' W. long. On a shrimp trawler in the Gulf 
EEZ east of 85[deg]30' W. long., each net that is rigged for fishing 
must have a certified BRD listed in paragraph (h)(2)(ii) of this 
section installed, unless exempted as specified in paragraphs 
(h)(1)(iii) through (v) or paragraph (h)(3)(iii) of this section.
    (iii) A shrimp trawler is exempt from the requirement to have a 
certified BRD installed in each net provided that at least 90 percent 
(by weight) of all shrimp on board or offloaded from such trawler are 
royal red shrimp.
    (iv) A shrimp trawler is exempt from the requirement to have a BRD 
installed in a single try net with a headrope length of 16 ft (4.9 m) 
or less provided the single try net is either pulled immediately in 
front of another net or is not connected to another net.
    (v) A shrimp trawler is exempt from the requirement to have a 
certified BRD installed in up to two rigid-frame roller trawls that are 
16 ft (4.9 m) or less in length used or possessed on board. A rigid-
frame roller trawl is a trawl that has a mouth formed by a rigid frame 
and a grid of rigid vertical bars; has rollers on the lower horizontal 
part of the frame to allow the trawl to roll over the bottom and any 
obstruction while being towed; and has no doors, boards, or similar 
devices attached to keep the mouth of the trawl open.
    (vi) A trawl net is rigged for fishing if it is in the water, or if 
it is shackled, tied, or otherwise connected to a sled, door, or other 
device that spreads the net, or to a tow rope, cable, pole, or 
extension, either on board or attached to a shrimp trawler.
    (2) Certified BRDs. The following BRDs are certified for use by 
shrimp trawlers in the respective areas of the Gulf EEZ specified in 
paragraphs (h)(2)(i) and (ii) of this section. Specifications of these 
certified BRDs are contained in appendix D to this part.
    (i) West of 85[deg]30' W. long.
    (A) Fisheye.
    (B) Gulf fisheye.
    (C) Jones-Davis.
    (ii) East of 85[deg]30' W. long.
    (A) Fisheye.
    (B) Gulf fisheye.
    (C) Jones-Davis.
    (D) Extended funnel.
    (E) Expanded mesh.
* * * * *

    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 means--
    (1) In the Gulf EEZ west of 85[deg]30' W. long., 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.
    (2) In the Gulf EEZ east of 85[deg]30' W. long., that the BRD 
reduces the bycatch of total finfish by at least 30 percent by 
weight.
    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, FL 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 no indication exists that problematic events, 
such as those

[[Page 1542]]

listed in Appendix D-5, occurred during the tow which would impact 
or influence the fishing efficiency (catch) of one or both nets; 
and, in the Gulf EEZ west of 85[deg]30' W. long., that the control 
or experimental net caught at least five red snapper during the tow.
    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 bycatch 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; 
(6) a copy of the testing vessel's documentation or its state 
registration; and (7) a copy of the vessel's Federal shrimp permit.
    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 223.207(e). 
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 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 
223.207(e). 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, if the testing is 
related to potential certification of the BRD for use in the Gulf 
EEZ west of 85[deg]30' W. long., 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; a copy of the vessel's Federal shrimp permit; 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 223.207(e). 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

[[Page 1543]]

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 RA 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 authorization issued 
pursuant to 50 CFR 223.207(e). 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 finfish pertinent 
to the certification testing are available to the gear.
    Certification testing of BRDs for use in the Gulf EEZ west of 
85[deg]30' W. long., must be conducted in areas and at times when 
juvenile (age 0 and age 1) red snapper are available to the gear. 
The best time for testing such 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. long., the approximate 
longitude of Cape San Blas, FL. A certification test conducted for 
BRD use west of 85[deg]30' W. long. may also be evaluated for BRD 
use east of 85[deg]30' W. long. because the requirement that 
``finfish'' were available to the gear would have been satisfied. 
However, it is preferable that certification testing for BRD use 
east of 85[deg]30' W. long. be conducted in that same area.
    Data for all certification testing 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 total 
finfish 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 acceptable testing 
areas (see introductory paragraph of section D). 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

[[Page 1544]]

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 catch of the species upon which 
the bycatch reduction criterion is based (e.g., red snapper) 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 of this Manual) (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.

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. In making a decision, the RA 
may consult with evaluation and oversight personnel.
    The RA will determine the effectiveness of the BRD candidate. 
For the western Gulf, 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.
    For the eastern Gulf the RA will determine the effectiveness of 
the BRD candidate to, on average, reduce the bycatch of finfish by 
30 percent by weight compared to the bycatch of finfish in the 
designated control net. To evaluate the efficiency of the BRD 
candidate, the RA will rely on the Southeast Fisheries Science 
Center to provide statistically valid mean reduction rates in 
finfish bycatch attributable to the BRD candidate.
    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. 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.

[[Page 1545]]

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 223.206(d)(1):
    Any sea turtles taken incidentally during the course of fishing 
or scientific research activities 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 actively moving or determined to be 
dead (as described in paragraph (B)(4) below) must be released over 
the stern of the boat. In addition, they must be released only when 
fishing or scientific collection gear is 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 by:
    (1) Placing the turtle on its bottom shell (plastron) so that 
the turtle is right side up and elevating its hindquarters at least 
6 inches (15.2 cm) for a period of 4 to 24 hours. The amount of 
elevation depends on the size of the turtle; greater elevations are 
needed for larger turtles. Periodically, rock the turtle gently left 
to right and right to left by holding the outer edge of the shell 
(carapace) and lifting one side about 3 inches (7.6 cm) then 
alternate to the other side. Gently touch the eye and pinch the tail 
(reflex test) periodically to see if there is a response.
    (2) Sea turtles being resuscitated must be shaded and kept damp 
or moist but under no circumstance be placed into a container 
holding water. A water-soaked towel placed over the head, carapace, 
and flippers is the most effective method in keeping a turtle moist.
    (3) Sea turtles that revive and become active must be released 
over the stern of the boat only when fishing or scientific 
collection gear is 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. Sea turtles that fail to respond to the reflex 
test or fail to move within 4 hours (up to 24, if possible) must be 
returned to the water in the same manner as that for actively moving 
turtles.
    (4) A turtle is determined to be dead if the muscles are stiff 
(rigor mortis) and/or the flesh has begun to rot; otherwise, the 
turtle is determined to be comatose or inactive and resuscitation 
attempts are necessary.
    Any sea turtle so taken must not be consumed, sold, landed, 
offloaded, 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 
Relative to the Western Gulf Criterion

    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 being considered for certification in the western Gulf 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.

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] TR09JA04.000
    
    Ha : BRD does achieve the minimum required reduction rate,
    [GRAPHIC] [TIFF OMITTED] TR09JA04.001
    
R denotes the actual reduction rate (unknown), Ro denotes 
the minimum required reduction rate, [mu]c denotes the 
actual mean CPUE with the control, and [mu]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

[[Page 1546]]

(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] TR09JA04.002

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{time} 
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-percent two-sided confidence interval on R 
consists of all values of Ro for which Ho: R = 
Ro (versus Ha R [ne] 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. 04-463 Filed 1-8-04; 8:45 am]
BILLING CODE 3510-22-P