[Federal Register Volume 81, Number 189 (Thursday, September 29, 2016)]
[Proposed Rules]
[Pages 66912-66918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23600]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 160815740-6740-01]
RIN 0648-BG28


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

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 procedure for adjusting 
management measures of the Fishery Management Plan for the Shrimp 
Fishery of the Gulf of Mexico (Gulf FMP), NMFS proposes to make 
administrative revisions to the Bycatch Reduction Device Testing Manual 
(BRD Manual). The BRD Manual contains procedures for the testing and 
certification of BRDs for use in shrimp trawls in the exclusive 
economic zone (EEZ) in the Gulf of Mexico (Gulf) and South Atlantic. 
The proposed changes to the BRD Manual remove outdated or obsolete data 
collection forms currently appended to the BRD Manual and revise the 
text to make several procedural steps outlined in the BRD Manual 
clearer and easier to understand. The intended effect of these 
revisions is to increase understanding of the BRD certification 
protocols.

DATES: Comments must be received by October 14, 2016.

ADDRESSES: You may submit comments on the proposed rule, identified by 
NOAA-NMFS-2016-0109, by either of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0109, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.

[[Page 66913]]

     Mail: Submit written comments to Susan Gerhart, NMFS 
Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 
33701.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Requests for copies of the BRD Manual should be sent to the 
NMFS Southeast Regional Office, 263 13th Avenue South, St. Petersburg, 
FL 33701.

FOR FURTHER INFORMATION CONTACT: Susan Gerhart, NMFS Southeast Regional 
Office, telephone: 727-824-5305, email: [email protected].

SUPPLEMENTARY INFORMATION: The shrimp fishery in the Gulf EEZ is 
managed under the Gulf FMP. The Gulf FMP was prepared by the Gulf of 
Mexico Fishery Management Council (Gulf Council) and is implemented by 
NMFS under the authority of the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 
622.
    The shrimp fishery in the South Atlantic EEZ is managed under the 
FMP for the Shrimp Fishery of the South Atlantic Region (South Atlantic 
FMP). The South Atlantic FMP was prepared by the South Atlantic Fishery 
Management Council (South Atlantic Council) and is implemented by NMFS 
under the authority of the Magnuson-Stevens Act by regulations at 50 
CFR part 622.
    Initially, the South Atlantic and Gulf Councils developed separate 
amendments to their respective FMPs to require the use of certified 
BRDs, and the South Atlantic Council developed their own BRD Manual, in 
cooperation with NMFS. The South Atlantic Council established these 
requirements through Amendment 2 to the South Atlantic FMP in 1997 (62 
FR 18536, April 16, 1997). Subsequently, the Gulf Council required, 
with limited exceptions, the use of certified BRDs through Amendment 9 
to the Gulf FMP (63 FR 18139, April 14, 1998). Amendment 9 specified 
that NMFS would develop a testing protocol for examining the bycatch 
reduction performance of additional BRD designs. Regulations 
implementing this initial testing protocol were effective July 13, 1999 
(64 FR 37690, July 13, 1999), except for a collection-of-information 
requirement, which became effective September 29, 1999 (64 FR 52427, 
September 29, 1999). In 2005, in Amendment 6 to the South Atlantic FMP, 
the South Atlantic Council transferred authority to NMFS to maintain 
and revise the BRD Manual, and established a certification criterion 
identical to the Gulf Council's eastern Gulf criterion (70 FR 73383, 
December 12, 2005). In 2008, NMFS combined the separate BRD Manuals, 
and established a single procedural process for testing BRDs, and a 
single BRD certification criterion for both the Gulf and South Atlantic 
(73 FR 8219, February 13, 2008). The proposed administrative changes 
would not change the existing BRD certification criterion.
    When the two BRD Manuals were initially developed, no mandatory 
observer programs existed for Gulf and South Atlantic Council-managed 
species, thus there was no officially established set of data 
collection forms. To provide BRD testing applicants with a standardized 
reporting method, forms and instructions developed and used by NMFS and 
other researchers during a 1990s Congressionally-mandated Shrimp Trawl 
Bycatch Research Program were provided with the BRD Manual as 
Appendices A-I. This family of forms was officially submitted for 
review and approval under the Paperwork Reduction Act and assigned a 
control number by the Office of Management and Budget (OMB), OMB-0648-
0345. Subsequently, mandatory observer programs were established by 
NMFS for the reef fish fishery and the shrimp fishery in the Gulf, and 
the various fisheries managed by NMFS' Highly Migratory Species 
Division. NMFS established a package of observer data collection forms 
to cover all of these programs with an assigned control number of OMB-
0648-0593, and incorporated the family of forms in a standardized 
Observer Training Manual, including the BRD testing and certification 
family of forms.
    Over time, the various data collection forms used by NMFS have been 
revised or discarded, making many of the forms in the BRD testing 
family of forms obsolete (OMB-0648-0345). Currently, only three of the 
eight original BRD testing data forms in the Observer Training Manual 
are specific to BRD testing. NMFS intends to incorporate those forms 
into the OMB-0648-0593 family of forms, and has already discontinued 
the OMB-0648-0345 family of forms. Therefore, the forms need to be 
removed as appendices to the BRD Manual and text revised within the BRD 
Manual to remove references to those forms.
    NMFS has also revised some text and instructions in the BRD Manual 
to make the manual clearer and easier to understand. For example, where 
forms were referenced, the instructions only stated that ``The 
applicant should submit a completed application form (Appendix A)''; 
given this action would remove that form from the BRD Manual, the 
instructions have been revised to reflect the information that the 
applicant must submit. Other revisions to the BRD Manual include 
increased consistency of terms; for example, ``test'' and ``trawl'' 
were used interchangeably, as were ``trawl'' and ``net.''
    These proposed changes to the BRD Manual were presented to the Gulf 
and South Atlantic Councils for their consideration and no substantive 
comments were received from either Council regarding these 
administrative changes.
    These proposed changes to management measures would not add to or 
change any existing Federal regulations. Therefore, no codified text is 
associated with these proposed changes to management measures.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the Gulf and South Atlantic FMPs, other provisions of 
the Magnuson-Stevens Act, and other applicable laws, subject to further 
consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this proposed change to management measures, 
if implemented, would not have a significant economic impact on a 
substantial number of small entities. The factual basis for this 
determination is as follows:
    The purpose of this proposed rule is to make non-regulatory 
administrative revisions to the BRD Manual to simplify test reporting 
procedures and make the procedural steps outlined in the BRD Manual 
clearer and easier to understand. The Magnuson-Stevens Act provides the 
statutory basis for this proposed rule.
    This proposed rule, if implemented, would directly affect entities 
that apply

[[Page 66914]]

for and participate in BRD testing. The primary entities expected to 
apply for the BRD testing are state government, academic, and not-for-
profit entities. Independent commercial shrimping businesses in either 
the Gulf or South Atlantic may also be included among applicants. NMFS 
has not identified any other small entities that would be expected to 
be directly affected by this proposed change to management measures.
    The 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. For 
Regulatory Flexibility Act purposes only, NMFS has established a small 
business size standard for businesses, including their affiliates, 
whose primary industry is commercial fishing (see 50 CFR 200.2). A 
business primarily engaged in commercial fishing (NAICS code 11411) is 
classified as a small business if it is independently owned and 
operated, is not dominant in its field of operation (including its 
affiliates), and has combined annual receipts not in excess of $11 
million for all its affiliated operations worldwide.
    Over the period 2011-2015, a total of 5 separate entities applied 
for BRD testing. These entities were NMFS, the Gulf and South Atlantic 
Fisheries Foundation (Foundation), the University of Mississippi, Texas 
A&M University, and one commercial shrimp fisherman. Individual 
applications are required for each BRD tested and a total of 26 
applications were submitted by these 5 entities over this period. The 
most applications in any year during this period was 10 (2011), 
submitted by 3 applicants, and the fewest applications was 1 (2015). 
NMFS submitted the most applications, 10, followed by the Foundation 
with 9. The University of Mississippi submitted three applications, and 
both Texas A&M University (2013) and the commercial shrimp fisherman 
(2015) submitted a single application.
    In addition to these entities, previous applicants have included 
the Texas Parks and Wildlife Department, the Florida Department of 
Environmental Protection, and the University of Georgia. The respective 
state agencies are extensions of their state governments and, as such, 
exceed the SBA population thresholds for small government entities. 
Similarly, the public academic institutions are extensions of the 
respective state government educational systems and, therefore, are 
similarly classified as large entities. Although no private colleges or 
universities have applied for BRD testing, these institutions are 
generally understood to be smaller than public institutions in terms of 
student population, staff, and operational budgets. As a result, any 
private educational institutions that might apply for BRD testing would 
be expected to be a small entity. Any commercial shrimp fisherman that 
might apply for BRD testing would do so from the perspective of 
research and not commercial fishing. However, as a commercial shrimp 
fisherman, this entity would be expected to primarily engage in 
commercial fishing and not research. Thus, for these entities, the 
commercial fishing revenue threshold would apply. From 2011 through 
2013, the greatest average annual revenue for a single commercial 
shrimp fishing business in the Gulf was approximately $2.48 million. 
More recent information is not available, nor is similar information 
available on commercial shrimp fishermen in the South Atlantic. 
Nevertheless, because of the low maximum revenue total in the Gulf, it 
is assumed that any commercial shrimp fisherman that would apply for 
BRD testing would be a small business entity. In summary, this proposed 
change to management measures would be expected to directly affect a 
few small entities, such as not-for-profit institutions, commercial 
shrimp businesses, and private colleges or universities.
    The proposed revisions to the BRD Manual would not directly affect 
fishery participation, harvest, or the business operation of any small 
entity. As discussed in the Summary and Supplementary Information 
sections of this proposed change to management measures, the proposed 
changes are administrative in nature. This proposed change to 
management measures would only eliminate test reporting forms in the 
BRD Manual that are either obsolete or available elsewhere (NMFS 
standardized Observer Training Manual), revise text and instructions 
that reference these forms, list the information needed to be reported 
for BRD testing instead of the specific forms, and improve the 
consistency of terms used in the BRD Manual. These proposed changes are 
purely administrative. They would not be expected to affect actual BRD 
testing or the costs associated with such, but would be expected to 
improve understanding of the testing process and requirements, and 
facilitate better circumstances under which BRD research and gear 
development may proceed. Although subsequent BRD testing could result 
in future changes in allowable BRDs, the use of which could have direct 
economic consequences, these would be indirect effects of this proposed 
rule and outside the scope of the Regulatory Flexibility Act.
    Based on the discussion above, NMFS determines that this proposed 
change to management measures, if implemented, would not have a 
significant adverse economic effect on a substantial number of small 
entities. As a result, an initial regulatory flexibility analysis is 
not required and none has been prepared.
    The BRD Manual published as an appendix to a final rule published 
in the Federal Register on February 13, 2008 (73 FR 8219, February 13, 
2008), is revised to read as follows.

    Note: The following appendix will publish in the Federal 
Register but will not appear in the Code of Federal Regulations. See 
the contacts under ADDRESSES to obtain the complete BRD Manual.

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 (EEZ) 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 bycatch reduction device 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 a test.
    Experimental trawl means the trawl that is equipped with the BRD 
candidate during a test.
    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.
    Gear Test Authorization (GTA) means a document signed by the RA 
that specifically exempts a person/vessel from Federal regulations 
requiring the use of BRDs in Federal waters. This GTA must be issued 
prior to conducting any tests on BRD candidates in Federal waters.

[[Page 66915]]

    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 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 
that 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.
    Shrimp trawler means any vessel that is equipped with one or 
more trawl nets where the 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 occurred during the tow that 
would impact or influence the fishing efficiency (catch) of one or 
both nets.
    Tow time means the total time (hours and minutes) an individual 
trawl was fished (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, although in most instances, ``trawl'' is used to 
reflect the entire fishing rig (e.g., doors, tickler chain, net, 
turtle excluder device, etc.), whereas a ``net'' is used to reflect 
a component of that fishing rig.
    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 (BRD Manual) 
establishes a standardized process for evaluating whether bycatch 
reduction device (BRD) candidates meet the established bycatch 
reduction criterion. BRDs that meet the criterion can be certified for 
use in the EEZ by the southeastern shrimp fishery. Requirements for 
BRDs used in shrimp trawls in the Gulf of Mexico and South Atlantic can 
be found in 50 CFR part 622.
    The requirement to use BRDs in state waters varies by state. 
Persons wishing to conduct BRD candidate tests exclusively in state 
waters do not need to apply to the National Marine Fisheries Service 
(NOAA Fisheries) for authorization to conduct these tests but should 
contact the appropriate state officials for authorizations. However, 
for NOAA Fisheries to certify a BRD candidate for use in Federal 
waters, tests conducted in state waters must meet the criteria for the 
operations plan and data collection procedures established in this 
manual.

II. BRD Candidate Tests

A. Application

    Persons interested in evaluating the effectiveness of a BRD 
candidate to reduce finfish from a shrimp trawl must apply for, 
receive, and have on board the approved vessel(s) during the test, a 
Gear Test Authorization (GTA) from the NOAA Fisheries Southeast 
Regional Office Regional Administrator (RA). To receive a GTA, the 
applicant must submit the following documentation to the RA: (1) Name, 
address, and contact information of the applicant; (2) a list of 
vessels to be used during the sampling program, including the vessels' 
U.S. Coast Guard documentation numbers or state registration numbers; 
(3) name, address, and contact information of the vessel owners and/or 
vessel operators; (4) a brief statement of the purpose and goal of the 
activity for which the GTA is requested; (5) 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; (6) an 8.5 
inch x 11 inch (21.6 cm x 27.9 cm) diagram drawn to scale of the BRD 
candidate design; (7) 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; and (8) a description of 
the mechanism by which the BRD candidate is expected to exclude 
finfish.
    An applicant requesting an GTA to test an unapproved turtle 
excluder device (TED) as a BRD (including modifications to a certified 
TED where the modifications would make the configuration of the TED 
illegal) 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 NOAA Fisheries Southeast 
Regional Office for further information. The GTA 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 GTA, 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 a GTA 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 a GTA 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 GTA. All nets 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 GTA, and experimental TED authorization if 
applicable, must be on board the vessel(s) while the test is being 
conducted. The term of the GTA will be 60 days; should circumstances 
require a longer test period, the applicant may request 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

[[Page 66916]]

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. 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:
     The primary assumption in assessing the bycatch reduction 
effectiveness of a 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 NOAA Fisheries, Harvesting 
Technology Branch, Mississippi Laboratories, Pascagoula Facility, 3209 
Frederic Street, Pascagoula, MS 39567; phone 601-762-4591.
     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.
     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.''
     For tests conducted on twin-rig vessels (one net on the 
port side and one net on the starboard side), biases that might result 
from the use of a try net should be minimized. Total fishing times for 
a try net must be a consistent percentage of the total tow time during 
each tow made in the test.
     To incorporate any potential 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.
     Mandatory data to be collected during a test includes: (1) 
Detailed vessel and gear specifications and (2) pertinent information 
concerning the location, duration, and catch from individual tows as 
set forth in forms available from the Science and Research Director 
(SRD) of the Southeast Fisheries Science Center. Applicants should 
contact the NOAA Fisheries, Galveston Laboratory, 4700 Avenue U, 
Galveston, TX 77551; phone 409-766-3500.
     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), and the weight of the 
total shrimp catch (i.e., brown, white, pink, rock, or other shrimp by 
species) in each test net.
     To determine the total finfish catch in each test net, two 
procedures may be used under different conditions. If the total catch 
in a net does not fill one standard 1-bushel (ca. 10 gal or 30 L) 
polyethylene shrimp basket (ca. 70 lb [31.8 kg] of catch), but the tow 
is otherwise considered successful, data must be collected on the 
entire catch of the net, and recorded as a ``select'' sample, 
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 gal] (30 L) 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 weight (and 
number as applicable) of finfish in aggregate.
     The forms available from the SRD include record keeping 
opportunities for additional species; collection of this information is 
optional for certification evaluation purposes. However, 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 the bycatch of juvenile 
red snapper. Such data collection would follow the same procedure as 
sampling the total finfish catch.
    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 GTA, 
the RA may consult with evaluation personnel to review the 
acceptability of these proposed alterations.

D. Observer Requirement

    It is the responsibility of the applicant to ensure that a 
qualified observer is on board the vessel during the certification 
tests. Observers may include employees or individuals acting on behalf 
of NOAA Fisheries, state fishery management agencies, universities, or 
private industry. 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

[[Page 66917]]

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: (1) 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; (2) a 
certificate of compliance issued pursuant to 46 CFR 28.710; or (3) 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 test, copies of all completed data forms used during the test, and 
photographs, drawings, and similar material describing the BRD. The 
report must include a description and explanation of any unanticipated 
deviations from the operations plan that occurred during the test. 
These deviations must be described in sufficient detail to allow 
evaluation and oversight personnel selected by NOAA Fisheries to 
determine if 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 effectiveness. 
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 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 NOAA 
Fisheries, Harvesting Technology Branch, Mississippi Laboratories, 
Pascagoula Facility, 3209 Frederic Street, Pascagoula, MS 39567; 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 publish the notice of certification 
in the Federal Register.
    In addition, based on the data provided, if the BRD candidate does 
not meet the bycatch reduction certification criterion in accordance 
with the conditions outlined above, the RA may provisionally certify a 
BRD candidate 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 
certification criterion).
    A provisional certification will be effective for 2 years from the 
date of publication of a notice in the Federal Register announcing this 
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 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 NOAA Fisheries 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(s) in writing, and the public 
will be provided an opportunity to comment on any proposed 
decertification through a publication of a proposed rule in the Federal 
Register with a comment period of not less than 15 days. The RA will 
consider any comments from the affected Council(s) and public, and if 
the RA elects to proceed with decertification of the BRD, the RA will 
publish a final rule in the Federal Register, which would remove the 
BRD from the certified list of 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

[[Page 66918]]

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.

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

    Dated: September 19, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2016-23600 Filed 9-28-16; 8:45 am]
 BILLING CODE 3510-22-P