[Federal Register Volume 73, Number 30 (Wednesday, February 13, 2008)]
[Rules and Regulations]
[Pages 8219-8228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-2679]


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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; Revisions to Bycatch Reduction 
Devices and Testing Protocols

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

ACTION: Final rule.

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SUMMARY: In accordance with the framework 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 issues this final rule to 
consolidate and make modifications to the Bycatch Reduction Device 
Testing Manuals (Manual) for the Gulf of Mexico and the South Atlantic 
regions. This final rule also revises the bycatch reduction device 
(BRD) certification criterion for the western Gulf of Mexico and 
certifies additional BRDs. The intended effect of this final rule is to 
improve bycatch reduction in the shrimp fisheries and better meet the 
requirements of national standard 9.

DATES: This final rule is effective March 14, 2008.

ADDRESSES: Copies of the Final Regulatory Flexibility Analysis (FRFA) 
and the consolidated and revised Bycatch Reduction Device Testing 
Manual 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 final 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 (Gulf) 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).
    On October 12, 2007, NMFS published the proposed rule to revise the 
bycatch reduction device testing protocols for the Gulf and South 
Atlantic regions, revise the BRD certification criterion for the 
western Gulf, and certify additional BRDs (72 FR 58031). Public comment 
on the proposed rule was requested through November 13, 2007. The 
rationale for the measures contained in this final rule is provided in 
the preamble to the proposed rule and is not repeated here.

Comments and Responses

    The following is a summary of the comments NMFS received on the 
proposed rule and NMFS' respective responses. Three comment letters 
were received during the comment period. In addition, a non-
governmental organization submitted comments signed by 1,266 
individuals in support of the proposed action.
    Comment 1: NMFS should implement the proposed changes as part of a 
comprehensive plan to address the significant amount of bycatch 
associated with this fishery and help end overfishing and rebuild the 
red snapper stock.
    Response: This rulemaking is part of a comprehensive plan 
addressing bycatch in the shrimp fishery and overfishing of the red 
snapper resource. This rulemaking to provide additional BRDs to the 
fishery will support additional actions taken by the GMFMC and NMFS. In 
2006, the GMFMC recommended, and NMFS implemented, an individual 
fishing quota (IFQ) for the commercial Gulf red snapper fishery; in 
general, IFQs tend to help reduce fishing mortality. To better control 
overall effort in the shrimp fishery, the GMFMC recommended, and NMFS 
implemented, a moratorium on the issuance of Federal shrimp vessel 
permits. Approximately 2,000 vessels qualified for a moratorium permit; 
this is a substantial reduction from the number of vessels 
participating in the fishery in the past. In addition, the GMFMC 
recommended, and NMFS is currently considering several actions to end 
overfishing of red snapper by 2010 and rebuild the stock by 2032. The 
recommended actions include a substantial reduction in the total 
allowable catch for the directed commercial and recreational red 
snapper fishery, harvesting restrictions to restrain the recreational 
fishery to its quota, and possible time-area closures for the shrimp 
fishery to reduce bycatch mortality on juvenile red snapper.
    Comment 2: The proposed changes to increase flexibility in the 
field testing procedures for experimental BRDs should substantially 
improve the practicability of the testing criteria and procedures that 
currently exist. Many of the changes will better allow research to be 
adapted to the real-world practical realities of shrimp trawling and, 
as a consequence, will encourage more fishermen to participate in 
testing new BRD designs and configurations.
    Response: The procedures prescribed for testing BRDs in the field 
were rigorous in an attempt to reduce the statistical uncertainty of 
the results. However, these rigorous field sampling procedures and the 
inflexible statistical procedures hindered the successful certification 
of several BRD designs that showed promise at reducing substantial 
amounts of bycatch. This discourages innovative developments to improve 
BRDs.
    Comment 3: Replacing the current tow time restrictions with a more 
realistic requirement for such adjustments to be reasonable will allow 
fishermen to adapt to local fishing conditions and successfully 
complete a test on an experimental BRD. However, the proposed rule 
indicated any tow time changes made during a field test would need to 
be approved by the Regional Administrator (RA) at the conclusion of the 
test, and the changes may be disapproved. There should be a more 
deliberate process for the applicant and NMFS to resolve what the 
acceptable limits will be on tow time adjustments. This should be done 
on a case-by-case basis before the testing begins and as part of the 
initial design

[[Page 8220]]

of the operations plan. This will avoid the situation of after-the-fact 
rejections of the tests by the RA and the resulting wasted time and 
resources.
    Response: It is the responsibility of the applicant to make logical 
and reasonable proposals for tow times in the research plan submitted 
to the RA requesting a Letter of Authorization to conduct a test on an 
experimental BRD. The research plan should also include a 
``contingency'' plan if any of the primary procedures have to be 
changed during a test. Changes to the tow time made during a test 
should follow a similar logical and reasonable rationale. Even under 
the best pre-planned event, there may be a need to make such a change 
during a test. For example, the total catch taken during a tow may be 
greater than what was anticipated in the applicant's proposal. Under 
such conditions, shorter tow times would produce manageable quantities 
of catch for sampling. Under the new procedures, when the final test 
results are submitted to NMFS for review, the applicant would simply 
need to document the need for such a change, and provide a good 
rationale for such change. The rationale for the change would be 
reviewed by the RA, in consultation with Southeast Fisheries Science 
Center staff, on a case-by-case basis.
    Comment 4: The current requirement to rotate gear between the port 
and starboard sides every four to six tows (Gulf) or daily (South 
Atlantic) to eliminate net or side bias is highly impracticable and has 
presented a serious obstacle to participation in the testing program. 
The proposed change would allow the applicant to propose an acceptable 
rotational schedule that still ensures equal numbers of tows will be 
conducted with the BRD candidate on both sides. In the case of a quad-
rig (4-net) vessel, NMFS should additionally allow the applicant to use 
the candidate BRD in one of the two nets on each side of the vessel, 
simultaneously, as an alternative means to eliminate bias that might 
result from testing on just one side of the vessel. This will help 
eliminate the numerous practical difficulties associated with rotating 
gear.
    Response: BRD testing is conducted by comparing the differences in 
the catch and bycatch of two nets towed simultaneously by a single 
vessel, where one net contains an experimental BRD, the other net has 
no 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. 
In reality, no two nets will have identical fishing efficiencies, nor 
will each net encounter exactly the same number of each species during 
a tow. Therefore, the paired tests will always have some, albeit minor, 
bias between nets. The requirement to rotate the experimental BRD from 
one net to another on a regular basis is intended to negate this bias. 
Additionally, there may be some differences in the catch between 
outboard and inboard nets in a quad-rig system, especially for the 
inboard net located behind the try net. Comparisons of the catch of an 
inboard net to the catch of an outboard net adds another variable for 
consideration. For this reason, to make the paired comparison as 
balanced as possible, the procedure has always designated the two 
outboard nets be used as experimental and control nets. Nevertheless, 
NMFS does not automatically exclude the proposed concept to place an 
experimental BRD in a net on both sides of the vessel, and compare the 
catch of those nets against the catch of the other two nets that do not 
contain a BRD. The revisions to the testing procedures are intended to 
provide the applicant with the flexibility to make a reasonable 
proposal for a scientifically and statistically valid experiment.

Classification

    The Administrator, Southeast Region, NMFS, determined that this 
rule is necessary for the conservation and management of the shrimp 
fisheries in the Gulf and the South Atlantic regions and is consistent 
with the Magnuson-Stevens Act and other applicable laws.
    This final rule has been determined to be significant for purposes 
of Executive Order 12866.
    A FRFA was prepared. The FRFA incorporates the IRFA, a summary of 
the significant issues raised by the public comments in response to the 
IRFA, and NMFS responses to those comments, and a summary of the 
analyses completed to support the action. A copy of this analysis is 
available from NMFS (see ADDRESSES).
    This final rule will modify the procedures for field testing BRD 
candidates for use in the Gulf and South Atlantic EEZ commercial shrimp 
fisheries, will modify the bycatch reduction criterion for certifying 
BRDs for use in the penaeid shrimp fishery in the Gulf EEZ west of Cape 
San Blas, Florida (western Gulf), and certify new BRDs for the 
fisheries.
    The purpose of this final 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 significant issues were raised by public comments in response to 
the IRFA. Therefore, no changes were made in the final rule as a result 
of such comments.
    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. In 
addition to being potential testing applicants, Gulf shrimp vessels are 
expected to be indirectly impacted by the modification to the bycatch 
reduction criterion. 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 
NMFS, the Texas Parks and Wildlife Department, the Florida Department 
of Environmental Protection, Texas A&M University, the University of 
Georgia, the Gulf and South Atlantic Fisheries Foundation, Inc., other 
institutions, and owners of shrimp vessels.
    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. Based on the number of permits issued and 
number of applications being processed as of November 8, 2007, 
approximately 2,000 vessels are expected to be issued moratorium 
permits.
    An evaluation of revenue distribution within the Gulf EEZ 
commercial shrimp fleet by vessel size indicates substantial 
differences in yearly average revenues between large (at least 60 ft 
(18.3 m) in length) and small vessels. 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

[[Page 8221]]

$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 most of 
their physical attributes (e.g., they use smaller crews, fewer and 
smaller nets, have less engine horsepower and fuel capacity). Small 
vessels are also older on average. Large vessels tend to be steel-
hulled, whereas 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 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 
(net revenues or total fixed and variable costs) 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).
    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 BRD testing cannot 
be determined with any certainty, based on past applicants, BRD testing 
is expected to be undertaken by NMFS, the Texas Parks and Wildlife 
Department, the Florida Department of Environmental Protection, Texas 
A&M University, the University of Georgia, the Gulf and South Atlantic 
Fisheries Foundation, Inc., other institutions, and owners of shrimp 
vessels. The 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, are similarly classified as large 
entities. Any private college or university, or non-profit organization 
that might apply for the BRD testing process is determined for the 
purpose of this analysis to be a small entity because private 
educational institutions and small non-profit organizations are 
generally understood to be smaller in terms of student population, 
staff, and operational budgets than public institutions. Based on the 
maximum annual revenue information for Gulf and South Atlantic 
commercial shrimping operations, vessels that may participate in the 
certification program are determined to be small business entities for 
the purpose of this analysis. It is unknown what portion of the 
estimated maximum 24 entities expected to apply for the certification 
program the first year, and fewer entities in subsequent years, would 
be small or large entities.
    All entities that receive the Gulf EEZ commercial shrimp fishery 
moratorium permit may be indirectly affected by the Gulf bycatch 
reduction criterion. Based on the maximum revenue information for Gulf 
EEZ commercial shrimping operations, all such vessels are determined, 
for the purpose of this analysis, to be small business entities.
    The measures in this final rule do not affect the reporting or 
record-keeping requirements for shrimp vessels. This final rule only 
modifies the performance standards used in BRD certification and does 
not require new record or report preparation.
    The outcome of ``significant economic impact'' can be ascertained 
by examining two issues: disproportionality and profitability.
    The disproportionality question is: do the final regulations place 
a substantial number of small entities at a significant competitive 
disadvantage to large entities? Revision to the Manual is not expected 
to result in any direct or indirect adverse economic impacts on 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 does not 
apply to this component of the final rule.
    Similarly, the change to the Gulf EEZ commercial shrimp fishery 
bycatch reduction criterion will 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 is 
expected to generate indirect impacts on vessels in this fishery as a 
result of future certification, provisional certification, or 
decertification actions. All of these vessels have been determined to 
be small business entities. Thus, the issue of disproportionality does 
not apply to this component of the final rule.
    The certifications and provisional certifications will affect all 
vessels in the Gulf EEZ commercial shrimp fishery, as well as some 
vessels in the South Atlantic EEZ commercial shrimp fishery. Because 
all of these entities are determined to be small entities, the issue of 
disproportionality does not apply to this component of the final rule.
    The profitability question is: do the regulations significantly 
reduce profit for a substantial number of small entities?
    The revision of the Manual will not directly affect fishery 
participation or harvest because it merely establishes procedures under 
which research and gear development may proceed. The bycatch reduction 
criterion for the Gulf EEZ commercial shrimp fishery will also not 
result in any direct adverse economic impacts on fishery participants 
because it is an administrative action.
    In addition to the Modified Jones-Davis BRD, the bycatch reduction 
criterion will allow for the extended funnel BRD to be provisionally 
certified for use in the Gulf EEZ shrimp fishery, and the composite 
panel BRD to be provisionally certified for use in the Gulf and South 
Atlantic EEZ shrimp fisheries. However, these three BRDs are not 
presently certified for use by the fleet in the western Gulf, are more 
costly to purchase, and produce greater shrimp loss, on average, than 
the predominantly

[[Page 8222]]

used fisheye-type BRDs. As such, no shrimp vessel owners are expected 
to switch from their current BRDs to these BRDs and no direct impacts 
are expected to result from the certification or provisional 
certification of these BRDs.
    The bycatch reduction criterion will, however, result in 
decertification of some currently used BRDs through subsequent 
regulatory action. Decertification of currently used BRDs will require 
the use of alternative certified or provisionally certified BRDs, with 
associated re-gearing costs. Among the BRDs currently in use, the 
maximum first-year re-gearing cost that could be incurred as a result 
of future decertification would be that associated with the Jones-Davis 
BRD, which is the most expensive remaining certified BRD, with an 
estimated cost of $425 per BRD, and would range from $2,550 per vessel 
for six BRDs to $4,250 per vessel for 10 BRDs, or between 2.3 percent 
and 3.8 percent of an average vessel's annual revenues. Lowest BRD 
replacement costs would be associated with a Modified Jones-Davis BRD, 
with an estimated cost of $300 per BRD, or $1,800 to $3,000 per vessel. 
Not all vessels would be required to acquire new BRDs, however, since 
not all current BRDs would be decertified, and the cheapest and 
currently most commonly used BRD, a fisheye-type BRD, could continue to 
be used in a different configuration. Although potential resultant 
shrimp loss would have to be figured into the decision, some fishermen 
may elect to retain but move the fisheye BRD as opposed to purchasing a 
different BRD, thus incurring no replacement costs for the gear itself.
    Since different BRDs produce different rates of shrimp retention, 
the decision of which BRD to use impacts gross revenues as well as 
operational and gear costs. Depending upon the BRD type currently used 
and the BRD type that might be selected as a replacement, reductions in 
average annual gross revenues of up to 3 percent have been projected 
for small vessels and 2 percent for many large vessels. Actual 
performance would vary, however, as individual vessels adopt the BRD 
that best meets their skill and fishing behavior in order to minimize 
costs and maximize revenues. All associated costs will directly accrue, 
however, only to a subsequent rule and not to the current action.
    This final rule will certify the Modified Jones-Davis BRD for the 
Gulf and South Atlantic EEZ shrimp fisheries, provisionally certify the 
extended funnel BRD to be used in the Gulf EEZ shrimp fishery, and 
provisionally certify the composite panel BRD to be used in the Gulf 
and South Atlantic EEZ shrimp fisheries. No direct adverse economic 
impacts will accrue to fishermen in either the Gulf or South Atlantic 
EEZ shrimp fisheries as a result of these changes because no vessels 
will be required to use these BRDs. The certification or provisional 
certification of these BRDs will increase the options available to 
vessels. Use of these BRDs will be at the discretion of individual 
fishermen and adoption of the gear would only be expected to occur 
where it was expected to result in improved economic outcomes.
    Two alternatives, the final rule 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 change in the BRD bycatch reduction criterion. Two alternatives 
contained multiple options, resulting in eight 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, will occur through subsequent action.
    The first alternative to the final bycatch reduction criterion, the 
status quo, is a specific juvenile red snapper fishing mortality 
reduction. Maintaining the status quo will result in the 
decertification of all currently certified BRDs except the Jones-Davis 
BRD for use in the Gulf. Current data indicate these BRDs do not meet 
the status quo bycatch reduction criterion. Decertification of these 
BRDs under the status quo would induce greater industry-wide 
replacement costs than the bycatch reduction criterion of this final 
rule because the final rule will allow more BRD options than the single 
Jones-Davis BRD.
    The second alternative to the final bycatch reduction criterion 
would continue to base the bycatch reduction target on juvenile red 
snapper, similar to the status quo, but would consider three different 
minimum thresholds in catch-per-unit-effort (CPUE). The two lower 
minimum thresholds, 12 percent and 20 percent reductions in juvenile 
red snapper CPUE, would be expected to allow continued use of the 
fisheye BRD, resulting in no direct or indirect adverse economic 
impacts. Neither threshold, however, would meet the objective of the 
Magnuson-Stevens Act requirement that bycatch be reduced to the extent 
practicable. The final rule alternative has been identified to improve 
overall finfish bycatch reduction including juvenile red snapper at 
rates higher than specified by these alternatives. The highest red 
snapper bycatch reduction minimum threshold, a 30 percent reduction in 
juvenile red snapper CPUE, would be expected to result in the same 
effects as the status quo, because it has not been demonstrated this 
goal is achievable, resulting in greater indirect adverse economic 
impacts than the bycatch reduction criterion of this final rule.
    The third alternative to the final bycatch reduction criterion 
would base the bycatch reduction criterion on all finfish species and 
considered four minimum thresholds, ranging from 10 to 40 percent. The 
final rule will establish a 30-percent finfish bycatch reduction 
minimum threshold. The two lower finfish bycatch reduction minimum 
thresholds, 10 percent and 20 percent, would be expected to allow 
continued use of fisheye BRDs, resulting in no direct or indirect 
adverse economic impacts. However, neither threshold would meet the 
Magnuson-Stevens Act requirement of achieving bycatch reduction to the 
extent practicable because several available BRDs are already achieving 
a 30-percent reduction in finfish bycatch. The highest finfish bycatch 
reduction minimum 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, resulting in greater indirect adverse economic impacts than the 
bycatch reduction criterion of this final rule. This alternative would 
also set an excessive standard that few BRD designs could achieve.
    Copies of the FRFA are available from NMFS (see ADDRESSES).
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare an FRFA, the agency shall 
publish one or more guides to assist small entities in complying with 
the rule, and shall designate such publications as ``small entity 
compliance guides.'' As part of this rulemaking process, NMFS prepared 
a fishery bulletin, which also serves as a small entity compliance 
guide. The fishery bulletin will be sent to all vessel permit holders 
in the Gulf and South Atlantic shrimp fisheries.
    This final rule contains approved collection-of-information 
requirements--namely, the BRD certification process, consisting of 
applications for pre-

[[Page 8223]]

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 222 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: February 7, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.

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

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

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

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

0
2. In Sec.  622.41, 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 placed 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 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

[[Page 8224]]

to address the deficiencies resulting in the denial. To be certified 
for use in the fishery, the BRD candidate must successfully demonstrate 
a 30 percent reduction in total weight of finfish bycatch. In addition, 
the BRD candidate must satisfy the following conditions: There is at 
least a 50-percent probability the true reduction rate of the BRD 
candidate meets the bycatch reduction criterion and there is no more 
than a 10-percent probability the true reduction rate of the BRD 
candidate is more than 5 percentage points less than the bycatch 
reduction criterion. If a BRD meets both conditions, 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 
percentage points less than the bycatch reduction criterion, i.e. 25 
percent reduction in total weight of finfish bycatch. 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 February 16, 2010.
    (B) Composite panel -Gulf EEZ and South Atlantic EEZ; through 
February 16, 2010.
* * * * *

0
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 rectangular piece of 1 5/8-inch (4.1-cm) stretch mesh 
number 30 nylon with dimensions of 39 \1/2\ meshes by 150 meshes. A 
tube is formed from the extension webbing by sewing the 39 \1/2\-mesh-
sides 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 in2 (4,097 cm2). 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 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) 3 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

[[Page 8225]]

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 rectangular piece of 1 \1/2\-inch to 1 5/8-inch (3.8-cm 
to 4.1-cm) stretch mesh number 30 nylon with dimensions of 24 \1/2\ 
meshes by 150 to 160 meshes. A tube is formed from the extension 
webbing piece by sewing the 24 \1/2\-mesh sides 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 \1/2\-inch to 1 5/8-inch (3.8-cm to 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. The depth of the square mesh 
layer must be no more than 2 inches (5.1 cm) less than the 20 mesh side 
of the inner polyethylene layer when stretched taught. 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 
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 the 
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 selvaged 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.
    The following 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 or 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 
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.,

[[Page 8226]]

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 or 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 or 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) For tests conducted on twin-rig vessels, 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 or 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 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

[[Page 8227]]

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 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 conditions:
    (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 percentage points 
less than the bycatch reduction criterion.
    To be certified for use in the fishery, the BRD candidate will 
have to satisfy both conditions. The first condition ensures that 
the observed reduction rate of the BRD candidate has an acceptable 
level of certainty that it meets the bycatch reduction criterion. 
The second condition ensures the BRD candidate demonstrates 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 condition:
    There is at least a 50-percent probability that the true 
reduction rate of the BRD candidate is no more than 5 percentage 
points less than the bycatch reduction criterion (i.e., the BRD 
candidate demonstrates a best point estimate [sample mean] within 5 
percentage points of the bycatch reduction 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

[[Page 8228]]

provide the additional information within 60 days from receipt of 
such notification. If the 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 no 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. E8-2679 Filed 2-12-08; 8:45 am]
BILLING CODE 3510-22-S