[Federal Register Volume 72, Number 197 (Friday, October 12, 2007)]
[Proposed Rules]
[Pages 58031-58045]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5061]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 0612243163-7151-01]
RIN 0648-AU59


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Shrimp Fisheries of the Gulf of Mexico and South Atlantic; Revision of 
Bycatch Reduction Device Testing Protocols

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

ACTION: Proposed rule; request for comments.

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SUMMARY: In accordance with the framework procedures for adjusting 
management measures specified in regulations implementing the Fishery 
Management Plan for the Shrimp Fishery of the Gulf of Mexico (Gulf FMP) 
and the Fishery Management Plan for the Shrimp Fishery of the South 
Atlantic Region (South Atlantic FMP), NMFS proposes to consolidate and 
make modifications to the Bycatch Reduction Device Testing Manuals 
(Manual) for the Gulf of Mexico and the South Atlantic regions. This 
proposed

[[Page 58032]]

rule would also revise the bycatch reduction device (BRD) certification 
criterion for the western Gulf of Mexico and would certify additional 
BRDs. The intended effect of this proposed rule is to improve bycatch 
reduction in the shrimp fisheries and better meet the requirements of 
national standard 9.

DATES: Comments must be received no later than 4:30 p.m., eastern time, 
on November 13, 2007.

ADDRESSES: You may submit comments, identified by 0648-AU59, by any one 
of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
     Fax: 727-824-5308, Attn: Steve Branstetter.
     Mail: Steve Branstetter, Southeast Regional Office, NMFS, 
263 13th Avenue South, St. Petersburg, FL 33701.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments. Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    Copies of the proposed regulatory amendment, which includes an 
Environmental Assessment, an Initial Regulatory Flexibility Analysis 
(IRFA), a Regulatory Impact Review (RIR), and a Social Impact 
Assessment/Fishery Impact Statement, may be obtained from the Gulf of 
Mexico Fishery Management Council, 2203 North Lois Avenue, Suite 1100, 
Tampa, FL, 33607; phone: 813-348-1630; fax: 813-348-1711; email: 
[email protected].
    Copies of the proposed consolidated and revised Bycatch Reduction 
Device Testing Manual and the associated IRFA, RIR, and Social Impact 
Assessment/Fishery Impact Statement are available from the Southeast 
Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701; 
phone: 727-824-5305; fax: 727-824-5308.
    Comments regarding the approved collection-of-information 
requirements contained in this rule should be submitted in writing to 
Jason Rueter at the Southeast Regional Office address (above) and to 
David Rostker, Office of Management and Budget (OMB), by e-mail at 
[email protected], or by fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Steve Branstetter, telephone: 727-824-
5305, fax: 727-824-5308, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The fisheries for shrimp in the exclusive 
economic zone (EEZ) of the Gulf of Mexico and the South Atlantic are 
managed under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) and regulations 
at 50 CFR part 622. The regulations implement the Gulf FMP prepared by 
the Gulf of Mexico Fishery Management Council (GMFMC) and the South 
Atlantic FMP prepared by the South Atlantic Fishery Management Council 
(SAFMC).

Background

    Regulations implementing Amendment 9 to the Gulf FMP were published 
April 14, 1998 (63 FR 18139). The final rule established a requirement, 
with limited exceptions, for the use of certified BRDs in shrimp trawls 
towed in the Gulf of Mexico EEZ shoreward of the 100-fm (183-m) depth 
contour west of 85[deg] 30' W. longitude (western Gulf), the 
approximate longitude of Cape San Blas, FL. Regulations implementing 
Amendment 9 also required NMFS to develop a Manual for the Gulf of 
Mexico outlining testing procedure for examining the bycatch reduction 
performance of additional BRD designs. BRDs tested under such a 
procedure and determined to reduce bycatch mortality of juvenile red 
snapper by a minimum of 44 percent from the average level of mortality 
on these age-0 and age-1 groups during the years 1984-1989 would be 
certified for use in the western Gulf shrimp trawl fishery. A final 
rule implementing the requirements for this testing procedure was 
published and became effective July 13, 1999 (64 FR 37690), except for 
the collection-of-information requirements which became effective 
September 29, 1999 (64 FR 52427).
    NMFS had already published similar regulations (62 FR 18536, April 
16, 1997), to implement Amendment 2 to the South Atlantic shrimp FMP, 
requiring the use of BRDs in the South Atlantic penaeid shrimp fishery. 
Amendment 2 established a bycatch reduction certification criterion 
based on 40-percent reductions in the number of Spanish mackerel and 
weakfish. The final rule implementing Amendment 2 also established a 
Manual for the South Atlantic shrimp fishery.
    To better address the requirements of national standard 9 of the 
Magnuson-Stevens Act, regulations implementing Amendment 10 to the Gulf 
FMP (69 FR 1538, January 9, 2004) required BRDs in shrimp trawls fished 
in the EEZ east of 85[deg]30' W. longitude (eastern Gulf). To be 
certified for use in the EEZ of the eastern Gulf, a BRD has to reduce 
finfish bycatch by at least 30 percent, by weight. NMFS established 
this new criterion because juvenile red snapper are not common in the 
eastern Gulf. Therefore, evaluating the effectiveness of a BRD in the 
eastern Gulf, under a red snapper criterion, would not be feasible. A 
general finfish reduction, addressing national standard 9, was the more 
appropriate measure to establish for this region.
    The final rule implementing Amendment 6 the South Atlantic FMP (70 
FR 73383, December 12, 2005) transferred authority to the NMFS 
Southeast Regional Administrator (RA) to modify the SAFMC's Manual, as 
needed, after consultation with the SAFMC. The final rule implementing 
Amendment 6 also modified the South Atlantic BRD certification 
criterion to match the eastern Gulf criterion of a 30-percent finfish 
reduction, and expanded the BRD requirement to include the rock shrimp 
fishery.

BRD Certification Criterion

    In accordance with the BRD framework procedures of regulations 
implementing the Gulf FMP, the proposed rule would modify the existing 
BRD certification criterion for the western Gulf to be consistent with 
the existing criterion for the eastern gulf and the South Atlantic--a 
30-percent reduction in total finfish catch by weight. The existing 
criterion, established in Amendment 9, is based on a 1995 stock 
assessment model no longer applicable to the revised red snapper 
rebuilding target. The 1995 assessment recommended a 50-percent 
reduction in fishing mortality on age 0 and age 1 red snapper from the 
average mortalities during the 1984 to 1989 period. The model estimated 
a fishing mortality rate for the 1984 to 1989 period at 2.06. 
Recognizing a 10-percent reduction in effort had occurred in the shrimp 
fishery since 1989, NMFS established a target for a 44-percent 
reduction from BRDs, which achieved the goal of reducing fishing 
mortality to approximately 1.03. The rationale for this action assumed 
that such reductions, beginning in 1997, would meet the existing goal 
of a 20-percent spawning potential ratio for red snapper by 2019.

[[Page 58033]]

    This approach was valid based on the modeling techniques used for 
red snapper at the time; however, recent stock assessments used 
different models, and the rebuilding target for red snapper has 
changed. For example, with changes to the red snapper stock and to the 
red snapper and shrimp fisheries, in combination with refined 
assessment techniques, the 2005 red snapper stock assessment estimated 
fishing mortality on age 0 and age 1 red snapper at 0.74 for the 1984-
1989 time period. This does not mean the 1995 assessment overestimated 
fishing mortality, rather that the 2005 assessment utilized updated 
information which revised estimates of natural mortality (M). In 
running the models with that revised estimate of M, other parameters, 
including F, also changed. The 2005 assessment went through a rigorous 
SEDAR/peer review process. The fishing mortality rate for juvenile red 
snapper attributable to the shrimp fishery still needs substantial 
reduction to rebuild the red snapper stock by the new 2032 target; 
however, the existing BRD certification criterion of a 44-percent 
reduction in fishing mortality rate to a level of 1.03 is no longer 
appropriate.
    Although the 1995 assessment model could still be used, with a 
change in scaling, to develop a revised BRD reduction criterion based 
on a reduction in fishing mortality, there are still problems with 
using a mortality rate target as the criterion. The annual fishing 
mortality rates for juvenile age 0 and age 1 red snapper are dependent 
on seasonal recruitment and the quantity of shrimp fishing effort 
taking juvenile red snapper. These variables, in turn, affect the 
ability of a given BRD to reduce annual fishing mortality to a specific 
level. Thus, the overall goal of reducing the annual juvenile red 
snapper mortality rate in the shrimp fishery could be achieved from a 
high reduction of red snapper by BRDs, or by a lesser reduction of red 
snapper by BRDs in combination with an overall reduction in fishing 
effort. Under the current certification criterion, based on the 
mortality rate for one year compared to previous years, it is not 
possible to independently distinguish the contribution of the BRD from 
the contribution of overall shrimp effort reductions between the two 
time periods.
    A more appropriate measure of the efficacy of a BRD to reduce 
bycatch is to evaluate the reductions in catch or catch-per-unit-effort 
(CPUE) of a species or species group on a real-time basis. Doing so 
isolates the contribution by the BRD and removes the interactions of 
total shrimping effort and annual fluctuations in recruitment. The 
catch rate of a net with a BRD can be directly compared to the catch 
rate of a net without a BRD, to give reduction levels at any given 
time. Fishing mortality reductions can then be calculated based on the 
documented total effort by the fleet and the estimates of recruitment 
for any given time frame. This is a more appropriate approach than 
attempting to apply mortality rate values for a specific year against a 
previous benchmark value, given the fluctuations in recruitment, 
effort, and CPUE values which affect estimates of annual mortality 
rates attributable to the shrimp fishery.
    In addition, because of the existing statistical procedures 
prescribed in association with the bycatch reduction criterion, it is 
difficult to certify new BRDs. Only two BRD types have been certified 
since 1998 for use in the western Gulf. New BRD designs need to be 
available to shrimp fishermen to better reduce bycatch of red snapper 
and achieve recovery goals of this overfished stock, to better reduce 
overall finfish bycatch to meet the requirements of national standard 
9, and to improve shrimp retention for a more efficient fishery under 
current economic conditions.
    Several potentially effective BRD designs could not meet the very 
specific and rigorous mortality-based criterion established for the 
western Gulf. However, these experimental BRD designs have been 
demonstrated to achieve substantial levels of overall finfish 
reduction, and a moderate and consistent level of red snapper 
reduction, exceeding the red snapper reduction being achieved by the 
most commonly used configuration of the fisheye BRD. In addition, these 
BRDs are similar to the fisheye BRD in terms of overall shrimp 
retention.
    A change in the bycatch reduction criterion west of Cape San Blas, 
FL, from a reduction in fishing mortality of red snapper to a reduction 
in finfish catch would increase the opportunity to certify a greater 
variety of BRDs for use in the fishery, provide a uniform bycatch 
reduction criterion and list of certified BRDs for the Gulf of Mexico 
and the South Atlantic regions, and improve the overall reduction in 
juvenile red snapper bycatch mortality. BRDs may have different 
capabilities under different fishing conditions, and having a wider 
variety of BRDs for use in the fishery would allow fishermen to choose 
the most effective BRD for the specific local fishing conditions.

Revisions to the BRD Testing Protocol Manual

Background

    BRD testing is conducted by comparing the differences in the catch 
and bycatch of two nets that are towed simultaneously by a single 
vessel. One net (control net) is a standard rigged shrimp trawl without 
a BRD, and one net (experimental net) is identically configured, except 
it contains the experimental BRD. Assuming the two nets have equal or 
similar fishing efficiencies, the differences in catch and bycatch 
between the two nets can be attributed to the inclusion of the 
experimental BRD in one net. Since the Gulf of Mexico and South 
Atlantic Manuals have been in effect, several experimental BRDs have 
been tested for certification, but none have been certified. Two 
specific issues appear to be impeding the successful testing and 
eventual certification of experimental BRDs.
    To be certified by the RA, the BRD candidate must demonstrate an 
observed reduction rate meeting the bycatch reduction criterion with 
some degree of statistical certainty. Currently, a modified Student t-
test, a standard statistical approach, is used to evaluate the data 
collected during an experimental BRD evaluation. The criterion for the 
western Gulf requires there be no more than a 5-percent probability the 
true reduction rate is less than one standard deviation from the 
observed mean reduction rate. The magnitude of any standard deviation 
of a sample is dependent on the data set in question, and the analysis 
is based on the assumption the individual data points reflect a 
consistent result among sampling trials during a test. In the case of 
evaluating a BRD candidate in the marine environment, where organisms 
in the environment are not randomly distributed, catch rates can be 
highly variable among successive trawl tows or even between nets during 
a single tow. This variability increases the standard deviation, and 
this increase is exacerbated by the small minimum sample size required 
by the Manual, 30 comparative tows. A sample size of 30 is a recognized 
minimum standard for conducting a Student t-test, but this standard 
assumes the data being analyzed have relatively similar values, which 
as noted, is not often true in the marine environment. However, this 
sample size was considered necessary to minimize the cost and effort 
involved in conducting an experimental BRD test.
    The variability among data points and the resulting uncertainty 
regarding the observed sample mean can be reduced

[[Page 58034]]

in two ways: (1) the researcher must ensure the sampling effort will 
generate consistent results between samples, thus reducing variability 
(increase precision); or (2) the sample size must be increased to 
better ensure the resulting sample mean or average value is more likely 
representative of the true mean value (increase accuracy). The first of 
these options is not feasible for most biological sampling efforts; as 
noted, organisms are not randomly distributed and collections of these 
organisms would never be expected to produce consistent results. The 
second alternative can be achieved, but only with a greatly increased 
cost to the researcher; initial estimates suggest that between a four-
fold and eight-fold increase in sample size would be needed.
    A second and equally critical issue for the initial development of 
experimental BRDs involves the field sampling procedures prescribed in 
the Manuals. These rigorous procedures were established with the intent 
of reducing the inherent variability and uncertainty in the data 
stemming from a small, 30-tow sample size. Several field tests were not 
completed successfully (e.g., 30 successful comparative tows could not 
be completed) because of a failure to meet one or more of the 
procedural requirements set forth in the Manuals. However, not being 
able to complete a field test on potentially effective BRDs because of 
logistical constraints has substantial negative consequences for 
conservation. Further development of particularly productive concepts 
may cease, and BRD efficiency might never rise above the current level. 
This discourages innovative developments to improve BRDs.
    These issues were identified at a 1999 shrimp fishery stakeholder's 
workshop sponsored by the Gulf and South Atlantic Fisheries Foundation, 
Inc. Recommendations stemming from the workshop were made available to 
the GMFMC and SAFMC for their consideration. Based on this information 
as well as additional public input regarding the existing bycatch 
Manuals, the GMFMC and SAFMC requested that NMFS develop alternative 
procedures to address and alleviate these impediments to testing and 
certifying new BRD candidates, while maintaining the statistical 
confidence BRDs will meet the established bycatch reduction criterion 
and achieve bycatch reduction goals.
    NMFS is proposing to consolidate and make revisions to the Manuals 
for the Gulf of Mexico and the South Atlantic region. The new, combined 
BRD Testing Manual implemented under this proposed rule would establish 
alternative statistical procedures and field sampling procedures. The 
new statistical procedures would address the issue of statistical 
uncertainty due to limited sample size when evaluating the 
effectiveness of experimental BRD designs. Additionally, the proposed 
rule would modify the Manual to incorporate additional flexibility in 
the field sampling procedures. Coupled with the proposed modification 
to the statistical approach, alternative sampling procedures provide 
flexibility to better meet the logistical constraints of field sampling 
while maintaining an acceptable level of statistical precision and 
accuracy.

Gear Changes During a BRD Test

    According to the current Manuals, if the fishing gear used at the 
start of the test incurs damage and requires replacing, then the 
certification test of a BRD candidate must begin anew. Under actual 
field conditions, damage to fishing gear often occurs before the 
completion of 30 tows. Even if 30 consecutive tows are completed during 
a test without incident, the data represent results collected aboard a 
single vessel using only one trawl configuration in a limited area and 
during a specific time frame. Results from such a test might not be 
applicable to other vessels fishing at other times of the year, in 
other areas, or using other shrimp trawl configurations.
    The proposed rule would modify the procedure to allow the 
compilation of results from a series of tests to meet the 30-tow 
minimum sample size for a complete BRD test. This alternative would 
eliminate the need to reinitiate tests after a gear failure. Under the 
proposed modifications, should gear failure occur, the applicant would 
replace the damaged gear, conduct ``tuning'' tows (see Gear Tuning 
below) to determine the new gear did not affect the fishing efficiency 
between the two nets, and then continue the test. Minor repairs to the 
gear (e.g., sewing holes in the webbing; replacing a broken tickler 
chain with a new one of the same configuration) would not be considered 
a gear change. Additionally, under this proposed procedure, it would be 
possible to conduct the test over a longer period, aboard different 
vessels, using different fishing gear configurations (with the same BRD 
design), or while fishing in different areas. Should the data collected 
in this manner demonstrate the BRD meets the bycatch reduction 
criterion, there is a greater likelihood the BRD would be effective 
under a broader array of actual commercial fishing conditions.

Tow Times

    Currently, the sampling procedures require the selection of a fixed 
tow time before beginning a test. Each tow may not deviate more than 10 
percent from the selected tow time. The fishing efficiency of a net 
changes (decreases) during a tow as the catch in the net increases. The 
fixed-tow time requirement was intended to reduce that source of 
variability in the data set, thus reducing the resulting uncertainty 
associated with the sample mean reduction rate.
    However, because of the non-random and patchy distribution and 
abundance of organisms in the marine environment, a decrease or 
increase in the tow time may be necessary during a specific BRD test. 
For example, the total catch taken during a tow may be greater than 
anticipated. If so, it may not be possible to keep the catch from each 
net separated for sampling, thus precluding a successful sample of the 
catch from a specific net. Under such conditions, shorter tow times 
would produce manageable quantities of catch for sampling. Conversely, 
catches of shrimp may be lower than anticipated, and the vessel captain 
may want to increase the tow time. In either case, under the current 
requirements, the test would have to be aborted and reinitiated if the 
tow time were changed in increments greater than 10 percent of the 
original tow time.
    This proposed rule would allow the tow time to be changed after the 
initiation of a test. The applicant would still be required to propose 
a preferred tow time in the operations plan submitted to the RA as part 
of the application for a Letter of Authorization (LOA). However, the 
applicant would be allowed to make reasonable adjustments to the tow 
times during a given test to adapt to local fishing conditions and 
successfully complete the test.
    Because the fishing efficiency of a trawl will change depending on 
the amount of catch in the net, and the efficiency of the experimental 
BRD similarly may be affected by the amount of catch in the net, 
excessive differences in tow times for segments of a complete 30-tow 
test sample could introduce a bias in the overall results. Therefore, 
any tow time changes would need to be described and justified in a 
report submitted to the RA at the conclusion of the test. The RA would 
have to approve the changes before the data would be evaluated for 
certification. The RA would consult with scientific and technical 
staff, including the SEFSC, regarding the acceptability of

[[Page 58035]]

any alterations prior to making a final determination.

Gear Tuning and Fishing Efficiency Bias

    As noted in the ``Background'' section, the basic assumption in 
assessing the bycatch reduction efficiency of the BRD candidate during 
paired-net tests is the BRD candidate in the experimental net 
represents the only factor causing a difference in catch from the 
control net. Therefore, prior to beginning a test series, the nets to 
be used in the tests must be calibrated (tuned) to minimize, to the 
extent practicable, any differences in catch efficiency, or ``bias''. 
Nets would need to be tuned again after any gear modification or 
change.
    Even so, some efficiency bias may remain between nets, or biases 
may develop during the test. To address the issue of potential biases 
in fishing efficiency between nets, the current procedures require 
rotation of the functioning experimental BRD between the port and 
starboard nets every four to six tows (Gulf of Mexico) or daily (South 
Atlantic). The intent of this requirement was to negate any remaining 
bias by introducing that bias into both the control and experimental 
data on a regular basis, thus reducing the uncertainty associated with 
the resulting sample mean reduction rate.
    To move a complex BRD candidate integrated into the structure of 
the trawl (e.g., a soft turtle excluding device) may require moving 
large sections of the net, or even the entire net, on each side of the 
vessel. This would require loading the trawl doors onboard, 
disconnecting, moving and re-connecting the nets, and re-deploying the 
doors and nets overboard. This activity can take several hours to 
complete. Not only does this increase non-fishing time for the 
commercial vessel, it increases the amount of time required to complete 
a BRD test. The need to load and handle the heavy trawl doors and other 
fishing equipment on a frequent basis increases concerns about vessel 
crew safety. All of these issues can be alleviated by allowing greater 
flexibility in the establishment of a rotational schedule best meeting 
the needs of the specific proposed test.
    This proposed rule would remove the static requirement to rotate 
the BRD every few tows, and allow the applicant to propose, as part of 
the application for a LOA from the RA, a reasonable gear rotation 
schedule to accommodate the complexity of the gear being tested. The 
proposed rotational schedule would still need to ensure equal numbers 
of tows are conducted with the BRD candidate in both the port and 
starboard nets. Because the applicant would be monitoring the catch 
rates in each net after each tow, if a substantial bias develops, the 
applicant could take action to re-tune the gear or increase the 
rotational schedule as needed. The applicant's proposed rotational 
schedule would have to be approved by the RA before the LOA would be 
issued. If the rotational schedule is changed during the test, the 
applicant would need to provide a rationale for the action in the final 
report submitting the data for certification. The RA would consult with 
scientific and technical staff regarding the acceptability of any 
changes to the rotational schedule prior to making a final 
determination regarding the acceptability of the data.

Use of a Try Net During a BRD Test

    A try net is a separate, small net pulled for brief periods by a 
shrimp trawler during an extended trawling effort to test for shrimp 
concentrations or determine fishing conditions. In the case of vessels 
fishing four nets (quad-rigged), the nets being used to evaluate the 
experimental BRD are positioned beyond the influence of the try net, 
thus the use of a try net on a quad-rigged vessel is allowed under the 
current procedures. However, on a vessel pulling only two nets (twin-
rigged) the try net is fishing in front of the main net on the same 
side of the vessel. In that case, the try net is removing or diverting 
some catch before the catch could enter the main net, and introducing 
bias.
    To avoid that bias, the current requirements in the Gulf of Mexico 
prohibit the use of a try net during BRD tests conducted aboard twin-
rigged vessels. Nevertheless, the use of a try net is an integral part 
of normal shrimping activities, ensuring the vessel is fishing on 
commercial quantities of shrimp during each extended tow. Because BRD 
candidate tests are intended to be conducted aboard actively fishing 
commercial vessels, even if a state government, academic institution, 
or other entity is the applicant of record, the quantity of shrimp and 
incidental catch should reflect real fishing conditions. Use of a try 
net is necessary to ensure the catch levels reflect those expected 
during normal commercial shrimping operations.
    The proposed rule would modify the procedures in the Manual to 
allow the use of a try net during BRD tests aboard twin-rigged vessels 
with the try net fishing directly in front of one of the main test 
nets. To minimize and negate the potential bias, NMFS is proposing a 
condition requiring the fishing time for the try net to remain a 
consistent percentage of the total tow time for each tow throughout the 
course of the test. This condition would expose both the control and 
experimental nets (as they are rotated) to equivalent effects 
introduced by the try net. This requirement should adequately address 
the shrimp fishermen's need to use a try net as part of the commercial 
operation while negating any potential bias introduced from the use of 
the try net.

Data Collection

    The current procedures require the collection of information on a 
variety of species taken as catch and bycatch in shrimp trawls. The 
current SAFMC Manual requires the collection of information on 25 
species or species groups of finfishes. However, the certification 
criterion is a 30-percent reduction, by weight, in total finfish, in 
aggregate, not individual species. Therefore, the species specific data 
requirement is outdated, and while informative, is not needed to 
determine whether a BRD meets the existing certification criterion. For 
the western Gulf, currently a BRD is certified only on its ability to 
reduce the bycatch mortality of juvenile red snapper. However, this 
proposed rule would revise the western Gulf criterion to also be a 30-
percent reduction in total finfish, and the specific requirements to 
sample red snapper would no longer be appropriate.
    The proposed rule would reduce mandatory data collection 
requirements for tests conducted to certify a BRD. Mandatory data 
collection during a certification test would be limited to recording 
the total catch of each net, the total catch of commercial shrimp in 
each net, and the total catch (or total catch in a pre-determined 
sample) of all finfish species in aggregate. For tests conducted in the 
western Gulf, applicants would be encouraged to record the total catch 
of red snapper in each net, but these data would not be used in making 
a decision to certify a BRD. Similarly, for all areas, data collection 
for any other specific portions of the catch (i.e., specific finfish 
species) is encouraged but voluntary, as this information is not 
required for the certification of the BRD candidate.

Statistical Evaluation

    The current certification approach was developed from the 
procedures used in the Congressionally-mandated BRD research program of 
the early 1990s. From a statistical standpoint, the goal is to develop 
a procedure that has zero chance of passing a device with a true 
reduction less than the target value, and zero chance of failing a 
device with

[[Page 58036]]

true reduction greater than the target value. Realistically, there will 
always be some probability a BRD with true reduction less than the 
target criterion will pass (Type I error), and some probability a BRD 
with true reduction greater than the target criterion will fail (Type 
II error). In a certification context, a Type II error (rejecting an 
acceptable BRD) has important negative conservation consequences, i.e., 
not being able to use a more effective BRD, or not having a wider 
variety of BRD types available for use. A Type I error (accepting an 
unsatisfactory BRD) may also have negative conservation consequences.
    The concept of Type II errors is of general concern to the 
statistical community, and has prompted substantial statistical 
research and scientific publications on the properties of Type II 
error. The probability of a Type II error of a hypothesis test is known 
as the power of the test. Power analyses of the existing BRD data 
indicated, because of the inherent variability, certification of 
devices was unlikely unless the BRD demonstrated a 60- to 70-percent 
sample mean reduction rate. This was not the intent when NMFS 
established certification criteria of substantially lesser values.
    It is preferable to be able to evaluate an experimental BRD via 
probability statements of the form ``There is at least 'X' probability 
the true reduction meets the target.'' SEFSC scientists have 
recommended the use of a statistical standard, based on a Bayesian 
approach, as a more applicable method than the current use of the 
``classical'' Student-t test, or frequentist approach. The Bayesian 
approach is more instructive about how competing risks (Type I and Type 
II errors) can be controlled, given the new information now available 
regarding the statistical power of the data and approaches. 
Additionally, the Bayesian approach allows for the development and 
evaluation of the capabilities of an experimental BRD in terms of 
probability statements.
    The proposed rule would replace the current ``classical'' 
statistical approach with a Bayesian approach. Under a Bayesian 
approach, two probability statements would address the existing null 
hypothesis regarding the certification of a BRD. These probability 
statements would be: (1) The probability the true reduction meets the 
target is at least 'A'; and (2) The probability the true reduction is 
less than some minimum threshold is not more than 'B'. The probability 
statements are based on observed data sets.
    To be certified, the data set for a BRD candidate would need to 
demonstrate a best point estimate (sample mean) meeting the 
certification criterion. Additionally, the BRD candidate would have to 
satisfy both probability statements above. The statistical properties 
of the data being collected dictate a 50-percent probability value for 
'A'. For any BRD, even if it were tested indefinitely under identical 
conditions, there would be an ever-narrowing probability distribution 
on either side of the mean observed reduction rate. Nevertheless, half 
the probability distribution would include values less than the mean, 
and half of the distribution would include values greater than the 
mean. Therefore, to certify BRDs capable of meeting the target, NMFS 
has determined the first probability statement can be adequately 
expressed as: ``There is at least a 50-percent probability the true 
reduction meets the bycatch reduction criterion.'' This would be 
similar to other NMFS actions that have at least a 50-percent 
probability of achieving a stock rebuilding target.
    There will always be some risk the data set generated for a 
specific device will result in a sample mean reduction rate meeting the 
certification criterion, when the device's true reduction rate is less 
than the certification criterion. Therefore, selecting a value for a 
minimum threshold and a value for 'B' is a greater focus to managing 
the risk of accepting a BRD not meeting the criterion. To address this 
issue, it is necessary to establish a minimum threshold level, below 
the target criterion, which is completely unacceptable, and set 'B' 
accordingly, such that there is only a low risk of accepting a BRD 
because of chance variation in the available data.
    Based on the statistical results generated from data sets 
certifying the BRDs currently in use in the South Atlantic and Gulf of 
Mexico shrimp fisheries, SEFSC scientists have determined the second 
probability statement can be adequately expressed as: ``There is no 
more than a 10-percent probability the reduction rate of the BRD 
candidate is more than 5 percent less than the bycatch reduction 
criterion.'' In other words, for the current 30-percent finfish 
reduction target, there is no more than a 10-percent probability the 
true reduction rate of the BRD candidate is less than 25 percent.
    The proposed change would increase the opportunity to certify a 
greater variety of BRDs for use in the fishery, while maintaining a 
statistical confidence in regard to the efficiency of the BRD. BRDs may 
have different capabilities under different fishing conditions, and 
having a wider variety of BRDs for use in the fishery would allow 
fishermen to choose the most effective BRD for the specific local 
fishing conditions. This would enhance compliance with national 
standard 9 of the Magnuson-Stevens Act, and in the western Gulf of 
Mexico, potentially accelerate the rebuilding efforts for the 
overfished red snapper resource in the Gulf of Mexico.

Provisional Certification

    In addition to revising the statistical evaluation for BRD 
certification, NMFS proposes to create a ``provisional certification'' 
category for experimental BRDs. A provisional certification would apply 
to an experimental BRD not quite meeting the criteria for 
certification, but deemed likely to meet the criteria with further 
testing. To be provisionally certified, statistical analyses of the 
test results for an experimental BRD must demonstrate there is at least 
a 50-percent probability the true reduction rate of the BRD candidate 
is no more than 5 percent less than the bycatch reduction criterion.
    In other words, the BRD candidate must demonstrate a best point 
estimate (sample mean) within 5 percent of the certification criterion.
    A provisional certification of a BRD would be effective for 2 years 
from the date of publication in the Federal Register of any final rule 
determining provisional certification. This time period would allow 
additional wide-scale industry evaluation of the BRD candidate. The 
intent would be to further refine the design or application of the 
experimental BRD so it could eventually meet the certification 
criterion.

Certification of New BRDs

    The new BRD certification criterion to be established with this 
proposed rule, along with the revisions to the Manual, especially the 
addition of a ``provisional certification,'' would allow new and more 
effective BRDs to be certified for use in the fishery. There would be 
no change to the status of the existing certification of the Jones 
Davis BRD in the southeast shrimp fishery. The original data used to 
certify that BRD indicate it achieves a 58-percent reduction in total 
finfish bycatch; there is a 100-percent probability the true reduction 
rate meets the certification criterion.
    The proposed rule would certify the Modified Jones Davis BRD for 
use by the shrimp fishery throughout EEZ of the Gulf and South 
Atlantic. This device has been demonstrated to provide a 33-percent 
reduction in total finfish

[[Page 58037]]

bycatch. The power test indicates this device has a 98-percent 
probability the true reduction rate of the BRD is greater than the 
certification criterion, and there is less than a 1-percent probability 
the true reduction rate of the BRD is 25 percent or less.
    The proposed rule would also provisionally certify the extended 
funnel BRD for use in the western Gulf. The extended funnel BRD is 
currently certified for use in the eastern Gulf and South Atlantic. The 
data set from the 1990's certifying the extended funnel BRD indicated 
it reduced total finfish by 30 to 35 percent. Newer information 
collected during 2001 through 2003 in the Gulf indicates the extended 
funnel BRD is reducing finfish by only about 27 percent. Therefore, the 
extended funnel BRD would not meet the proposed new certification 
criterion. However, consistent with the proposed criterion for 
provisional certification, there is a 74-percent probability the true 
reduction rate of the BRD is at least 25 percent. Therefore, this 
proposed rule would change the status of the extended funnel BRD in the 
Gulf to a provisional certification which would remain effective for 
two years from the date of publication of any final rule to implement 
this regulatory amendment. NMFS anticipates additional work on the 
extended funnel BRD would improve its performance, and allow it to meet 
the certification criterion. No new information is available regarding 
the efficacy of the extended funnel BRD in the South Atlantic. The 
shrimp fishery in the South Atlantic tends to operate in shallower 
water and has a different species composition to its bycatch. The new 
information on the extended funnel BRD was all collected in the Gulf of 
Mexico; there are no new data collected from the South Atlantic fishery 
to indicate the BRDs are not meeting the bycatch reduction targets. 
Therefore, the BRD will remain certified in the South Atlantic based on 
prior determinations the BRD meets the criterion in that part of the 
fishery.
    This proposed rule would also provisionally certify one new design, 
the composite panel BRD, for use in the Gulf and South Atlantic shrimp 
fisheries. This BRD design has only been tested in the Gulf, but with a 
provisional certification, this BRD can be more extensively evaluated 
for its use in the South Atlantic. The mean sample reduction rate is 
25.1 percent. There is a 52- percent probability the true reduction 
rate of this BRD design is at least 25 percent. Therefore, NMFS 
proposes to provisionally certify this BRD design. This provisional 
certification would remain effective for two years from the date of 
publication of any final rule to implement this regulatory amendment; 
NMFS anticipates this would allow sufficient time to further test this 
design in both the Gulf and South Atlantic fisheries.
    The fisheye BRD was one of two BRD designs originally certified 
under the existing criterion for use in the western Gulf. Because of 
its simplistic design and low cost, it became the industry standard. 
The most common configuration and placement in the trawl is greater 
than 10.5 ft (3.2 m) from the trawl's cod end tie-off. According to 
NMFS' SEFSC estimates, the fisheye BRD in this configuration is 
achieving between 11- and 25-percent reductions in fishing mortality on 
juvenile red snapper and a 14- to 23-percent reduction in finfish 
bycatch by weight. Thus, it does not meet the current red snapper 
morality target or the proposed 30-percent finfish reduction criterion. 
Whether the criterion is changed or not, NMFS would not be able to 
maintain the certification of the industry-standard fisheye BRD placed 
10.5 ft (3.2 m) forward because it does not meet the existing red 
snapper criterion or the proposed 30-percent finfish reduction 
criterion. However, placed in other areas of the cod end, this type of 
BRD is more effective, and NMFS is developing subsequent rulemaking to 
modify the allowable placement of the fisheye BRD in trawl nets. The 
analysis in this proposed rule discusses indirect impacts arising from 
the change in the certification criterion, and its potential impact on 
the future certification and possible decertification or revision to 
allowable BRDs. For example, it appears at this time that the fisheye 
BRD would be restricted in its allowable placement in the shrimp trawl 
net. NMFS is developing separate rulemaking to address this additional 
change, and the potential direct economic impacts associated with Gulf 
shrimp vessels having to change or modify the current placement of BRDs 
in their shrimp trawl nets will be fully analyzed in the subsequent 
rule.
    Similarly, it appears the efficiency of the expanded mesh BRD, 
currently certified for use in the eastern Gulf and South Atlantic, has 
decreased. During the original tests of the expanded mesh BRD in the 
mid-1990s, the BRD achieved between 30- and 35-percent reduction in 
total finfish. Recent tests of the expanded mesh BRD in the Gulf 
indicate it is only achieving about a 17-percent reduction in total 
finfish, thus, it does not meet the criteria to be certified or 
provisionally certified. NMFS may revise the certification status of 
the expanded mesh BRD in a separate rulemaking.
    For all of these BRD designs, the potential of the BRDs has not 
changed, but it appears fishing behavior, or some other factor in the 
fleet, has changed. Actions to maximize shrimp retention, without 
concurrently maintaining fish reductions, have diminished the BRDs' 
effectiveness to reduce bycatch. There have been numerous technological 
changes to the overall construction of shrimp trawl gear, such as new 
turtle excluder devices and longer nets. In addition, there have been 
changes in fishing practices to help increase shrimp retention, such as 
faster towing speeds and modified retrieval procedures. The exact 
reasons for the BRDs' change in efficiency are not known.
    The new BRDs would actually improve red snapper bycatch reduction 
and general finfish reduction relative to what the industry is 
currently achieving with its use of the forward-placed fisheye BRD 
because these new BRDs have a better exclusion rate than the industry 
standard. The forward-placed fisheye BRD reduces fishing mortality on 
juvenile red snapper by about 11 percent and reduces the biomass of 
finfish by about 14 percent. The Modified Jones Davis BRD reduces red 
snapper mortality by approximately 31 percent and reduces finfish by 33 
percent. The extended funnel BRD reduces juvenile red snapper mortality 
by approximately 25 percent and reduces finfish biomass by about 27 
percent.
    NMFS is now addressing red snapper management through measures 
proposed in the Joint Amendment 27 to the FMP for the Reef Fish 
Resources of the Gulf of Mexico and Amendment 14 to the FMP for the 
Shrimp Fishery of the Gulf of Mexico. NMFS has initiated review of this 
joint amendment and announced the availability of this joint amendment 
for public comment on July 26, 2007 (72 FR 41046). Given the current 
declines in the number of participants and effort expended by the 
shrimp fishery, it is more practicable to control red snapper mortality 
in the shrimp fishery through effort controls of that fishery versus 
the use of BRDs. However, BRDs still play an important role in 
addressing national standard 9 for total bycatch reduction potential.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, I 
have determined that this proposed rule is consistent with the 
regulatory amendment proposing these BRD-related revisions, other 
provisions of the Magnuson-Stevens Act, and other

[[Page 58038]]

applicable law, subject to further consideration after public comment.
    This proposed rule has been determined to be significant for 
purposes of Executive Order 12866.
    NMFS prepared an IRFA, as required by section 603 of the Regulatory 
Flexibility Act, for this proposed rule. The IRFA describes the 
economic impact this proposed rule, if adopted, would have on small 
entities. A description of the action, why it is being considered, and 
the legal basis for this action are contained at the beginning of this 
section in the preamble and in the SUMMARY section of the preamble. A 
copy of the full analysis is available from NMFS (see ADDRESSES). A 
summary of the IRFA follows.
    The Magnuson-Stevens Act provides the statutory basis for the 
proposed rule. The proposed rule would modify the procedures for field 
testing BRD candidates for use in the Gulf of Mexico and South Atlantic 
EEZ commercial shrimp fisheries and would modify the bycatch reduction 
criterion for certifying BRDs for use in the penaeid shrimp fishery in 
the Gulf EEZ west of Cape San Blas, FL.
    The purpose of this proposed rule is to implement more practical 
field testing procedures for BRD certification candidates and to 
establish a realistic bycatch reduction threshold for the Gulf EEZ 
commercial shrimp fishery.
    No duplicative, overlapping or conflicting Federal rules have been 
identified.
    The primary entities that are expected to apply for the BRD 
certification process are state government, academic, and not-for-
profit entities. Independent commercial shrimping operations in either 
the Gulf or South Atlantic may also be included among applicants. NMFS 
estimates up to 24 applicants will apply for the BRD certification 
process during the first year and a smaller number in following years. 
While the identity of entities that might pursue future BRD testing 
cannot be determined with any certainty, based on past applicants, BRD 
testing is expected to be undertaken by NOAA Fisheries Service, the 
Texas Parks and Wildlife Department, the Florida Department of 
Environmental Protection, Texas A&M University, the University of 
Georgia, other institutions, and owners of shrimp vessels in the Gulf.
    There are approximately 700 vessels permitted to operate in the 
South Atlantic EEZ commercial shrimp fishery. The most current 
assessment of the South Atlantic commercial shrimp fishery covers the 
period 2000-2002 and encompasses vessels that operated in both state 
and EEZ waters. While this assessment covered a larger universe of 
vessels, an average of approximately 1,900 vessels per year, and 
different economic conditions, it represents the best profile available 
at this time. Over this period, average gross revenue per vessel ranged 
from approximately $71,000 to approximately $81,000. The highest gross 
revenue per vessel from all commercial harvesting activities did not 
exceed $1.0 million.
    For the Gulf EEZ, as of March 26, 2007, a moratorium permit is 
required to fish for shrimp. Although it is unknown how many eligible 
applicants will apply for a moratorium permit, 2,666 vessels would 
qualify for the permit and are assumed to constitute the universe of 
indirectly affected shrimping vessels.
    An evaluation of revenue distribution by vessel size indicates 
substantial differences in yearly average revenues between large (at 
least 60 ft (18.3 m) in length) and small vessels in the Gulf EEZ 
commercial shrimp fishery. For the large vessel group, average annual 
revenues per vessel in 2004 was approximately $140,000, while the 
comparable value for small vessels was approximately $27,000. Across 
all vessels, the average annual gross revenue per vessel was 
approximately $110,000. Maximum yearly gross revenue reported by a 
qualifying vessel was approximately $1,046,000.
    On average, ``small'' vessels are also ``smaller'' in regards to 
almost all of their physical attributes (e.g. they use smaller crews, 
fewer and smaller nets, have less engine horsepower and fuel capacity, 
etc.). Small vessels are also older on average. Larger vessels also 
tend to be steel-hulled. Fiberglass hulls are most prominent among 
small vessels, though steel and wood hulls are also common. Nearly two-
thirds of large vessels have freezing capabilities while few small 
vessels have such equipment. Small vessels still rely on ice for 
refrigeration and storage, though more than one-third of large vessels 
also rely on ice. Some vessels are so small that they rely on live 
wells for storage.
    An important difference between large and small Gulf EEZ commercial 
shrimp vessels is with respect to their dependency on the food shrimp 
fishery. The percentage of revenues arising from food shrimp landings 
is approximately 81 percent for large vessels, but only approximately 
58 percent for small vessels. Thus, on average, large vessels are more 
dependent than their smaller counterparts on the food shrimp fishery. 
However, dependency on food shrimp is much more variable within the 
small vessel sector than the large vessel sector. Many small vessels 
are quite dependent on food shrimp landings, while others illustrate 
little if any dependency.
    Finally, according to recent projections, on average, both small 
and large Gulf EEZ commercial shrimp vessels are experiencing 
significant economic losses, ranging from a -27 percent rate of return 
in the small vessel sector to a -36 percent rate of return in the large 
vessel sector (-33 percent on average for the fishery as a whole). 
Therefore, almost any but the most minor additional financial burden 
would be expected to generate a significant adverse impact on affected 
vessels and potentially hasten additional exit from the fishery.
    The Small Business Administration (SBA) defines a small 
organization as any not-for-profit enterprise that is independently 
owned and operated and not dominant in its field of operation. This 
definition includes private educational institutions. The SBA also 
defines a small governmental jurisdiction as the government of cities, 
counties, towns, townships, villages, school districts, or special 
districts with a population less than 50,000. Finally, the SBA defines 
a small business in the commercial fishing activity as an entity that 
is independently owned and operated, is not dominant in its field of 
operation (including its affiliates), and has average annual total 
receipts not in excess of $4.0 million annually (NAICS codes 114111 and 
114112, finfish and shellfish fishing).
    While the identity of entities that might pursue future BRD testing 
cannot be determined with any certainty, based on past applicants, BRD 
testing is expected to be undertaken by NOAA Fisheries Service, the 
Texas Parks and Wildlife Department, the Florida Department of 
Environmental Protection, Texas A&M University, the University of 
Georgia, other institutions, and owners of shrimp vessels in the Gulf. 
The respective state agencies are extensions of the respective state 
governments and, as such, clearly exceed the SBA population thresholds 
for small government entities. Similarly, both Texas A&M University and 
the University of Georgia are, as public universities, extensions of 
the respective state government educational systems, with staff being 
state employees, and, therefore, would similarly be appropriately 
classified as large entities. Although no private colleges or 
universities that might apply for the BRD testing process have been 
identified, as private rather than public educational institutions, 
while some exceptions may exist, private educational institutions 
generally are understood to be smaller in terms of

[[Page 58039]]

student population, staff, and operational budgets than public 
institutions and, as such, are determined for the purpose of this 
analysis to be small entities. Given the aforementioned maximum annual 
revenue figures for Gulf and South Atlantic commercial shrimping 
operations, vessels that would be expected to participate in the 
certification program are determined to be small business entities for 
the purpose of this analysis. Thus, most entities that may apply for 
the BRD certification process are likely to be small entities, and only 
a maximum of 24 entities would be expected to apply the first year, 
with fewer entities applying in subsequent years.
    All entities that would qualify for the Gulf EEZ commercial shrimp 
fishery moratorium permit, 2,666 vessels, would be expected to be 
indirectly affected by the proposed Gulf bycatch reduction criterion. 
Given the maximum revenue provided above for Gulf EEZ commercial 
shrimping operations, all shrimp vessels that have the potential to be 
indirectly impacted by the proposed change in the Gulf bycatch 
reduction criterion are determined to be small entities for the purpose 
of this analysis.
    The outcome of ``significant economic impact'' can be ascertained 
by examining two issues: disproportionality and profitability.
    The disproportionality question is: do the proposed regulations 
place a substantial number of small entities at a significant 
competitive disadvantage to large entities? Revision to the Manual 
would not be expected to result in any direct or indirect adverse 
economic impacts to any affected entities since the reporting burden 
per applicant will not increase and the revisions, in and of 
themselves, will not cause any BRDs to be certified, provisionally 
certified, or decertified in future actions. Therefore, the issue of 
disproportionate impacts would not apply to this action.
    Similarly, the proposed change to the Gulf EEZ commercial shrimp 
fishery bycatch reduction criterion would not result in any direct 
adverse economic impacts on participants in the Gulf EEZ commercial 
shrimp fishery. However, the change in the bycatch reduction criterion 
would be expected to generate indirect impacts on vessels in the Gulf 
EEZ commercial shrimp fishery as a result of future certification, 
provisional certification, and/or decertification actions. All of these 
vessels have been determined to be small business entities. Hence, the 
issue of disproportionality would also not apply to this action.
    The proposed certifications and provisional certifications would 
also impact all vessels in the Gulf EEZ commercial shrimp fishery, as 
well as vessels in the South Atlantic EEZ commercial shrimp fishery in 
some cases. As all of these entities were determined to be small 
entities, the issue of disproportionality would not apply to these 
proposed actions.
    The profitability question is: do the regulations significantly 
reduce profit for a substantial number of small entities?
    The proposed revision of the Manual would not directly affect 
fishery participation or harvest because it merely establishes 
procedures under which research and gear development may proceed. The 
proposed bycatch reduction criterion for the Gulf EEZ commercial shrimp 
fishery is not expected to result in any direct adverse economic 
impacts the participants in this fishery because it is an 
administrative action.
    The proposed criterion would, however, be expected to result in 
decertification of some currently used BRDs/configurations through 
subsequent regulatory action. This decertification would require the 
use of alternative certified or provisionally certified BRDs and would 
result in increased operating costs. Among the BRDs currently in use, 
the maximum increase in operating costs that would be incurred as a 
result of future decertification would be the first-year BRD 
replacement costs, ranging from $2,550 to $4,250 per vessel per year, 
associated with the Jones-Davis BRD--the most expensive of the 
remaining certified BRDs. This increase would represent between 2.3 
percent and 3.8 percent of an average vessel's annual revenues. 
Industry-wide, the re-gearing costs for the Gulf EEZ commercial shrimp 
fishery would be expected to range from approximately $2.8-$10.1 
million for all moratorium permit qualifiers, or approximately $2.2-
$7.7 million if only active qualifiers elect to obtain moratorium 
permits. However, these costs would directly accrue only to a 
subsequent rule and not to the current proposed action.
    The proposed criterion would also allow for the Modified Jones-
Davis BRD to be certified for use in the Gulf of Mexico and South 
Atlantic EEZ shrimp fisheries, the extended funnel BRD to be 
provisionally certified for use in the western Gulf EEZ shrimp fishery, 
and the composite panel BRD to be provisionally certified for use in 
the Gulf of Mexico and South Atlantic EEZ shrimp fisheries, as is 
proposed in this rule. However, these three BRDs are used by few shrimp 
vessel owners at present, are more costly to purchase, and attain 
higher levels of shrimp loss on average relative to the predominantly 
used fisheye BRD. As such, no shrimp vessel owners would be expected to 
voluntarily switch from their currently used BRDs to these BRDs. As 
such, no direct impacts would result from their certification or 
provisional certification. Therefore, this proposed rule would not be 
expected to result in any direct impact on the profitability of any 
small business entities in the shrimp fishery or associated industries. 
However, substantial reductions in annual gross revenues could occur as 
a result of subsequent BRD decertification associated with future 
rulemaking. Depending upon the BRD type currently used and the 
availability of replacements, small vessels could lose from 
approximately $300 to $4,000, or from less than 1 percent to more than 
8 percent of annual gross revenues, while large vessels could 
experience a small gain of approximately $600 to a loss of $26,000, or 
a less than 1 percent gain to a greater than 14 percent loss. Even 
assuming net shop supply is able to meet demand, if all vessels are 
able to switch to certified BRDs, the range of impacts is only reduced 
to a maximum projected annual loss of $1,400 (3 percent) for small 
vessels and $14,000 (8 percent) for large vessels, though this last 
figure would apply to relatively few vessels, with the majority of 
large vessels projected to experience a loss of $3,500 to $4,000 (2 
percent) reductions in annual gross revenues.
    The management measures considered in this proposed rule do not 
affect the reporting or record-keeping requirements for shrimp vessels. 
This proposed action, which only modifies the performance standards 
used in BRD certification, does not require additional records or 
report preparation.
    Two alternatives, the proposed alternative and the status quo, were 
considered for the action to modify the Manual. The status quo would 
continue overly restrictive and inflexible testing procedures and would 
not achieve NMFS' objectives.
    Three alternatives, including the status quo, were considered for 
the action to change the BRD bycatch reduction criterion. Two 
alternatives contained multiple options, resulting in seven effective 
alternatives. As previously discussed, changing the criterion is an 
administrative action and would not simultaneously decertify BRDs 
currently in use or require immediate replacement. Decertification, 
with attendant costs, however, could be

[[Page 58040]]

expected to occur through subsequent action.
    The status quo would be expected to result in the decertification 
of the fisheye BRD for use in the Gulf commercial shrimp fishery, 
inducing industry-wide replacement costs of approximately $6.0-$10.1 
million for all moratorium permit qualifiers, or approximately $4.6-
$7.7 million if only active qualifiers elect to obtain moratorium 
permits. The minimum range of these costs is greater than that of the 
proposed rule because while the proposed rule could also lead to the 
decertification of the fisheye BRD via subsequent action, it would 
allow the use of the cheaper modified Jones-Davis BRD.
    The second alternative would continue to base the bycatch reduction 
target on juvenile red snapper, similar to the status quo, but 
considered three different minimum thresholds. The two lower thresholds 
(12 percent and 20 percent) would be expected to allow continued use of 
the fisheye BRD, which is the most commonly used BRD, resulting in no 
direct adverse economic impacts and no increased indirect costs. 
Neither threshold, however, would meet the objective of national 
standard 9, which requires that bycatch be reduced to the extent 
practicable. Hence, these lower thresholds would not meet the Magnuson-
Stevens Act's requirements. The highest threshold (30 percent) would be 
expected to result in the same effects as the status quo, resulting in 
greater indirect adverse economic impacts than the proposed rule.
    The third alternative would base the bycatch reduction criterion on 
all finfish and considered four minimum thresholds, ranging from 10-40 
percent. The two lower thresholds (10 percent and 20 percent) would be 
expected to allow continued use of fisheye BRDs, resulting in no direct 
adverse economic impacts and increased indirect gear costs. However, 
neither threshold would meet the Magnuson-Stevens Act requirement of 
achieving bycatch reduction to the extent practicable. The highest 
threshold (40 percent) would not be expected to result in any direct 
adverse economic impacts but would be expected to result in indirect 
increased gear costs equal to those of the status quo, which are higher 
than those of the proposed rule. This alternative would also set an 
excessive standard that few BRD designs could achieve.
    This rule contains approved collection-of-information requirements-
-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, 
subject to the Paperwork Reduction Act (PRA). These collection-of-
information requirements have been approved by OMB under Control Number 
0648-0345. 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 194 hours 
per test. 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 2.8-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. 
These burden estimates include the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. 
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).
    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall a person be subject to a penalty for failure 
to comply with, a collection of information subject to the requirements 
of the PRA unless that collection of information displays a currently 
valid OMB control number.

List of Subjects in 50 CFR Part 622

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

    Dated: October 9, 2007.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 622 is 
proposed to be 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.  622.41, paragraph (h) is removed and reserved and 
paragraph (g) is revised to read as follows:


Sec.  622.41  Species specific limitations.

* * * * *
    (g) BRD requirement for Gulf and South Atlantic shrimp. On a shrimp 
trawler in the Gulf EEZ or South Atlantic EEZ, each net that is rigged 
for fishing must have a BRD installed that is listed in paragraph 
(g)(2) of this section and is certified or provisionally certified for 
the area in which the shrimp trawler is located, unless exempted as 
specified in paragraphs (g)(1)(i) through (iv) of this section. 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.
    (1) Exemptions from BRD requirement--(i) Royal red shrimp 
exemption. A shrimp trawler is exempt from the requirement to have a 
certified or provisionally 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.
    (ii) Try net exemption. A shrimp trawler is exempt from the 
requirement to have a certified or provisionally certified 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.
    (iii) Roller trawl exemption. A shrimp trawler is exempt from the 
requirement to have a certified or provisionally 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.
    (iv) BRD certification testing exemption. A shrimp trawler that is 
authorized by the RA to participate in the pre-certification testing 
phase or to

[[Page 58041]]

test a BRD in the EEZ for possible certification, has such written 
authorization on board, and is conducting such test in accordance with 
the ``Bycatch Reduction Device Testing Manual'' is granted a limited 
exemption from the BRD requirement specified in this paragraph (g). 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 or provisionally certified 
BRDs.
    (2) Procedures for certification and decertification of BRDs. The 
process for the certification of BRDs consists of two phases--an 
optional pre-certification phase and a required certification phase. 
The RA may also provisionally certify a BRD.
    (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 ``Bycatch Reduction Device 
Testing Manual.''
    (A) A person who wants to conduct pre-certification phase testing 
must submit an application to the RA, as specified in the ``Bycatch 
Reduction Device Testing Manual.'' The ``Bycatch Reduction Device 
Testing Manual'', which is available from the RA, 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. If the RA 
authorizes pre-certification, the RA's LOA 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 or South Atlantic EEZ must submit an 
application to test such BRD, conduct the testing, and submit the 
results of the test in accordance with the ``Bycatch Reduction Device 
Testing Manual.'' The RA will issue a LOA to conduct certification 
trials upon the vessel specified in the application if the RA finds 
that: The operation plan submitted with the application meets the 
requirements of the ``Bycatch Reduction Device Testing Manual''; the 
observer identified in the application is qualified; and 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 
consistent with the ``Bycatch Reduction Device Testing Manual'', NMFS, 
through appropriate rulemaking procedures, will add the BRD to the list 
of certified BRDs in paragraph (g)(3) of this section; and provide the 
specifications for the newly certified BRD, including any special 
conditions deemed appropriate based on the certification testing 
results.
    (iii) Provisional certification. Based on data provided consistent 
with the ``Bycatch Reduction Device Testing Manual'', the RA may 
provisionally certify a BRD if there is at least a 50-percent 
probability the true reduction rate of the BRD is no more than 5 
percent less than the bycatch reduction criterion. Through appropriate 
rulemaking procedures, NMFS will add the BRD to the list of 
provisionally certified BRDs in paragraph (g)(3) of this section; and 
provide the specifications for the BRD, including any special 
conditions deemed appropriate based on the certification testing 
results. A provisional certification is effective for 2 years from the 
date of publication of the notification in the Federal Register 
announcing the provisional certification.
    (iv) Decertification. The RA will decertify a BRD if NMFS 
determines the BRD does not meet the requirements for certification or 
provisional certification. Before determining whether to decertify a 
BRD, the RA will notify the appropriate Fishery Management Council in 
writing, and the public will be 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 
decertify the BRD, the RA will proceed with decertification via 
appropriate rulemaking.
    (3) Certified and provisionally certified BRDs--(i) Certified BRDS. 
The following BRDs are certified for use in the Gulf EEZ and South 
Atlantic EEZ unless indicated otherwise. Specifications of these 
certified BRDs are contained in Appendix D to this part.
    (A) Fisheye.
    (B) Gulf fisheye.
    (C) Jones-Davis.
    (D) Modified Jones-Davis.
    (E) Expanded mesh.
    (F) Extended funnel -South Atlantic EEZ only.
    (ii) Provisionally certified BRDs. The following BRDs are 
provisionally certified for use in the areas and for the time periods 
indicated. Specifications of these provisionally certified BRDs are 
contained in Appendix D to this part.
    (A) Extended funnel- Gulf EEZ only; through the date that is 2 
years after the date of publication of the final rule implementing this 
regulatory amendment.
    (B) Composite panel -Gulf EEZ and South Atlantic EEZ; through the 
date that is 2 years after the date of publication of the final rule 
implementing this regulatory amendment.
* * * * *
    3. In Appendix D to part 622, sections F and G are added to read as 
follows:

Appendix D to Part 622--Specifications for Certified BRDs

* * * * *
F. Modified Jones-Davis.
    1. Description. The Modified Jones-Davis BRD is a variation to 
the alternative funnel construction method of the Jones-Davis BRD 
except the funnel is assembled by using depth-stretched and heat-set 
polyethylene webbing instead of the flaps formed from the extension 
webbing. In addition, no hoops are used to hold the BRD open.
    2. Minimum Construction and Installation Requirements. The 
Modified Jones-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 (4.1-cm) stretch mesh number 30 
nylon 39 \1/2\ meshes by 150 meshes. A tube is formed from the 
extension webbing by sewing the 39 \1/2\-mesh side together.
    (b) Funnel. The funnel must be constructed from two sections of 
1 5/8-inch (4.1-cm) heat-set and depth-stretched polypropylene or 
polyethylene webbing. The two side sections must be rectangular in 
shape, 25 meshes on the leading edge by 21 meshes deep. The 25-mesh 
leading edge of each polyethylene webbing section must be sewn 
evenly two meshes in from the front of the extension webbing 
starting 25 meshes from the top center on each side. The 21-mesh 
edge must be sewn to the extension webbing on a 9-bar and 1-mesh 
angle in the top and bottom, forming a V-shape funnel.
    (c) Cutting the escape opening. The leading edge of the escape 
openings 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 635 inches\2\ (4,097 cm\2\). Two 
escape openings, 6 meshes wide by 12 meshes deep, must be cut 4 
meshes apart in the extension webbing, starting at the top center 
extension seam, 7 meshes back from the leading edge, and 30 meshes 
to the left and to the right (total of four openings). The four 
escape openings must be double selvaged for strength.
    (d) Cone fish deflector. The cone fish deflector is constructed 
of 2 pieces of 1 5/8-inch (4.1-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

[[Page 58042]]

together to form a cone of webbing. The apex of the cone fish 
deflector must be positioned within 12 inches (30.5 cm) of the 
posterior edge of the funnel.
    (e) 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.
    (f) Installation of the cone in the extension. The apex of the 
cone must be installed in the extension within 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 (or at least 4-mesh wide 
strip of number 21 or heavier webbing) 4 ft (1.22 m) in length must 
be attached to the apex of the cone. This piece of twine or webbing 
must be attached within 5 meshes of the aft edge of the funnel at 
the center of each of its sides. Two 12-inch (30.5-cm) pieces of 
number 60 (or heavier) 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 
extension webbing to keep the cone from inverting into the funnel.
G. Composite Panel.
    1. Description. The Composite Panel BRD is a variation to the 
alternative funnel construction method of the Jones-Davis BRD except 
the funnel is assembled by using depth stretched and heat set 
polyethylene webbing with square mesh panels on the inside instead 
of the flaps formed from the extension webbing. In addition, no 
hoops are used to hold the BRD open.
    2. Minimum Construction and Installation Requirements. The 
Composite Panel 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 (4.1-cm) stretch mesh number 30 
nylon 24 \1/2\ meshes by 150 meshes. A tube is formed from the 
extension webbing by sewing the 24 \1/2\-mesh side together. The 
leading edge of the webbing extension must be attached no more than 
4 meshes from the posterior edge of the TED grid.
    (b) Funnel. The V-shaped funnel consists of two webbing panels 
attached to the extension along the leading edge of the panels. The 
top and bottom edges of the panels are sewn diagonally across the 
extension toward the center to form the funnel. The panels are 2-ply 
in design, each with an inner layer of 1 5/8-inch (4.1- cm) heat-set 
and depth-stretched polyethylene webbing and an outer layer 
constructed of 2-inch (5.1-cm) square mesh webbing (1-inch bar). The 
inner webbing layer must be rectangular in shape, 36 meshes on the 
leading edge by 20 meshes deep. The 36- mesh leading edges of the 
polyethylene webbing should be sewn evenly to 24 meshes of the 
extension webbing 1 \1/2\ meshes from and parallel to the leading 
edge of the extension starting 12 meshes up from the bottom center 
on each side. Alternately sew 2 meshes of the polyethylene webbing 
to 1 mesh of the extension webbing then 1 mesh of the polyethylene 
webbing to 1 mesh of the extension webbing toward the top. The 
bottom 20-mesh edges of the polyethylene layers are sewn evenly to 
the extension webbing on a 2 bar 1 mesh angle toward the bottom back 
center forming a v-shape in the bottom of the extension webbing. The 
top 20-mesh edges of the polyethylene layers are sewn evenly along 
the bars of the extension webbing toward the top back center. The 
square mesh layers must be rectangular in shape and constructed of 
2-inch (5.1-cm) webbing that is 18 bars or squares on the leading 
edge and 32 bars or squares down each side. The 18 bar leading edge 
of each square mesh layer must be sewn evenly 1 bar to 2 meshes of 
the 36-mesh leading edge of the polyethylene section and the 32-bar 
sides are sewn evenly (in length) to the 20-mesh edges of the 
polyethylene webbing. This will form a v-shape funnel using the top 
of the extension webbing as the top of the funnel and the bottom of 
the extension webbing as the bottom of the funnel.
    (c) Cutting the escape opening. There are two escape openings on 
each side of the funnel. The leading edge of the escape openings 
must be located on the same row of meshes in the extension webbing 
as leading edge of the composite panels. The lower openings are 
formed by starting at the first attachment point of the composite 
panels and cutting 9 meshes in the extension webbing on an even row 
of meshes toward the top of the extension. Next, turn 90 degrees and 
cut 15 points on an even row toward the back of the extension 
webbing. At this point turn and cut 18 bars toward the bottom front 
of the extension webbing. Finish the escape opening by cutting 6 
points toward the original starting point. The top escape openings 
start 5 meshes above and mirror the lower openings. Starting at the 
leading edge of the composite panel and 5 meshes above the lower 
escape opening, cut 9 meshes in the extension on an even row of 
meshes toward the top of the extension. Next, turn 90 degrees, and 
cut 6 points on an even row toward the back of the extension 
webbing. Then cut 18 bars toward the bottom back of the extension. 
To complete the escape opening, cut 15 points forward toward the 
original starting point. The area of each escape opening must total 
at least 212 in\2\ (1,368 cm\2\). The four escape openings must be 
double salvaged for strength.

    Note: The ``Bycatch Reduction Device Testing Manual'' is 
published, excluding the Manual's appendices, as an appendix to this 
document. See the contact under ADDRESSES to obtain a complete 
Manual. This appendix will not appear in the Code of Federal 
Regulations.

Appendix--Bycatch Reduction Device Testing Manual Definitions

    Bycatch reduction criterion is the standard by which a BRD 
candidate will be evaluated. To be certified for use by the shrimp 
fishery in the Exclusive Economic Zone off the southeastern United 
States (North Carolina through Texas), the BRD candidate must 
demonstrate a successful reduction of total finfish bycatch 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 BRD to be tested for certification for use in 
the commercial shrimp fishery of southeastern United States.
    Certified BRD is a BRD that has been tested according to the 
procedure outlined herein and has been determined by the RA as 
having met the bycatch reduction criterion.
    Control trawl means a trawl that is not equipped with a BRD 
during the evaluation.
    Evaluation and oversight personnel means scientists, observers, 
and other technical personnel who, by reason of their occupation or 
scientific expertise or training, are approved by the RA as 
qualified to evaluate and review the application and testing 
process.
    Experimental trawl means the trawl that is equipped with the BRD 
candidate during an evaluation.
    Net/side bias means when the net(s) being fished on one side of 
the vessel demonstrate a different catch rate (fishing efficiency) 
than the net(s) being fished on the other side of the vessel during 
paired-net tests.
    Observer means a person on the list maintained by the RA of 
individuals qualified (see Appendix H) to supervise and monitor a 
BRD certification test.
    Paired-net test means a tow during certification trials where a 
control net and an experimental net are fished simultaneously, and 
the catches and catch rates between the nets are compared.
    Provisional Certification Criterion means a secondary benchmark 
which would allow a BRD candidate to be used for a time-limited 
period in the southeastern shrimp fishery. To meet the criterion, 
the BRD candidate must demonstrate a successful reduction of total 
finfish bycatch by at least 25 percent by weight.
    Provisionally certified BRD means a BRD that has been tested 
according to the procedure outlined herein and has been determined 
by the RA as having met the provisional certification criterion. A 
BRD meeting the provisional certification criterion would be 
certified by the RA for a period of 2 years.
    Regional Administrator (RA) means the Southeast Regional 
Administrator, National Marine Fisheries Service.
    Required measurements refers to the quantification of gear 
characteristics such as the dimensions and configuration of the 
trawl, the BRD candidate, the doors, or the location of the BRD in 
relation to other parts of the trawl gear that are 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 trawler means any vessel that is equipped with one or 
more trawl nets whose on-board or landed catch of shrimp is more 
than 1 percent, by weight, of all fish comprising its on-board or 
landed catch.
    Successful tow means that the control and experimental trawl 
were fished in accordance with the requirements set forth herein and

[[Page 58043]]

the terms and conditions of the letter of authorization, and there 
is no indication problematic events, such as those listed in 
Appendix D-5, occurred during the tow to 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 (i.e., the time interval beginning when the winch 
is locked after deploying the net overboard, and ending when 
retrieval of the net is initiated).
    Trawl means a net and associated gear and rigging used to catch 
shrimp. The terms trawl and net are used interchangeably throughout 
this Manual.
    Try net means a separate net pulled for brief periods by a 
shrimp trawler to test for shrimp concentrations or determine 
fishing conditions (e.g., presence of absence of bottom debris, 
jellyfish, bycatch, and seagrasses).
    Tuning a net means adjusting the trawl and its components to 
minimize or eliminate any net/side bias that exists between the two 
nets that will be used as the control and experimental trawls during 
the certification test.
I. Introduction
    This Bycatch Reduction Device Testing Manual (Manual) 
establishes a standardized process for evaluating the ability of 
bycatch reduction device (BRD) candidates to meet the established 
bycatch reduction criterion, and be certified for use in the EEZ by 
the southeastern shrimp fishery. BRDs are required for use in shrimp 
trawls fished shoreward of the 100-fathom (183-meter) depth contour 
in the Gulf of Mexico, and within the EEZ of the South Atlantic 
region.
    Various BRD requirements also exist in state waters in the South 
Atlantic and off Florida and Texas in the Gulf of Mexico. Persons 
wishing to conduct BRD candidate evaluations exclusively in state 
waters do not need to apply to NMFS for authorization to conduct 
these tests, but should contact the appropriate state officials for 
authorizations. However, for data collected in such evaluations to 
be considered by NMFS for certification, the operations plan and 
data collection procedures must meet the criteria established in 
this Manual.
II. BRD Candidate Evaluations
A. Application
    Persons interested in evaluating the efficiency of a BRD 
candidate must apply for, receive, and have on board the vessel 
during the evaluation, a Letter of Authorization (LOA) from the 
Regional Administrator (RA). To receive an LOA, the applicant must 
submit the following documentation to the RA: (1) a completed 
application form (Appendix A); (2) a brief statement of the purpose 
and goal of the activity for which the LOA is requested; (3) an 
operations plan (see Section C below) describing the scope, 
duration, dates, and location of the test, and methods that will be 
used to conduct the test; (4) an 8.5- inch x 11-inch (21.6-cm x 
27.9-cm) diagram drawn to scale of the BRD design; (5) an 8.5-inch x 
11-inch (21.6-cm x 27.9-cm) diagram drawn to scale of the BRD in the 
shrimp trawl; (6) a description of how the BRD is supposed to work; 
(7) a copy of the testing vessel's U.S. Coast Guard documentation or 
its state registration; and (8) a copy of the testing vessel's 
Federal commercial shrimp vessel permit.
    An applicant requesting an LOA to test an unapproved turtle 
excluder device (TED) as a BRD (including modifications to a TED 
that would enhance finfish exclusion) must first apply for and 
obtain from the RA an experimental TED authorization pursuant to 50 
CFR 223.207(e)(2). Applicants should contact the Protected Resources 
Division of NMFS' Southeast Regional Office for further information. 
The LOA applicant must include a copy of that authorization with the 
application.
    Incomplete applications will be returned to the applicant along 
with a letter from the RA indicating what actions the applicant may 
take to make the application complete.
    There is no cost to the applicant for the RA's administrative 
expenses such as reviewing applications, issuing LOAs, evaluating 
test results, or certifying BRDs. However, all other costs 
associated with the actual testing activities are the responsibility 
of the applicant, or any associated sponsor. If an application for 
an LOA is denied, the RA will provide a letter of explanation to the 
applicant, together with relevant recommendations to address the 
deficiencies that resulted in the denial.
B. Allowable Activities
    Issuance of an LOA to test a BRD candidate in the South Atlantic 
or Gulf of Mexico allows the applicant to remove or disable the 
existing certified BRD in one outboard net (to create a control 
net), and to place the BRD candidate in another outboard net in lieu 
of a certified BRD (to create an experimental net). All other trawls 
under tow during the test must have a certified BRD, unless these 
nets are specifically exempted in the LOA. All trawls under tow 
during the test must have an approved TED unless operating under an 
authorization issued pursuant to 50 CFR 223.207(e)(2), whereby the 
test is being conducted on an experimental TED. The LOA, and 
experimental TED authorization if applicable, must be on board the 
vessel while the test is being conducted. The term of the LOA will 
be 60 days; should circumstances require a longer test period, the 
applicant may apply to the RA for a 60-day extension.
C. Operations Plan
    An operations plan should be submitted with the application 
describing a method to compare the catches of shrimp and fish in a 
control net (net without a BRD candidate installed) to the catches 
of the same species in an experimental net (a net configured 
identically to the control net but also equipped with the BRD 
candidate).
    The applicant may choose to conduct a pre-certification test of 
a prototype BRD candidate. A pre-certification test would be 
conducted when the intent is to assess the preliminary effectiveness 
of a prototype BRD candidate under field conditions, and to make 
modifications to the prototype BRD candidate during the field test. 
For pre-certification testing, the operations plan must include only 
a description of the scope, duration, dates, and location of the 
test, along with a description of methods that will be used to 
conduct the test. No observer is required for a pre-certification 
test, but the applicant may choose to use an observer to maintain a 
written record of the test. The applicant will maintain a written 
record for both the control and experimental net during each tow. 
Mandatory data collection is limited to the weight of the shrimp 
catch and the weight of the total finfish catch in each test net 
during each tow. These data must be submitted to NMFS at the 
conclusion of the test. Although not required, the applicant may 
wish to incorporate some or all the certification test requirements 
listed below.
    For a BRD candidate to be considered for certification, the 
operations plan must be more detailed and address the following 
topics:
    (1) 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 the control net. 
Therefore, the nets to be used in the tests must be calibrated 
(tuned) to minimize, to the extent practicable, any net/side bias in 
catch efficiency prior to beginning a test series, and tuned again 
after any gear modification or change. Additional information on 
tuning shrimp trawls to minimize bias is available from the 
Harvesting Technology Branch, Mississippi Laboratories, Pascagoula 
Facility, 3209 Frederic Street, Pascagoula, MS 39568 1207; phone 
(601) 762 4591.
    (2) A standard tow time for a proposed evaluation should be 
defined. Tow times must be representative of the tow times used by 
commercial shrimp trawlers. The applicant should indicate what 
alternatives will be considered should the proposed tow time need 
adjustment once the test begins.
    (3) A minimum sample size of 30 successful tows using a specific 
BRD candidate design is required for the statistical analysis 
described in Section F. No alterations of the BRD candidate design 
are allowed during a specific test series. If the BRD candidate 
design is altered, a new test series must be started. If a gear 
change (i.e., changing nets, doors, or rigging) is required, the 
nets should be tuned again before proceeding with further tests to 
complete the 30-tow series. Minor repairs to the gear (e.g., sewing 
holes in the webbing; replacing a broken tickler chain with a new 
one of the same configuration) are not considered a gear change.
    (4) Biases that might result from the use of a try net should be 
reduced to the extent practicable. Total fishing times for a try net 
must be a consistent percentage of the total tow time during each 
tow made in the test.
    (5) To incorporate any net/side bias that remains after the 
tuning tows (e.g., the effect of a try net), or to accommodate for 
bias that develops between the control and experimental nets during 
the test, the operations plan should outline a timetable ensuring 
that an equal number of successful tows are made with the BRD 
candidate employed in both the port and starboard nets.
    (6) Mandatory data to be collected during a test includes: (1) 
detailed gear specifications as set forth in Appendices B and C, and 
(2) pertinent information concerning the location, duration and 
catch

[[Page 58044]]

from individual tows as set forth in Appendices D and F.
    (7) 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. Mandatory 
data collections include recording the weight of the total catch of 
each test net (control and experimental nets), the catch of shrimp 
(i.e., brown, white, pink, rock, or other shrimp by species) in each 
test net, and the catch of total finfish in aggregate in each test 
net.
    (8) When recording the detailed information on the species found 
in the catch, if the catch in a net does not fill one standard 1-
bushel [ca. 10 gallon] (30 liters) polyethylene shrimp basket (ca. 
70 lb) (31.8 kg), but the tow is otherwise considered successful, 
data must be collected on the entire catch of the net, and recorded 
as a ``select'' sample (see Appendices D and F), indicating that the 
values represent the total catch of the particular net. If the catch 
in a net exceeds 70 lb (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 the net. The 
total weight of the sample must be recorded, as well as the weights 
(and numbers as applicable) of the various species or species groups 
found within that sample. These sample values can then be 
extrapolated to estimate the quantity of those species or species 
groups found in the total catch of the particular net.
    (9) Although not a criterion for certification, applicants 
testing BRD candidates are encouraged to collect additional 
information that may be pertinent to addressing bycatch issues in 
their respective regions. For example, In the western Gulf of Mexico 
applicants are especially encouraged to collect information on red 
snapper. If the applicant chooses to collect these data, the total 
(``select'') catch of the target species from each test net (not 
just from the sample) should be recorded along with lengths for as 
many as individuals per net per tow as set forth in Appendices E and 
F. Additional information in regard to the catch can be recorded on 
forms such as Appendix G.
    The operations plan should address what the applicant will do 
should it become necessary to deviate from the primary procedures 
outlined in the operations plan. The plan should describe in detail 
what will be done to continue the test in a reasonable manner that 
is consistent with the primary procedures. For example, it may 
become necessary to alter the pre-selected tow time to adapt to 
local fishing conditions to successfully complete the test. Prior to 
issuing a LOA, the RA may consult with evaluation personnel to 
review the acceptability of these proposed alterations.
D. Observer Requirements
    It is the responsibility of the applicant to ensure that a 
qualified observer (see Appendix H) is on board the vessel during 
the certification tests. 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 H. 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, when any fishing vessel is 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.), the owner or operator of the vessel must 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 information as described in this Manual. 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. The observer has the right to 
check for major safety items, and if those items are absent or 
unserviceable, the observer may choose not to sail with the vessel 
until those deficiencies are corrected.
E. Reports
    A report on the BRD candidate test results must be submitted by 
the applicant or associated sponsor before the RA will consider the 
BRD for certification. The report must contain a comprehensive 
description of the tests, copies of all completed data forms used 
during the tests, and photographs, drawings, and similar material 
describing the BRD. The captain, vessel owner, or the applicant must 
sign and submit the cover form (Appendix I). The report must include 
a description and explanation of any unanticipated deviations from 
the operations plan which occurred during the test. These deviations 
must be described in sufficient detail to indicate the tests were 
continued in a reasonable manner consistent with the approved 
operations plan procedures. 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, such 
as 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 determination of sufficiency would be based on 
whether the applicant adhered to the prescribed testing procedure or 
provided adequate justification for any deviations from the 
procedure during the test. If the RA determines that the data are 
sufficient for evaluation, the BRD candidate will be evaluated to 
determine if it meets the bycatch reduction criterion. In making a 
decision, the RA may consult with evaluation and oversight 
personnel. Based on the data submitted for review, the RA will 
determine the effectiveness of the BRD candidate, using appropriate 
statistical procedures such as Bayesian analyses, to determine if 
the BRD candidate meets the following criteria:
    (1) There is at least a 50-percent probability that the true 
reduction rate of the BRD candidate meets the bycatch reduction 
criterion (i.e., the BRD candidate demonstrates a best point 
estimate [sample mean] that meets the certification criterion); and
    (2) There is no more than a 10-percent probability that the true 
reduction rate of the BRD candidate is more than 5 percent less than 
the bycatch reduction criterion.
    To be certified for use in the fishery, the BRD candidate will 
have to satisfy both criteria. Criterion 1 will ensure that the 
observed reduction rate of the BRD candidate has an acceptable level 
of certainty that it meets the bycatch reduction criterion. 
Criterion 2 will ensure BRD candidates meeting the bycatch reduction 
criterion also demonstrate a reasonable degree of certainty that the 
observed reduction rate represents the true reduction rate of the 
BRD candidate. This determination ensures the operational use of the 
BRD candidate in the shrimp fishery will, on average, provide a 
level of bycatch reduction that meets the established bycatch 
reduction criterion. Interested parties may obtain details regarding 
the hypothesis testing procedure to be used by contacting the 
Harvesting Technology Branch, Mississippi Laboratories, Pascagoula 
Facility, 3209 Frederic Street, Pascagoula, MS 39568 1207; phone 
(228) 762 4591. Following a favorable determination of the 
certification analysis, the RA will certify the BRD (with any 
appropriate conditions as indicated by test results) and add the BRD 
to the list of certified BRDs in the Federal Register through 
appropriate rulemaking procedures.
    In addition, based on the data provided, the RA may 
provisionally certify a BRD candidate through appropriate rulemaking 
procedures based on the following criterion:
    There is at least a 50-percent probability that the true 
reduction rate of the BRD candidate is no more than 5 percent less 
than the bycatch reduction criterion (i.e., the BRD candidate 
demonstrates a best point estimate [sample mean] within 5 percent of 
the certification criterion).
    A provisional certification will be effective for 2 years from 
the date of publication in the Federal Register of a determination 
of provisional certification. This time period will allow additional 
wide scale industry evaluation of the BRD candidate, during which 
additional effort would be made to improve the efficiency of the BRD 
to meet the certification criterion.
    III. 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. If the

[[Page 58045]]

additional information is not provided within 60 days, the 
application will be deemed abandoned. If the RA subsequently 
certifies the BRD, the RA will announce the certification in the 
Federal Register.
IV. Decertification of BRDs
    The RA will decertify a BRD whenever NMFS determines a BRD no 
longer satisfies the bycatch reduction criterion. Before determining 
whether to decertify a BRD, the RA will notify the appropriate 
Fishery Management Council in writing, and the public will be 
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.
    A provisionally certified BRD is valid for use in the fishery 
for 2 years from the date of publication of a notice in the Federal 
Register. If no new data are submitted to indicate the efficiency of 
the BRD has been improved, the RA will remove the BRD from the list 
of provisionally certified BRDs.
    V. 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.''
[FR Doc. 07-5061 Filed 10-10-07; 11:09 am]
BILLING CODE 3510-22-S