[Federal Register: October 12, 2007 (Volume 72, Number 197)]
[Proposed Rules]
[Page 58031-58045]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12oc07-15]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 0612243163-7151-01]
RIN 0648-AU59
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Shrimp Fisheries of the Gulf of Mexico and South Atlantic; Revision of
Bycatch Reduction Device Testing Protocols
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: In accordance with the framework procedures for adjusting
management measures specified in regulations implementing the Fishery
Management Plan for the Shrimp Fishery of the Gulf of Mexico (Gulf FMP)
and the Fishery Management Plan for the Shrimp Fishery of the South
Atlantic Region (South Atlantic FMP), NMFS proposes to consolidate and
make modifications to the Bycatch Reduction Device Testing Manuals
(Manual) for the Gulf of Mexico and the South Atlantic regions. This
proposed
[[Page 58032]]
rule would also revise the bycatch reduction device (BRD) certification
criterion for the western Gulf of Mexico and would certify additional
BRDs. The intended effect of this proposed rule is to improve bycatch
reduction in the shrimp fisheries and better meet the requirements of
national standard 9.
DATES: Comments must be received no later than 4:30 p.m., eastern time,
on November 13, 2007.
ADDRESSES: You may submit comments, identified by 0648-AU59, by any one
of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal http://www.regulations.gov.
Fax: 727-824-5308, Attn: Steve Branstetter.
Mail: Steve Branstetter, Southeast Regional Office, NMFS,
263 13th Avenue South, St. Petersburg, FL 33701.
Instructions: All comments received are a part of the public record
and will generally be posted to http://www.regulations.gov without
change. All Personal Identifying Information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not submit Confidential Business Information or
otherwise sensitive or protected information.
NMFS will accept anonymous comments. Attachments to electronic
comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe PDF file formats only.
Copies of the proposed regulatory amendment, which includes an
Environmental Assessment, an Initial Regulatory Flexibility Analysis
(IRFA), a Regulatory Impact Review (RIR), and a Social Impact
Assessment/Fishery Impact Statement, may be obtained from the Gulf of
Mexico Fishery Management Council, 2203 North Lois Avenue, Suite 1100,
Tampa, FL, 33607; phone: 813-348-1630; fax: 813-348-1711; email:
gulfcouncil@gulfcouncil.org.
Copies of the proposed consolidated and revised Bycatch Reduction
Device Testing Manual and the associated IRFA, RIR, and Social Impact
Assessment/Fishery Impact Statement are available from the Southeast
Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701;
phone: 727-824-5305; fax: 727-824-5308.
Comments regarding the approved collection-of-information
requirements contained in this rule should be submitted in writing to
Jason Rueter at the Southeast Regional Office address (above) and to
David Rostker, Office of Management and Budget (OMB), by e-mail at
David_Rostker@omb.eop.gov, or by fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Steve Branstetter, telephone: 727-824-
5305, fax: 727-824-5308, e-mail: Steve.Branstetter@noaa.gov.
SUPPLEMENTARY INFORMATION: The fisheries for shrimp in the exclusive
economic zone (EEZ) of the Gulf of Mexico and the South Atlantic are
managed under the authority of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act) and regulations
at 50 CFR part 622. The regulations implement the Gulf FMP prepared by
the Gulf of Mexico Fishery Management Council (GMFMC) and the South
Atlantic FMP prepared by the South Atlantic Fishery Management Council
(SAFMC).
Background
Regulations implementing Amendment 9 to the Gulf FMP were published
April 14, 1998 (63 FR 18139). The final rule established a requirement,
with limited exceptions, for the use of certified BRDs in shrimp trawls
towed in the Gulf of Mexico EEZ shoreward of the 100-fm (183-m) depth
contour west of 85[deg] 30' W. longitude (western Gulf), the
approximate longitude of Cape San Blas, FL. Regulations implementing
Amendment 9 also required NMFS to develop a Manual for the Gulf of
Mexico outlining testing procedure for examining the bycatch reduction
performance of additional BRD designs. BRDs tested under such a
procedure and determined to reduce bycatch mortality of juvenile red
snapper by a minimum of 44 percent from the average level of mortality
on these age-0 and age-1 groups during the years 1984-1989 would be
certified for use in the western Gulf shrimp trawl fishery. A final
rule implementing the requirements for this testing procedure was
published and became effective July 13, 1999 (64 FR 37690), except for
the collection-of-information requirements which became effective
September 29, 1999 (64 FR 52427).
NMFS had already published similar regulations (62 FR 18536, April
16, 1997), to implement Amendment 2 to the South Atlantic shrimp FMP,
requiring the use of BRDs in the South Atlantic penaeid shrimp fishery.
Amendment 2 established a bycatch reduction certification criterion
based on 40-percent reductions in the number of Spanish mackerel and
weakfish. The final rule implementing Amendment 2 also established a
Manual for the South Atlantic shrimp fishery.
To better address the requirements of national standard 9 of the
Magnuson-Stevens Act, regulations implementing Amendment 10 to the Gulf
FMP (69 FR 1538, January 9, 2004) required BRDs in shrimp trawls fished
in the EEZ east of 85[deg]30' W. longitude (eastern Gulf). To be
certified for use in the EEZ of the eastern Gulf, a BRD has to reduce
finfish bycatch by at least 30 percent, by weight. NMFS established
this new criterion because juvenile red snapper are not common in the
eastern Gulf. Therefore, evaluating the effectiveness of a BRD in the
eastern Gulf, under a red snapper criterion, would not be feasible. A
general finfish reduction, addressing national standard 9, was the more
appropriate measure to establish for this region.
The final rule implementing Amendment 6 the South Atlantic FMP (70
FR 73383, December 12, 2005) transferred authority to the NMFS
Southeast Regional Administrator (RA) to modify the SAFMC's Manual, as
needed, after consultation with the SAFMC. The final rule implementing
Amendment 6 also modified the South Atlantic BRD certification
criterion to match the eastern Gulf criterion of a 30-percent finfish
reduction, and expanded the BRD requirement to include the rock shrimp
fishery.
BRD Certification Criterion
In accordance with the BRD framework procedures of regulations
implementing the Gulf FMP, the proposed rule would modify the existing
BRD certification criterion for the western Gulf to be consistent with
the existing criterion for the eastern gulf and the South Atlantic--a
30-percent reduction in total finfish catch by weight. The existing
criterion, established in Amendment 9, is based on a 1995 stock
assessment model no longer applicable to the revised red snapper
rebuilding target. The 1995 assessment recommended a 50-percent
reduction in fishing mortality on age 0 and age 1 red snapper from the
average mortalities during the 1984 to 1989 period. The model estimated
a fishing mortality rate for the 1984 to 1989 period at 2.06.
Recognizing a 10-percent reduction in effort had occurred in the shrimp
fishery since 1989, NMFS established a target for a 44-percent
reduction from BRDs, which achieved the goal of reducing fishing
mortality to approximately 1.03. The rationale for this action assumed
that such reductions, beginning in 1997, would meet the existing goal
of a 20-percent spawning potential ratio for red snapper by 2019.
[[Page 58033]]
This approach was valid based on the modeling techniques used for
red snapper at the time; however, recent stock assessments used
different models, and the rebuilding target for red snapper has
changed. For example, with changes to the red snapper stock and to the
red snapper and shrimp fisheries, in combination with refined
assessment techniques, the 2005 red snapper stock assessment estimated
fishing mortality on age 0 and age 1 red snapper at 0.74 for the 1984-
1989 time period. This does not mean the 1995 assessment overestimated
fishing mortality, rather that the 2005 assessment utilized updated
information which revised estimates of natural mortality (M). In
running the models with that revised estimate of M, other parameters,
including F, also changed. The 2005 assessment went through a rigorous
SEDAR/peer review process. The fishing mortality rate for juvenile red
snapper attributable to the shrimp fishery still needs substantial
reduction to rebuild the red snapper stock by the new 2032 target;
however, the existing BRD certification criterion of a 44-percent
reduction in fishing mortality rate to a level of 1.03 is no longer
appropriate.
Although the 1995 assessment model could still be used, with a
change in scaling, to develop a revised BRD reduction criterion based
on a reduction in fishing mortality, there are still problems with
using a mortality rate target as the criterion. The annual fishing
mortality rates for juvenile age 0 and age 1 red snapper are dependent
on seasonal recruitment and the quantity of shrimp fishing effort
taking juvenile red snapper. These variables, in turn, affect the
ability of a given BRD to reduce annual fishing mortality to a specific
level. Thus, the overall goal of reducing the annual juvenile red
snapper mortality rate in the shrimp fishery could be achieved from a
high reduction of red snapper by BRDs, or by a lesser reduction of red
snapper by BRDs in combination with an overall reduction in fishing
effort. Under the current certification criterion, based on the
mortality rate for one year compared to previous years, it is not
possible to independently distinguish the contribution of the BRD from
the contribution of overall shrimp effort reductions between the two
time periods.
A more appropriate measure of the efficacy of a BRD to reduce
bycatch is to evaluate the reductions in catch or catch-per-unit-effort
(CPUE) of a species or species group on a real-time basis. Doing so
isolates the contribution by the BRD and removes the interactions of
total shrimping effort and annual fluctuations in recruitment. The
catch rate of a net with a BRD can be directly compared to the catch
rate of a net without a BRD, to give reduction levels at any given
time. Fishing mortality reductions can then be calculated based on the
documented total effort by the fleet and the estimates of recruitment
for any given time frame. This is a more appropriate approach than
attempting to apply mortality rate values for a specific year against a
previous benchmark value, given the fluctuations in recruitment,
effort, and CPUE values which affect estimates of annual mortality
rates attributable to the shrimp fishery.
In addition, because of the existing statistical procedures
prescribed in association with the bycatch reduction criterion, it is
difficult to certify new BRDs. Only two BRD types have been certified
since 1998 for use in the western Gulf. New BRD designs need to be
available to shrimp fishermen to better reduce bycatch of red snapper
and achieve recovery goals of this overfished stock, to better reduce
overall finfish bycatch to meet the requirements of national standard
9, and to improve shrimp retention for a more efficient fishery under
current economic conditions.
Several potentially effective BRD designs could not meet the very
specific and rigorous mortality-based criterion established for the
western Gulf. However, these experimental BRD designs have been
demonstrated to achieve substantial levels of overall finfish
reduction, and a moderate and consistent level of red snapper
reduction, exceeding the red snapper reduction being achieved by the
most commonly used configuration of the fisheye BRD. In addition, these
BRDs are similar to the fisheye BRD in terms of overall shrimp
retention.
A change in the bycatch reduction criterion west of Cape San Blas,
FL, from a reduction in fishing mortality of red snapper to a reduction
in finfish catch would increase the opportunity to certify a greater
variety of BRDs for use in the fishery, provide a uniform bycatch
reduction criterion and list of certified BRDs for the Gulf of Mexico
and the South Atlantic regions, and improve the overall reduction in
juvenile red snapper bycatch mortality. BRDs may have different
capabilities under different fishing conditions, and having a wider
variety of BRDs for use in the fishery would allow fishermen to choose
the most effective BRD for the specific local fishing conditions.
Revisions to the BRD Testing Protocol Manual
Background
BRD testing is conducted by comparing the differences in the catch
and bycatch of two nets that are towed simultaneously by a single
vessel. One net (control net) is a standard rigged shrimp trawl without
a BRD, and one net (experimental net) is identically configured, except
it contains the experimental BRD. Assuming the two nets have equal or
similar fishing efficiencies, the differences in catch and bycatch
between the two nets can be attributed to the inclusion of the
experimental BRD in one net. Since the Gulf of Mexico and South
Atlantic Manuals have been in effect, several experimental BRDs have
been tested for certification, but none have been certified. Two
specific issues appear to be impeding the successful testing and
eventual certification of experimental BRDs.
To be certified by the RA, the BRD candidate must demonstrate an
observed reduction rate meeting the bycatch reduction criterion with
some degree of statistical certainty. Currently, a modified Student t-
test, a standard statistical approach, is used to evaluate the data
collected during an experimental BRD evaluation. The criterion for the
western Gulf requires there be no more than a 5-percent probability the
true reduction rate is less than one standard deviation from the
observed mean reduction rate. The magnitude of any standard deviation
of a sample is dependent on the data set in question, and the analysis
is based on the assumption the individual data points reflect a
consistent result among sampling trials during a test. In the case of
evaluating a BRD candidate in the marine environment, where organisms
in the environment are not randomly distributed, catch rates can be
highly variable among successive trawl tows or even between nets during
a single tow. This variability increases the standard deviation, and
this increase is exacerbated by the small minimum sample size required
by the Manual, 30 comparative tows. A sample size of 30 is a recognized
minimum standard for conducting a Student t-test, but this standard
assumes the data being analyzed have relatively similar values, which
as noted, is not often true in the marine environment. However, this
sample size was considered necessary to minimize the cost and effort
involved in conducting an experimental BRD test.
The variability among data points and the resulting uncertainty
regarding the observed sample mean can be reduced
[[Page 58034]]
in two ways: (1) the researcher must ensure the sampling effort will
generate consistent results between samples, thus reducing variability
(increase precision); or (2) the sample size must be increased to
better ensure the resulting sample mean or average value is more likely
representative of the true mean value (increase accuracy). The first of
these options is not feasible for most biological sampling efforts; as
noted, organisms are not randomly distributed and collections of these
organisms would never be expected to produce consistent results. The
second alternative can be achieved, but only with a greatly increased
cost to the researcher; initial estimates suggest that between a four-
fold and eight-fold increase in sample size would be needed.
A second and equally critical issue for the initial development of
experimental BRDs involves the field sampling procedures prescribed in
the Manuals. These rigorous procedures were established with the intent
of reducing the inherent variability and uncertainty in the data
stemming from a small, 30-tow sample size. Several field tests were not
completed successfully (e.g., 30 successful comparative tows could not
be completed) because of a failure to meet one or more of the
procedural requirements set forth in the Manuals. However, not being
able to complete a field test on potentially effective BRDs because of
logistical constraints has substantial negative consequences for
conservation. Further development of particularly productive concepts
may cease, and BRD efficiency might never rise above the current level.
This discourages innovative developments to improve BRDs.
These issues were identified at a 1999 shrimp fishery stakeholder's
workshop sponsored by the Gulf and South Atlantic Fisheries Foundation,
Inc. Recommendations stemming from the workshop were made available to
the GMFMC and SAFMC for their consideration. Based on this information
as well as additional public input regarding the existing bycatch
Manuals, the GMFMC and SAFMC requested that NMFS develop alternative
procedures to address and alleviate these impediments to testing and
certifying new BRD candidates, while maintaining the statistical
confidence BRDs will meet the established bycatch reduction criterion
and achieve bycatch reduction goals.
NMFS is proposing to consolidate and make revisions to the Manuals
for the Gulf of Mexico and the South Atlantic region. The new, combined
BRD Testing Manual implemented under this proposed rule would establish
alternative statistical procedures and field sampling procedures. The
new statistical procedures would address the issue of statistical
uncertainty due to limited sample size when evaluating the
effectiveness of experimental BRD designs. Additionally, the proposed
rule would modify the Manual to incorporate additional flexibility in
the field sampling procedures. Coupled with the proposed modification
to the statistical approach, alternative sampling procedures provide
flexibility to better meet the logistical constraints of field sampling
while maintaining an acceptable level of statistical precision and
accuracy.
Gear Changes During a BRD Test
According to the current Manuals, if the fishing gear used at the
start of the test incurs damage and requires replacing, then the
certification test of a BRD candidate must begin anew. Under actual
field conditions, damage to fishing gear often occurs before the
completion of 30 tows. Even if 30 consecutive tows are completed during
a test without incident, the data represent results collected aboard a
single vessel using only one trawl configuration in a limited area and
during a specific time frame. Results from such a test might not be
applicable to other vessels fishing at other times of the year, in
other areas, or using other shrimp trawl configurations.
The proposed rule would modify the procedure to allow the
compilation of results from a series of tests to meet the 30-tow
minimum sample size for a complete BRD test. This alternative would
eliminate the need to reinitiate tests after a gear failure. Under the
proposed modifications, should gear failure occur, the applicant would
replace the damaged gear, conduct ``tuning'' tows (see Gear Tuning
below) to determine the new gear did not affect the fishing efficiency
between the two nets, and then continue the test. Minor repairs to the
gear (e.g., sewing holes in the webbing; replacing a broken tickler
chain with a new one of the same configuration) would not be considered
a gear change. Additionally, under this proposed procedure, it would be
possible to conduct the test over a longer period, aboard different
vessels, using different fishing gear configurations (with the same BRD
design), or while fishing in different areas. Should the data collected
in this manner demonstrate the BRD meets the bycatch reduction
criterion, there is a greater likelihood the BRD would be effective
under a broader array of actual commercial fishing conditions.
Tow Times
Currently, the sampling procedures require the selection of a fixed
tow time before beginning a test. Each tow may not deviate more than 10
percent from the selected tow time. The fishing efficiency of a net
changes (decreases) during a tow as the catch in the net increases. The
fixed-tow time requirement was intended to reduce that source of
variability in the data set, thus reducing the resulting uncertainty
associated with the sample mean reduction rate.
However, because of the non-random and patchy distribution and
abundance of organisms in the marine environment, a decrease or
increase in the tow time may be necessary during a specific BRD test.
For example, the total catch taken during a tow may be greater than
anticipated. If so, it may not be possible to keep the catch from each
net separated for sampling, thus precluding a successful sample of the
catch from a specific net. Under such conditions, shorter tow times
would produce manageable quantities of catch for sampling. Conversely,
catches of shrimp may be lower than anticipated, and the vessel captain
may want to increase the tow time. In either case, under the current
requirements, the test would have to be aborted and reinitiated if the
tow time were changed in increments greater than 10 percent of the
original tow time.
This proposed rule would allow the tow time to be changed after the
initiation of a test. The applicant would still be required to propose
a preferred tow time in the operations plan submitted to the RA as part
of the application for a Letter of Authorization (LOA). However, the
applicant would be allowed to make reasonable adjustments to the tow
times during a given test to adapt to local fishing conditions and
successfully complete the test.
Because the fishing efficiency of a trawl will change depending on
the amount of catch in the net, and the efficiency of the experimental
BRD similarly may be affected by the amount of catch in the net,
excessive differences in tow times for segments of a complete 30-tow
test sample could introduce a bias in the overall results. Therefore,
any tow time changes would need to be described and justified in a
report submitted to the RA at the conclusion of the test. The RA would
have to approve the changes before the data would be evaluated for
certification. The RA would consult with scientific and technical
staff, including the SEFSC, regarding the acceptability of
[[Page 58035]]
any alterations prior to making a final determination.
Gear Tuning and Fishing Efficiency Bias
As noted in the ``Background'' section, the basic assumption in
assessing the bycatch reduction efficiency of the BRD candidate during
paired-net tests is the BRD candidate in the experimental net
represents the only factor causing a difference in catch from the
control net. Therefore, prior to beginning a test series, the nets to
be used in the tests must be calibrated (tuned) to minimize, to the
extent practicable, any differences in catch efficiency, or ``bias''.
Nets would need to be tuned again after any gear modification or
change.
Even so, some efficiency bias may remain between nets, or biases
may develop during the test. To address the issue of potential biases
in fishing efficiency between nets, the current procedures require
rotation of the functioning experimental BRD between the port and
starboard nets every four to six tows (Gulf of Mexico) or daily (South
Atlantic). The intent of this requirement was to negate any remaining
bias by introducing that bias into both the control and experimental
data on a regular basis, thus reducing the uncertainty associated with
the resulting sample mean reduction rate.
To move a complex BRD candidate integrated into the structure of
the trawl (e.g., a soft turtle excluding device) may require moving
large sections of the net, or even the entire net, on each side of the
vessel. This would require loading the trawl doors onboard,
disconnecting, moving and re-connecting the nets, and re-deploying the
doors and nets overboard. This activity can take several hours to
complete. Not only does this increase non-fishing time for the
commercial vessel, it increases the amount of time required to complete
a BRD test. The need to load and handle the heavy trawl doors and other
fishing equipment on a frequent basis increases concerns about vessel
crew safety. All of these issues can be alleviated by allowing greater
flexibility in the establishment of a rotational schedule best meeting
the needs of the specific proposed test.
This proposed rule would remove the static requirement to rotate
the BRD every few tows, and allow the applicant to propose, as part of
the application for a LOA from the RA, a reasonable gear rotation
schedule to accommodate the complexity of the gear being tested. The
proposed rotational schedule would still need to ensure equal numbers
of tows are conducted with the BRD candidate in both the port and
starboard nets. Because the applicant would be monitoring the catch
rates in each net after each tow, if a substantial bias develops, the
applicant could take action to re-tune the gear or increase the
rotational schedule as needed. The applicant's proposed rotational
schedule would have to be approved by the RA before the LOA would be
issued. If the rotational schedule is changed during the test, the
applicant would need to provide a rationale for the action in the final
report submitting the data for certification. The RA would consult with
scientific and technical staff regarding the acceptability of any
changes to the rotational schedule prior to making a final
determination regarding the acceptability of the data.
Use of a Try Net During a BRD Test
A try net is a separate, small net pulled for brief periods by a
shrimp trawler during an extended trawling effort to test for shrimp
concentrations or determine fishing conditions. In the case of vessels
fishing four nets (quad-rigged), the nets being used to evaluate the
experimental BRD are positioned beyond the influence of the try net,
thus the use of a try net on a quad-rigged vessel is allowed under the
current procedures. However, on a vessel pulling only two nets (twin-
rigged) the try net is fishing in front of the main net on the same
side of the vessel. In that case, the try net is removing or diverting
some catch before the catch could enter the main net, and introducing
bias.
To avoid that bias, the current requirements in the Gulf of Mexico
prohibit the use of a try net during BRD tests conducted aboard twin-
rigged vessels. Nevertheless, the use of a try net is an integral part
of normal shrimping activities, ensuring the vessel is fishing on
commercial quantities of shrimp during each extended tow. Because BRD
candidate tests are intended to be conducted aboard actively fishing
commercial vessels, even if a state government, academic institution,
or other entity is the applicant of record, the quantity of shrimp and
incidental catch should reflect real fishing conditions. Use of a try
net is necessary to ensure the catch levels reflect those expected
during normal commercial shrimping operations.
The proposed rule would modify the procedures in the Manual to
allow the use of a try net during BRD tests aboard twin-rigged vessels
with the try net fishing directly in front of one of the main test
nets. To minimize and negate the potential bias, NMFS is proposing a
condition requiring the fishing time for the try net to remain a
consistent percentage of the total tow time for each tow throughout the
course of the test. This condition would expose both the control and
experimental nets (as they are rotated) to equivalent effects
introduced by the try net. This requirement should adequately address
the shrimp fishermen's need to use a try net as part of the commercial
operation while negating any potential bias introduced from the use of
the try net.
Data Collection
The current procedures require the collection of information on a
variety of species taken as catch and bycatch in shrimp trawls. The
current SAFMC Manual requires the collection of information on 25
species or species groups of finfishes. However, the certification
criterion is a 30-percent reduction, by weight, in total finfish, in
aggregate, not individual species. Therefore, the species specific data
requirement is outdated, and while informative, is not needed to
determine whether a BRD meets the existing certification criterion. For
the western Gulf, currently a BRD is certified only on its ability to
reduce the bycatch mortality of juvenile red snapper. However, this
proposed rule would revise the western Gulf criterion to also be a 30-
percent reduction in total finfish, and the specific requirements to
sample red snapper would no longer be appropriate.
The proposed rule would reduce mandatory data collection
requirements for tests conducted to certify a BRD. Mandatory data
collection during a certification test would be limited to recording
the total catch of each net, the total catch of commercial shrimp in
each net, and the total catch (or total catch in a pre-determined
sample) of all finfish species in aggregate. For tests conducted in the
western Gulf, applicants would be encouraged to record the total catch
of red snapper in each net, but these data would not be used in making
a decision to certify a BRD. Similarly, for all areas, data collection
for any other specific portions of the catch (i.e., specific finfish
species) is encouraged but voluntary, as this information is not
required for the certification of the BRD candidate.
Statistical Evaluation
The current certification approach was developed from the
procedures used in the Congressionally-mandated BRD research program of
the early 1990s. From a statistical standpoint, the goal is to develop
a procedure that has zero chance of passing a device with a true
reduction less than the target value, and zero chance of failing a
device with
[[Page 58036]]
true reduction greater than the target value. Realistically, there will
always be some probability a BRD with true reduction less than the
target criterion will pass (Type I error), and some probability a BRD
with true reduction greater than the target criterion will fail (Type
II error). In a certification context, a Type II error (rejecting an
acceptable BRD) has important negative conservation consequences, i.e.,
not being able to use a more effective BRD, or not having a wider
variety of BRD types available for use. A Type I error (accepting an
unsatisfactory BRD) may also have negative conservation consequences.
The concept of Type II errors is of general concern to the
statistical community, and has prompted substantial statistical
research and scientific publications on the properties of Type II
error. The probability of a Type II error of a hypothesis test is known
as the power of the test. Power analyses of the existing BRD data
indicated, because of the inherent variability, certification of
devices was unlikely unless the BRD demonstrated a 60- to 70-percent
sample mean reduction rate. This was not the intent when NMFS
established certification criteria of substantially lesser values.
It is preferable to be able to evaluate an experimental BRD via
probability statements of the form ``There is at least 'X' probability
the true reduction meets the target.'' SEFSC scientists have
recommended the use of a statistical standard, based on a Bayesian
approach, as a more applicable method than the current use of the
``classical'' Student-t test, or frequentist approach. The Bayesian
approach is more instructive about how competing risks (Type I and Type
II errors) can be controlled, given the new information now available
regarding the statistical power of the data and approaches.
Additionally, the Bayesian approach allows for the development and
evaluation of the capabilities of an experimental BRD in terms of
probability statements.
The proposed rule would replace the current ``classical''
statistical approach with a Bayesian approach. Under a Bayesian
approach, two probability statements would address the existing null
hypothesis regarding the certification of a BRD. These probability
statements would be: (1) The probability the true reduction meets the
target is at least 'A'; and (2) The probability the true reduction is
less than some minimum threshold is not more than 'B'. The probability
statements are based on observed data sets.
To be certified, the data set for a BRD candidate would need to
demonstrate a best point estimate (sample mean) meeting the
certification criterion. Additionally, the BRD candidate would have to
satisfy both probability statements above. The statistical properties
of the data being collected dictate a 50-percent probability value for
'A'. For any BRD, even if it were tested indefinitely under identical
conditions, there would be an ever-narrowing probability distribution
on either side of the mean observed reduction rate. Nevertheless, half
the probability distribution would include values less than the mean,
and half of the distribution would include values greater than the
mean. Therefore, to certify BRDs capable of meeting the target, NMFS
has determined the first probability statement can be adequately
expressed as: ``There is at least a 50-percent probability the true
reduction meets the bycatch reduction criterion.'' This would be
similar to other NMFS actions that have at least a 50-percent
probability of achieving a stock rebuilding target.
There will always be some risk the data set generated for a
specific device will result in a sample mean reduction rate meeting the
certification criterion, when the device's true reduction rate is less
than the certification criterion. Therefore, selecting a value for a
minimum threshold and a value for 'B' is a greater focus to managing
the risk of accepting a BRD not meeting the criterion. To address this
issue, it is necessary to establish a minimum threshold level, below
the target criterion, which is completely unacceptable, and set 'B'
accordingly, such that there is only a low risk of accepting a BRD
because of chance variation in the available data.
Based on the statistical results generated from data sets
certifying the BRDs currently in use in the South Atlantic and Gulf of
Mexico shrimp fisheries, SEFSC scientists have determined the second
probability statement can be adequately expressed as: ``There is no
more than a 10-percent probability the reduction rate of the BRD
candidate is more than 5 percent less than the bycatch reduction
criterion.'' In other words, for the current 30-percent finfish
reduction target, there is no more than a 10-percent probability the
true reduction rate of the BRD candidate is less than 25 percent.
The proposed change would increase the opportunity to certify a
greater variety of BRDs for use in the fishery, while maintaining a
statistical confidence in regard to the efficiency of the BRD. BRDs may
have different capabilities under different fishing conditions, and
having a wider variety of BRDs for use in the fishery would allow
fishermen to choose the most effective BRD for the specific local
fishing conditions. This would enhance compliance with national
standard 9 of the Magnuson-Stevens Act, and in the western Gulf of
Mexico, potentially accelerate the rebuilding efforts for the
overfished red snapper resource in the Gulf of Mexico.
Provisional Certification
In addition to revising the statistical evaluation for BRD
certification, NMFS proposes to create a ``provisional certification''
category for experimental BRDs. A provisional certification would apply
to an experimental BRD not quite meeting the criteria for
certification, but deemed likely to meet the criteria with further
testing. To be provisionally certified, statistical analyses of the
test results for an experimental BRD must demonstrate there is at least
a 50-percent probability the true reduction rate of the BRD candidate
is no more than 5 percent less than the bycatch reduction criterion.
In other words, the BRD candidate must demonstrate a best point
estimate (sample mean) within 5 percent of the certification criterion.
A provisional certification of a BRD would be effective for 2 years
from the date of publication in the Federal Register of any final rule
determining provisional certification. This time period would allow
additional wide-scale industry evaluation of the BRD candidate. The
intent would be to further refine the design or application of the
experimental BRD so it could eventually meet the certification
criterion.
Certification of New BRDs
The new BRD certification criterion to be established with this
proposed rule, along with the revisions to the Manual, especially the
addition of a ``provisional certification,'' would allow new and more
effective BRDs to be certified for use in the fishery. There would be
no change to the status of the existing certification of the Jones
Davis BRD in the southeast shrimp fishery. The original data used to
certify that BRD indicate it achieves a 58-percent reduction in total
finfish bycatch; there is a 100-percent probability the true reduction
rate meets the certification criterion.
The proposed rule would certify the Modified Jones Davis BRD for
use by the shrimp fishery throughout EEZ of the Gulf and South
Atlantic. This device has been demonstrated to provide a 33-percent
reduction in total finfish
[[Page 58037]]
bycatch. The power test indicates this device has a 98-percent
probability the true reduction rate of the BRD is greater than the
certification criterion, and there is less than a 1-percent probability
the true reduction rate of the BRD is 25 percent or less.
The proposed rule would also provisionally certify the extended
funnel BRD for use in the western Gulf. The extended funnel BRD is
currently certified for use in the eastern Gulf and South Atlantic. The
data set from the 1990's certifying the extended funnel BRD indicated
it reduced total finfish by 30 to 35 percent. Newer information
collected during 2001 through 2003 in the Gulf indicates the extended
funnel BRD is reducing finfish by only about 27 percent. Therefore, the
extended funnel BRD would not meet the proposed new certification
criterion. However, consistent with the proposed criterion for
provisional certification, there is a 74-percent probability the true
reduction rate of the BRD is at least 25 percent. Therefore, this
proposed rule would change the status of the extended funnel BRD in the
Gulf to a provisional certification which would remain effective for
two years from the date of publication of any final rule to implement
this regulatory amendment. NMFS anticipates additional work on the
extended funnel BRD would improve its performance, and allow it to meet
the certification criterion. No new information is available regarding
the efficacy of the extended funnel BRD in the South Atlantic. The
shrimp fishery in the South Atlantic tends to operate in shallower
water and has a different species composition to its bycatch. The new
information on the extended funnel BRD was all collected in the Gulf of
Mexico; there are no new data collected from the South Atlantic fishery
to indicate the BRDs are not meeting the bycatch reduction targets.
Therefore, the BRD will remain certified in the South Atlantic based on
prior determinations the BRD meets the criterion in that part of the
fishery.
This proposed rule would also provisionally certify one new design,
the composite panel BRD, for use in the Gulf and South Atlantic shrimp
fisheries. This BRD design has only been tested in the Gulf, but with a
provisional certification, this BRD can be more extensively evaluated
for its use in the South Atlantic. The mean sample reduction rate is
25.1 percent. There is a 52- percent probability the true reduction
rate of this BRD design is at least 25 percent. Therefore, NMFS
proposes to provisionally certify this BRD design. This provisional
certification would remain effective for two years from the date of
publication of any final rule to implement this regulatory amendment;
NMFS anticipates this would allow sufficient time to further test this
design in both the Gulf and South Atlantic fisheries.
The fisheye BRD was one of two BRD designs originally certified
under the existing criterion for use in the western Gulf. Because of
its simplistic design and low cost, it became the industry standard.
The most common configuration and placement in the trawl is greater
than 10.5 ft (3.2 m) from the trawl's cod end tie-off. According to
NMFS' SEFSC estimates, the fisheye BRD in this configuration is
achieving between 11- and 25-percent reductions in fishing mortality on
juvenile red snapper and a 14- to 23-percent reduction in finfish
bycatch by weight. Thus, it does not meet the current red snapper
morality target or the proposed 30-percent finfish reduction criterion.
Whether the criterion is changed or not, NMFS would not be able to
maintain the certification of the industry-standard fisheye BRD placed
10.5 ft (3.2 m) forward because it does not meet the existing red
snapper criterion or the proposed 30-percent finfish reduction
criterion. However, placed in other areas of the cod end, this type of
BRD is more effective, and NMFS is developing subsequent rulemaking to
modify the allowable placement of the fisheye BRD in trawl nets. The
analysis in this proposed rule discusses indirect impacts arising from
the change in the certification criterion, and its potential impact on
the future certification and possible decertification or revision to
allowable BRDs. For example, it appears at this time that the fisheye
BRD would be restricted in its allowable placement in the shrimp trawl
net. NMFS is developing separate rulemaking to address this additional
change, and the potential direct economic impacts associated with Gulf
shrimp vessels having to change or modify the current placement of BRDs
in their shrimp trawl nets will be fully analyzed in the subsequent
rule.
Similarly, it appears the efficiency of the expanded mesh BRD,
currently certified for use in the eastern Gulf and South Atlantic, has
decreased. During the original tests of the expanded mesh BRD in the
mid-1990s, the BRD achieved between 30- and 35-percent reduction in
total finfish. Recent tests of the expanded mesh BRD in the Gulf
indicate it is only achieving about a 17-percent reduction in total
finfish, thus, it does not meet the criteria to be certified or
provisionally certified. NMFS may revise the certification status of
the expanded mesh BRD in a separate rulemaking.
For all of these BRD designs, the potential of the BRDs has not
changed, but it appears fishing behavior, or some other factor in the
fleet, has changed. Actions to maximize shrimp retention, without
concurrently maintaining fish reductions, have diminished the BRDs'
effectiveness to reduce bycatch. There have been numerous technological
changes to the overall construction of shrimp trawl gear, such as new
turtle excluder devices and longer nets. In addition, there have been
changes in fishing practices to help increase shrimp retention, such as
faster towing speeds and modified retrieval procedures. The exact
reasons for the BRDs' change in efficiency are not known.
The new BRDs would actually improve red snapper bycatch reduction
and general finfish reduction relative to what the industry is
currently achieving with its use of the forward-placed fisheye BRD
because these new BRDs have a better exclusion rate than the industry
standard. The forward-placed fisheye BRD reduces fishing mortality on
juvenile red snapper by about 11 percent and reduces the biomass of
finfish by about 14 percent. The Modified Jones Davis BRD reduces red
snapper mortality by approximately 31 percent and reduces finfish by 33
percent. The extended funnel BRD reduces juvenile red snapper mortality
by approximately 25 percent and reduces finfish biomass by about 27
percent.
NMFS is now addressing red snapper management through measures
proposed in the Joint Amendment 27 to the FMP for the Reef Fish
Resources of the Gulf of Mexico and Amendment 14 to the FMP for the
Shrimp Fishery of the Gulf of Mexico. NMFS has initiated review of this
joint amendment and announced the availability of this joint amendment
for public comment on July 26, 2007 (72 FR 41046). Given the current
declines in the number of participants and effort expended by the
shrimp fishery, it is more practicable to control red snapper mortality
in the shrimp fishery through effort controls of that fishery versus
the use of BRDs. However, BRDs still play an important role in
addressing national standard 9 for total bycatch reduction potential.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, I
have determined that this proposed rule is consistent with the
regulatory amendment proposing these BRD-related revisions, other
provisions of the Magnuson-Stevens Act, and other
[[Page 58038]]
applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be significant for
purposes of Executive Order 12866.
NMFS prepared an IRFA, as required by section 603 of the Regulatory
Flexibility Act, for this proposed rule. The IRFA describes the
economic impact this proposed rule, if adopted, would have on small
entities. A description of the action, why it is being considered, and
the legal basis for this action are contained at the beginning of this
section in the preamble and in the SUMMARY section of the preamble. A
copy of the full analysis is available from NMFS (see ADDRESSES). A
summary of the IRFA follows.
The Magnuson-Stevens Act provides the statutory basis for the
proposed rule. The proposed rule would modify the procedures for field
testing BRD candidates for use in the Gulf of Mexico and South Atlantic
EEZ commercial shrimp fisheries and would modify the bycatch reduction
criterion for certifying BRDs for use in the penaeid shrimp fishery in
the Gulf EEZ west of Cape San Blas, FL.
The purpose of this proposed rule is to implement more practical
field testing procedures for BRD certification candidates and to
establish a realistic bycatch reduction threshold for the Gulf EEZ
commercial shrimp fishery.
No duplicative, overlapping or conflicting Federal rules have been
identified.
The primary entities that are expected to apply for the BRD
certification process are state government, academic, and not-for-
profit entities. Independent commercial shrimping operations in either
the Gulf or South Atlantic may also be included among applicants. NMFS
estimates up to 24 applicants will apply for the BRD certification
process during the first year and a smaller number in following years.
While the identity of entities that might pursue future BRD testing
cannot be determined with any certainty, based on past applicants, BRD
testing is expected to be undertaken by NOAA Fisheries Service, the
Texas Parks and Wildlife Department, the Florida Department of
Environmental Protection, Texas A&M University, the University of
Georgia, other institutions, and owners of shrimp vessels in the Gulf.
There are approximately 700 vessels permitted to operate in the
South Atlantic EEZ commercial shrimp fishery. The most current
assessment of the South Atlantic commercial shrimp fishery covers the
period 2000-2002 and encompasses vessels that operated in both state
and EEZ waters. While this assessment covered a larger universe of
vessels, an average of approximately 1,900 vessels per year, and
different economic conditions, it represents the best profile available
at this time. Over this period, average gross revenue per vessel ranged
from approximately $71,000 to approximately $81,000. The highest gross
revenue per vessel from all commercial harvesting activities did not
exceed $1.0 million.
For the Gulf EEZ, as of March 26, 2007, a moratorium permit is
required to fish for shrimp. Although it is unknown how many eligible
applicants will apply for a moratorium permit, 2,666 vessels would
qualify for the permit and are assumed to constitute the universe of
indirectly affected shrimping vessels.
An evaluation of revenue distribution by vessel size indicates
substantial differences in yearly average revenues between large (at
least 60 ft (18.3 m) in length) and small vessels in the Gulf EEZ
commercial shrimp fishery. For the large vessel group, average annual
revenues per vessel in 2004 was approximately $140,000, while the
comparable value for small vessels was approximately $27,000. Across
all vessels, the average annual gross revenue per vessel was
approximately $110,000. Maximum yearly gross revenue reported by a
qualifying vessel was approximately $1,046,000.
On average, ``small'' vessels are also ``smaller'' in regards to
almost all of their physical attributes (e.g. they use smaller crews,
fewer and smaller nets, have less engine horsepower and fuel capacity,
etc.). Small vessels are also older on average. Larger vessels also
tend to be steel-hulled. Fiberglass hulls are most prominent among
small vessels, though steel and wood hulls are also common. Nearly two-
thirds of large vessels have freezing capabilities while few small
vessels have such equipment. Small vessels still rely on ice for
refrigeration and storage, though more than one-third of large vessels
also rely on ice. Some vessels are so small that they rely on live
wells for storage.
An important difference between large and small Gulf EEZ commercial
shrimp vessels is with respect to their dependency on the food shrimp
fishery. The percentage of revenues arising from food shrimp landings
is approximately 81 percent for large vessels, but only approximately
58 percent for small vessels. Thus, on average, large vessels are more
dependent than their smaller counterparts on the food shrimp fishery.
However, dependency on food shrimp is much more variable within the
small vessel sector than the large vessel sector. Many small vessels
are quite dependent on food shrimp landings, while others illustrate
little if any dependency.
Finally, according to recent projections, on average, both small
and large Gulf EEZ commercial shrimp vessels are experiencing
significant economic losses, ranging from a -27 percent rate of return
in the small vessel sector to a -36 percent rate of return in the large
vessel sector (-33 percent on average for the fishery as a whole).
Therefore, almost any but the most minor additional financial burden
would be expected to generate a significant adverse impact on affected
vessels and potentially hasten additional exit from the fishery.
The Small Business Administration (SBA) defines a small
organization as any not-for-profit enterprise that is independently
owned and operated and not dominant in its field of operation. This
definition includes private educational institutions. The SBA also
defines a small governmental jurisdiction as the government of cities,
counties, towns, townships, villages, school districts, or special
districts with a population less than 50,000. Finally, the SBA defines
a small business in the commercial fishing activity as an entity that
is independently owned and operated, is not dominant in its field of
operation (including its affiliates), and has average annual total
receipts not in excess of $4.0 million annually (NAICS codes 114111 and
114112, finfish and shellfish fishing).
While the identity of entities that might pursue future BRD testing
cannot be determined with any certainty, based on past applicants, BRD
testing is expected to be undertaken by NOAA Fisheries Service, the
Texas Parks and Wildlife Department, the Florida Department of
Environmental Protection, Texas A&M University, the University of
Georgia, other institutions, and owners of shrimp vessels in the Gulf.
The respective state agencies are extensions of the respective state
governments and, as such, clearly exceed the SBA population thresholds
for small government entities. Similarly, both Texas A&M University and
the University of Georgia are, as public universities, extensions of
the respective state government educational systems, with staff being
state employees, and, therefore, would similarly be appropriately
classified as large entities. Although no private colleges or
universities that might apply for the BRD testing process have been
identified, as private rather than public educational institutions,
while some exceptions may exist, private educational institutions
generally are understood to be smaller in terms of
[[Page 58039]]
student population, staff, and operational budgets than public
institutions and, as such, are determined for the purpose of this
analysis to be small entities. Given the aforementioned maximum annual
revenue figures for Gulf and South Atlantic commercial shrimping
operations, vessels that would be expected to participate in the
certification program are determined to be small business entities for
the purpose of this analysis. Thus, most entities that may apply for
the BRD certification process are likely to be small entities, and only
a maximum of 24 entities would be expected to apply the first year,
with fewer entities applying in subsequent years.
All entities that would qualify for the Gulf EEZ commercial shrimp
fishery moratorium permit, 2,666 vessels, would be expected to be
indirectly affected by the proposed Gulf bycatch reduction criterion.
Given the maximum revenue provided above for Gulf EEZ commercial
shrimping operations, all shrimp vessels that have the potential to be
indirectly impacted by the proposed change in the Gulf bycatch
reduction criterion are determined to be small entities for the purpose
of this analysis.
The outcome of ``significant economic impact'' can be ascertained
by examining two issues: disproportionality and profitability.
The disproportionality question is: do the proposed regulations
place a substantial number of small entities at a significant
competitive disadvantage to large entities? Revision to the Manual
would not be expected to result in any direct or indirect adverse
economic impacts to any affected entities since the reporting burden
per applicant will not increase and the revisions, in and of
themselves, will not cause any BRDs to be certified, provisionally
certified, or decertified in future actions. Therefore, the issue of
disproportionate impacts would not apply to this action.
Similarly, the proposed change to the Gulf EEZ commercial shrimp
fishery bycatch reduction criterion would not result in any direct
adverse economic impacts on participants in the Gulf EEZ commercial
shrimp fishery. However, the change in the bycatch reduction criterion
would be expected to generate indirect impacts on vessels in the Gulf
EEZ commercial shrimp fishery as a result of future certification,
provisional certification, and/or decertification actions. All of these
vessels have been determined to be small business entities. Hence, the
issue of disproportionality would also not apply to this action.
The proposed certifications and provisional certifications would
also impact all vessels in the Gulf EEZ commercial shrimp fishery, as
well as vessels in the South Atlantic EEZ commercial shrimp fishery in
some cases. As all of these entities were determined to be small
entities, the issue of disproportionality would not apply to these
proposed actions.
The profitability question is: do the regulations significantly
reduce profit for a substantial number of small entities?
The proposed revision of the Manual would not directly affect
fishery participation or harvest because it merely establishes
procedures under which research and gear development may proceed. The
proposed bycatch reduction criterion for the Gulf EEZ commercial shrimp
fishery is not expected to result in any direct adverse economic
impacts the participants in this fishery because it is an
administrative action.
The proposed criterion would, however, be expected to result in
decertification of some currently used BRDs/configurations through
subsequent regulatory action. This decertification would require the
use of alternative certified or provisionally certified BRDs and would
result in increased operating costs. Among the BRDs currently in use,
the maximum increase in operating costs that would be incurred as a
result of future decertification would be the first-year BRD
replacement costs, ranging from $2,550 to $4,250 per vessel per year,
associated with the Jones-Davis BRD--the most expensive of the
remaining certified BRDs. This increase would represent between 2.3
percent and 3.8 percent of an average vessel's annual revenues.
Industry-wide, the re-gearing costs for the Gulf EEZ commercial shrimp
fishery would be expected to range from approximately $2.8-$10.1
million for all moratorium permit qualifiers, or approximately $2.2-
$7.7 million if only active qualifiers elect to obtain moratorium
permits. However, these costs would directly accrue only to a
subsequent rule and not to the current proposed action.
The proposed criterion would also allow for the Modified Jones-
Davis BRD to be certified for use in the Gulf of Mexico and South
Atlantic EEZ shrimp fisheries, the extended funnel BRD to be
provisionally certified for use in the western Gulf EEZ shrimp fishery,
and the composite panel BRD to be provisionally certified for use in
the Gulf of Mexico and South Atlantic EEZ shrimp fisheries, as is
proposed in this rule. However, these three BRDs are used by few shrimp
vessel owners at present, are more costly to purchase, and attain
higher levels of shrimp loss on average relative to the predominantly
used fisheye BRD. As such, no shrimp vessel owners would be expected to
voluntarily switch from their currently used BRDs to these BRDs. As
such, no direct impacts would result from their certification or
provisional certification. Therefore, this proposed rule would not be
expected to result in any direct impact on the profitability of any
small business entities in the shrimp fishery or associated industries.
However, substantial reductions in annual gross revenues could occur as
a result of subsequent BRD decertification associated with future
rulemaking. Depending upon the BRD type currently used and the
availability of replacements, small vessels could lose from
approximately $300 to $4,000, or from less than 1 percent to more than
8 percent of annual gross revenues, while large vessels could
experience a small gain of approximately $600 to a loss of $26,000, or
a less than 1 percent gain to a greater than 14 percent loss. Even
assuming net shop supply is able to meet demand, if all vessels are
able to switch to certified BRDs, the range of impacts is only reduced
to a maximum projected annual loss of $1,400 (3 percent) for small
vessels and $14,000 (8 percent) for large vessels, though this last
figure would apply to relatively few vessels, with the majority of
large vessels projected to experience a loss of $3,500 to $4,000 (2
percent) reductions in annual gross revenues.
The management measures considered in this proposed rule do not
affect the reporting or record-keeping requirements for shrimp vessels.
This proposed action, which only modifies the performance standards
used in BRD certification, does not require additional records or
report preparation.
Two alternatives, the proposed alternative and the status quo, were
considered for the action to modify the Manual. The status quo would
continue overly restrictive and inflexible testing procedures and would
not achieve NMFS' objectives.
Three alternatives, including the status quo, were considered for
the action to change the BRD bycatch reduction criterion. Two
alternatives contained multiple options, resulting in seven effective
alternatives. As previously discussed, changing the criterion is an
administrative action and would not simultaneously decertify BRDs
currently in use or require immediate replacement. Decertification,
with attendant costs, however, could be
[[Page 58040]]
expected to occur through subsequent action.
The status quo would be expected to result in the decertification
of the fisheye BRD for use in the Gulf commercial shrimp fishery,
inducing industry-wide replacement costs of approximately $6.0-$10.1
million for all moratorium permit qualifiers, or approximately $4.6-
$7.7 million if only active qualifiers elect to obtain moratorium
permits. The minimum range of these costs is greater than that of the
proposed rule because while the proposed rule could also lead to the
decertification of the fisheye BRD via subsequent action, it would
allow the use of the cheaper modified Jones-Davis BRD.
The second alternative would continue to base the bycatch reduction
target on juvenile red snapper, similar to the status quo, but
considered three different minimum thresholds. The two lower thresholds
(12 percent and 20 percent) would be expected to allow continued use of
the fisheye BRD, which is the most commonly used BRD, resulting in no
direct adverse economic impacts and no increased indirect costs.
Neither threshold, however, would meet the objective of national
standard 9, which requires that bycatch be reduced to the extent
practicable. Hence, these lower thresholds would not meet the Magnuson-
Stevens Act's requirements. The highest threshold (30 percent) would be
expected to result in the same effects as the status quo, resulting in
greater indirect adverse economic impacts than the proposed rule.
The third alternative would base the bycatch reduction criterion on
all finfish and considered four minimum thresholds, ranging from 10-40
percent. The two lower thresholds (10 percent and 20 percent) would be
expected to allow continued use of fisheye BRDs, resulting in no direct
adverse economic impacts and increased indirect gear costs. However,
neither threshold would meet the Magnuson-Stevens Act requirement of
achieving bycatch reduction to the extent practicable. The highest
threshold (40 percent) would not be expected to result in any direct
adverse economic impacts but would be expected to result in indirect
increased gear costs equal to those of the status quo, which are higher
than those of the proposed rule. This alternative would also set an
excessive standard that few BRD designs could achieve.
This rule contains approved collection-of-information requirements-
-namely, the BRD certification process, consisting of applications for
pre-certification or certification of a new BRD, pre-certification
adjusting, the testing itself, the submission of the test results,
application for observer position, and references for observers,
subject to the Paperwork Reduction Act (PRA). These collection-of-
information requirements have been approved by OMB under Control Number
0648-0345. The public reporting burden for this collection of
information which includes the application, pre-certification phase,
testing, and submission of results, is estimated to average 194 hours
per test. The public reporting burden for applying for an observer
position will average 1 hour per response, and the burden for obtaining
references will average 1 hour per response. The collection consists of
an Application Form, Vessel Information Form, Gear Specification Form,
TED/BRD Specification Form, Station Sheet Form, Species
Characterization Form, Length Frequency Form, and Condition and Fate
Form. The average response time for each of these forms is 20 minutes,
except for the Species Characterization Form which has a 2.8-hour
response time and the Application Form which has a 2.3-hour response
time. In addition, 4 hours will be needed to prepare the final report.
These burden estimates include the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Send comments regarding these burden estimates or any other aspect of
the collection-of-information requirement, including suggestions for
reducing the burden, to NMFS and to OMB (see ADDRESSES).
Notwithstanding any other provision of law, no person is required
to respond to, nor shall a person be subject to a penalty for failure
to comply with, a collection of information subject to the requirements
of the PRA unless that collection of information displays a currently
valid OMB control number.
List of Subjects in 50 CFR Part 622
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping
requirements, Virgin Islands.
Dated: October 9, 2007.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 622 is
proposed to be amended as follows:
PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC
1. The authority citation for part 622 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 622.41, paragraph (h) is removed and reserved and
paragraph (g) is revised to read as follows:
Sec. 622.41 Species specific limitations.
* * * * *
(g) BRD requirement for Gulf and South Atlantic shrimp. On a shrimp
trawler in the Gulf EEZ or South Atlantic EEZ, each net that is rigged
for fishing must have a BRD installed that is listed in paragraph
(g)(2) of this section and is certified or provisionally certified for
the area in which the shrimp trawler is located, unless exempted as
specified in paragraphs (g)(1)(i) through (iv) of this section. A trawl
net is rigged for fishing if it is in the water, or if it is shackled,
tied, or otherwise connected to a sled, door, or other device that
spreads the net, or to a tow rope, cable, pole, or extension, either on
board or attached to a shrimp trawler.
(1) Exemptions from BRD requirement--(i) Royal red shrimp
exemption. A shrimp trawler is exempt from the requirement to have a
certified or provisionally certified BRD installed in each net provided
that at least 90 percent (by weight) of all shrimp on board or
offloaded from such trawler are royal red shrimp.
(ii) Try net exemption. A shrimp trawler is exempt from the
requirement to have a certified or provisionally certified BRD
installed in a single try net with a headrope length of 16 ft (4.9 m)
or less provided the single try net is either pulled immediately in
front of another net or is not connected to another net.
(iii) Roller trawl exemption. A shrimp trawler is exempt from the
requirement to have a certified or provisionally certified BRD
installed in up to two rigid-frame roller trawls that are 16 ft (4.9 m)
or less in length used or possessed on board. A rigid-frame roller
trawl is a trawl that has a mouth formed by a rigid frame and a grid of
rigid vertical bars; has rollers on the lower horizontal part of the
frame to allow the trawl to roll over the bottom and any obstruction
while being towed; and has no doors, boards, or similar devices
attached to keep the mouth of the trawl open.
(iv) BRD certification testing exemption. A shrimp trawler that is
authorized by the RA to participate in the pre-certification testing
phase or to
[[Page 58041]]
test a BRD in the EEZ for possible certification, has such written
authorization on board, and is conducting such test in accordance with
the ``Bycatch Reduction Device Testing Manual'' is granted a limited
exemption from the BRD requirement specified in this paragraph (g). The
exemption from the BRD requirement is limited to those trawls that are
being used in the certification trials. All other trawls rigged for
fishing must be equipped with certified or provisionally certified
BRDs.
(2) Procedures for certification and decertification of BRDs. The
process for the certification of BRDs consists of two phases--an
optional pre-certification phase and a required certification phase.
The RA may also provisionally certify a BRD.
(i) Pre-certification. The pre-certification phase allows a person
to test and evaluate a new BRD design for up to 60 days without being
subject to the observer requirements and rigorous testing requirements
specified for certification testing in the ``Bycatch Reduction Device
Testing Manual.''
(A) A person who wants to conduct pre-certification phase testing
must submit an application to the RA, as specified in the ``Bycatch
Reduction Device Testing Manual.'' The ``Bycatch Reduction Device
Testing Manual'', which is available from the RA, upon request,
contains the application forms.
(B) After reviewing the application, the RA will determine whether
to issue a letter of authorization (LOA) to conduct pre-certification
trials upon the vessel specified in the application. If the RA
authorizes pre-certification, the RA's LOA must be on board the vessel
during any trip involving the BRD testing.
(ii) Certification. A person who proposes a BRD for certification
for use in the Gulf EEZ or South Atlantic EEZ must submit an
application to test such BRD, conduct the testing, and submit the
results of the test in accordance with the ``Bycatch Reduction Device
Testing Manual.'' The RA will issue a LOA to conduct certification
trials upon the vessel specified in the application if the RA finds
that: The operation plan submitted with the application meets the
requirements of the ``Bycatch Reduction Device Testing Manual''; the
observer identified in the application is qualified; and the results of
any pre-certification trials conducted have been reviewed and deemed to
indicate a reasonable scientific basis for conducting certification
testing. If authorization to conduct certification trials is denied,
the RA will provide a letter of explanation to the applicant, together
with relevant recommendations to address the deficiencies resulting in
the denial. If a BRD meets the certification criterion, as determined
consistent with the ``Bycatch Reduction Device Testing Manual'', NMFS,
through appropriate rulemaking procedures, will add the BRD to the list
of certified BRDs in paragraph (g)(3) of this section; and provide the
specifications for the newly certified BRD, including any special
conditions deemed appropriate based on the certification testing
results.
(iii) Provisional certification. Based on data provided consistent
with the ``Bycatch Reduction Device Testing Manual'', the RA may
provisionally certify a BRD if there is at least a 50-percent
probability the true reduction rate of the BRD is no more than 5
percent less than the bycatch reduction criterion. Through appropriate
rulemaking procedures, NMFS will add the BRD to the list of
provisionally certified BRDs in paragraph (g)(3) of this section; and
provide the specifications for the BRD, including any special
conditions deemed appropriate based on the certification testing
results. A provisional certification is effective for 2 years from the
date of publication of the notification in the Federal Register
announcing the provisional certification.
(iv) Decertification. The RA will decertify a BRD if NMFS
determines the BRD does not meet the requirements for certification or
provisional certification. Before determining whether to decertify a
BRD, the RA will notify the appropriate Fishery Management Council in
writing, and the public will be provided an opportunity to comment on
the advisability of any proposed decertification. The RA will consider
any comments from the Council and public, and if the RA elects to
decertify the BRD, the RA will proceed with decertification via
appropriate rulemaking.
(3) Certified and provisionally certified BRDs--(i) Certified BRDS.
The following BRDs are certified for use in the Gulf EEZ and South
Atlantic EEZ unless indicated otherwise. Specifications of these
certified BRDs are contained in Appendix D to this part.
(A) Fisheye.
(B) Gulf fisheye.
(C) Jones-Davis.
(D) Modified Jones-Davis.
(E) Expanded mesh.
(F) Extended funnel -South Atlantic EEZ only.
(ii) Provisionally certified BRDs. The following BRDs are
provisionally certified for use in the areas and for the time periods
indicated. Specifications of these provisionally certified BRDs are
contained in Appendix D to this part.
(A) Extended funnel- Gulf EEZ only; through the date that is 2
years after the date of publication of the final rule implementing this
regulatory amendment.
(B) Composite panel -Gulf EEZ and South Atlantic EEZ; through the
date that is 2 years after the date of publication of the final rule
implementing this regulatory amendment.
* * * * *
3. In Appendix D to part 622, sections F and G are added to read as
follows:
Appendix D to Part 622--Specifications for Certified BRDs
* * * * *
F. Modified Jones-Davis.
1. Description. The Modified Jones-Davis BRD is a variation to
the alternative funnel construction method of the Jones-Davis BRD
except the funnel is assembled by using depth-stretched and heat-set
polyethylene webbing instead of the flaps formed from the extension
webbing. In addition, no hoops are used to hold the BRD open.
2. Minimum Construction and Installation Requirements. The
Modified Jones-Davis BRD must contain all of the following.
(a) Webbing extension. The webbing extension must be constructed
from a single piece of 1 5/8-inch (4.1-cm) stretch mesh number 30
nylon 39 \1/2\ meshes by 150 meshes. A tube is formed from the
extension webbing by sewing the 39 \1/2\-mesh side together.
(b) Funnel. The funnel must be constructed from two sections of
1 5/8-inch (4.1-cm) heat-set and depth-stretched polypropylene or
polyethylene webbing. The two side sections must be rectangular in
shape, 25 meshes on the leading edge by 21 meshes deep. The 25-mesh
leading edge of each polyethylene webbing section must be sewn
evenly two meshes in from the front of the extension webbing
starting 25 meshes from the top center on each side. The 21-mesh
edge must be sewn to the extension webbing on a 9-bar and 1-mesh
angle in the top and bottom, forming a V-shape funnel.
(c) Cutting the escape opening. The leading edge of the escape
openings must be located within 18 inches (45.7 cm) of the posterior
edge of the turtle excluder device (TED) grid. The area of the
escape opening must total at least 635 inches\2\ (4,097 cm\2\). Two
escape openings, 6 meshes wide by 12 meshes deep, must be cut 4
meshes apart in the extension webbing, starting at the top center
extension seam, 7 meshes back from the leading edge, and 30 meshes
to the left and to the right (total of four openings). The four
escape openings must be double selvaged for strength.
(d) Cone fish deflector. The cone fish deflector is constructed
of 2 pieces of 1 5/8-inch (4.1-cm) polypropylene or polyethylene
webbing, 40 meshes wide by 20 meshes in length and cut on the bar on
each side forming a triangle. Starting at the apex of the two
triangles, the two pieces must be sewn
[[Page 58042]]
together to form a cone of webbing. The apex of the cone fish
deflector must be positioned within 12 inches (30.5 cm) of the
posterior edge of the funnel.
(e) 11-inch (27.9-cm) cable hoop for cone deflector. A single
hoop must be constructed of 5/16-inch (0.79-cm) or 3/8-inch (0.95-
cm) cable 34 \1/2\inches (87.6 cm) in length. The ends must be
joined by a 3-inch (7.6-cm) piece of 3/8-inch (0.95-cm) aluminum
pipe pressed together with a 1/4-inch (0.64-cm) die. The hoop must
be inserted in the webbing cone, attached 10 meshes from the apex
and laced all the way around with heavy twine.
(f) Installation of the cone in the extension. The apex of the
cone must be installed in the extension within 12 inches (30.5 cm)
behind the back edge of the funnel and attached in four places. The
midpoint of a piece of number 60 twine (or at least 4-mesh wide
strip of number 21 or heavier webbing) 4 ft (1.22 m) in length must
be attached to the apex of the cone. This piece of twine or webbing
must be attached within 5 meshes of the aft edge of the funnel at
the center of each of its sides. Two 12-inch (30.5-cm) pieces of
number 60 (or heavier) twine must be attached to the top and bottom
of the 11-inch (27.9-cm) cone hoop. The opposite ends of these two
pieces of twine must be attached to the top and bottom center of the
extension webbing to keep the cone from inverting into the funnel.
G. Composite Panel.
1. Description. The Composite Panel BRD is a variation to the
alternative funnel construction method of the Jones-Davis BRD except
the funnel is assembled by using depth stretched and heat set
polyethylene webbing with square mesh panels on the inside instead
of the flaps formed from the extension webbing. In addition, no
hoops are used to hold the BRD open.
2. Minimum Construction and Installation Requirements. The
Composite Panel BRD must contain all of the following:
(a) Webbing extension. The webbing extension must be constructed
from a single piece of 1 5/8-inch (4.1-cm) stretch mesh number 30
nylon 24 \1/2\ meshes by 150 meshes. A tube is formed from the
extension webbing by sewing the 24 \1/2\-mesh side together. The
leading edge of the webbing extension must be attached no more than
4 meshes from the posterior edge of the TED grid.
(b) Funnel. The V-shaped funnel consists of two webbing panels
attached to the extension along the leading edge of the panels. The
top and bottom edges of the panels are sewn diagonally across the
extension toward the center to form the funnel. The panels are 2-ply
in design, each with an inner layer of 1 5/8-inch (4.1- cm) heat-set
and depth-stretched polyethylene webbing and an outer layer
constructed of 2-inch (5.1-cm) square mesh webbing (1-inch bar). The
inner webbing layer must be rectangular in shape, 36 meshes on the
leading edge by 20 meshes deep. The 36- mesh leading edges of the
polyethylene webbing should be sewn evenly to 24 meshes of the
extension webbing 1 \1/2\ meshes from and parallel to the leading
edge of the extension starting 12 meshes up from the bottom center
on each side. Alternately sew 2 meshes of the polyethylene webbing
to 1 mesh of the extension webbing then 1 mesh of the polyethylene
webbing to 1 mesh of the extension webbing toward the top. The
bottom 20-mesh edges of the polyethylene layers are sewn evenly to
the extension webbing on a 2 bar 1 mesh angle toward the bottom back
center forming a v-shape in the bottom of the extension webbing. The
top 20-mesh edges of the polyethylene layers are sewn evenly along
the bars of the extension webbing toward the top back center. The
square mesh layers must be rectangular in shape and constructed of
2-inch (5.1-cm) webbing that is 18 bars or squares on the leading
edge and 32 bars or squares down each side. The 18 bar leading edge
of each square mesh layer must be sewn evenly 1 bar to 2 meshes of
the 36-mesh leading edge of the polyethylene section and the 32-bar
sides are sewn evenly (in length) to the 20-mesh edges of the
polyethylene webbing. This will form a v-shape funnel using the top
of the extension webbing as the top of the funnel and the bottom of
the extension webbing as the bottom of the funnel.
(c) Cutting the escape opening. There are two escape openings on
each side of the funnel. The leading edge of the escape openings
must be located on the same row of meshes in the extension webbing
as leading edge of the composite panels. The lower openings are
formed by starting at the first attachment point of the composite
panels and cutting 9 meshes in the extension webbing on an even row
of meshes toward the top of the extension. Next, turn 90 degrees and
cut 15 points on an even row toward the back of the extension
webbing. At this point turn and cut 18 bars toward the bottom front
of the extension webbing. Finish the escape opening by cutting 6
points toward the original starting point. The top escape openings
start 5 meshes above and mirror the lower openings. Starting at the
leading edge of the composite panel and 5 meshes above the lower
escape opening, cut 9 meshes in the extension on an even row of
meshes toward the top of the extension. Next, turn 90 degrees, and
cut 6 points on an even row toward the back of the extension
webbing. Then cut 18 bars toward the bottom back of the extension.
To complete the escape opening, cut 15 points forward toward the
original starting point. The area of each escape opening must total
at least 212 in\2\ (1,368 cm\2\). The four escape openings must be
double salvaged for strength.
Note: The ``Bycatch Reduction Device Testing Manual'' is
published, excluding the Manual's appendices, as an appendix to this
document. See the contact under ADDRESSES to obtain a complete
Manual. This appendix will not appear in the Code of Federal
Regulations.
Appendix--Bycatch Reduction Device Testing Manual Definitions
Bycatch reduction criterion is the standard by which a BRD
candidate will be evaluated. To be certified for use by the shrimp
fishery in the Exclusive Economic Zone off the southeastern United
States (North Carolina through Texas), the BRD candidate must
demonstrate a successful reduction of total finfish bycatch by at
least 30 percent by weight.
Bycatch reduction device (BRD) is any gear or trawl modification
designed to allow finfish to escape from a shrimp trawl.
BRD candidate is a BRD to be tested for certification for use in
the commercial shrimp fishery of southeastern United States.
Certified BRD is a BRD that has been tested according to the
procedure outlined herein and has been determined by the RA as
having met the bycatch reduction criterion.
Control trawl means a trawl that is not equipped with a BRD
during the evaluation.
Evaluation and oversight personnel means scientists, observers,
and other technical personnel who, by reason of their occupation or
scientific expertise or training, are approved by the RA as
qualified to evaluate and review the application and testing
process.
Experimental trawl means the trawl that is equipped with the BRD
candidate during an evaluation.
Net/side bias means when the net(s) being fished on one side of
the vessel demonstrate a different catch rate (fishing efficiency)
than the net(s) being fished on the other side of the vessel during
paired-net tests.
Observer means a person on the list maintained by the RA of
individuals qualified (see Appendix H) to supervise and monitor a
BRD certification test.
Paired-net test means a tow during certification trials where a
control net and an experimental net are fished simultaneously, and
the catches and catch rates between the nets are compared.
Provisional Certification Criterion means a secondary benchmark
which would allow a BRD candidate to be used for a time-limited
period in the southeastern shrimp fishery. To meet the criterion,
the BRD candidate must demonstrate a successful reduction of total
finfish bycatch by at least 25 percent by weight.
Provisionally certified BRD means a BRD that has been tested
according to the procedure outlined herein and has been determined
by the RA as having met the provisional certification criterion. A
BRD meeting the provisional certification criterion would be
certified by the RA for a period of 2 years.
Regional Administrator (RA) means the Southeast Regional
Administrator, National Marine Fisheries Service.
Required measurements refers to the quantification of gear
characteristics such as the dimensions and configuration of the
trawl, the BRD candidate, the doors, or the location of the BRD in
relation to other parts of the trawl gear that are used to assess
the performance of the BRD candidate.
Sample size means the number of successful tows (a minimum of 30
tows per test are required).
Shrimp trawler means any vessel that is equipped with one or
more trawl nets whose on-board or landed catch of shrimp is more
than 1 percent, by weight, of all fish comprising its on-board or
landed catch.
Successful tow means that the control and experimental trawl
were fished in accordance with the requirements set forth herein and
[[Page 58043]]
the terms and conditions of the letter of authorization, and there
is no indication problematic events, such as those listed in
Appendix D-5, occurred during the tow to impact or influence the
fishing efficiency (catch) of one or both nets.
Tow time means the total time (hours and minutes) an individual
trawl was fished (i.e., the time interval beginning when the winch
is locked after deploying the net overboard, and ending when
retrieval of the net is initiated).
Trawl means a net and associated gear and rigging used to catch
shrimp. The terms trawl and net are used interchangeably throughout
this Manual.
Try net means a separate net pulled for brief periods by a
shrimp trawler to test for shrimp concentrations or determine
fishing conditions (e.g., presence of absence of bottom debris,
jellyfish, bycatch, and seagrasses).
Tuning a net means adjusting the trawl and its components to
minimize or eliminate any net/side bias that exists between the two
nets that will be used as the control and experimental trawls during
the certification test.
I. Introduction
This Bycatch Reduction Device Testing Manual (Manual)
establishes a standardized process for evaluating the ability of
bycatch reduction device (BRD) candidates to meet the established
bycatch reduction criterion, and be certified for use in the EEZ by
the southeastern shrimp fishery. BRDs are required for use in shrimp
trawls fished shoreward of the 100-fathom (183-meter) depth contour
in the Gulf of Mexico, and within the EEZ of the South Atlantic
region.
Various BRD requirements also exist in state waters in the South
Atlantic and off Florida and Texas in the Gulf of Mexico. Persons
wishing to conduct BRD candidate evaluations exclusively in state
waters do not need to apply to NMFS for authorization to conduct
these tests, but should contact the appropriate state officials for
authorizations. However, for data collected in such evaluations to
be considered by NMFS for certification, the operations plan and
data collection procedures must meet the criteria established in
this Manual.
II. BRD Candidate Evaluations
A. Application
Persons interested in evaluating the efficiency of a BRD
candidate must apply for, receive, and have on board the vessel
during the evaluation, a Letter of Authorization (LOA) from the
Regional Administrator (RA). To receive an LOA, the applicant must
submit the following documentation to the RA: (1) a completed
application form (Appendix A); (2) a brief statement of the purpose
and goal of the activity for which the LOA is requested; (3) an
operations plan (see Section C below) describing the scope,
duration, dates, and location of the test, and methods that will be
used to conduct the test; (4) an 8.5- inch x 11-inch (21.6-cm x
27.9-cm) diagram drawn to scale of the BRD design; (5) an 8.5-inch x
11-inch (21.6-cm x 27.9-cm) diagram drawn to scale of the BRD in the
shrimp trawl; (6) a description of how the BRD is supposed to work;
(7) a copy of the testing vessel's U.S. Coast Guard documentation or
its state registration; and (8) a copy of the testing vessel's
Federal commercial shrimp vessel permit.
An applicant requesting an LOA to test an unapproved turtle
excluder device (TED) as a BRD (including modifications to a TED
that would enhance finfish exclusion) must first apply for and
obtain from the RA an experimental TED authorization pursuant to 50
CFR 223.207(e)(2). Applicants should contact the Protected Resources
Division of NMFS' Southeast Regional Office for further information.
The LOA applicant must include a copy of that authorization with the
application.
Incomplete applications will be returned to the applicant along
with a letter from the RA indicating what actions the applicant may
take to make the application complete.
There is no cost to the applicant for the RA's administrative
expenses such as reviewing applications, issuing LOAs, evaluating
test results, or certifying BRDs. However, all other costs
associated with the actual testing activities are the responsibility
of the applicant, or any associated sponsor. If an application for
an LOA is denied, the RA will provide a letter of explanation to the
applicant, together with relevant recommendations to address the
deficiencies that resulted in the denial.
B. Allowable Activities
Issuance of an LOA to test a BRD candidate in the South Atlantic
or Gulf of Mexico allows the applicant to remove or disable the
existing certified BRD in one outboard net (to create a control
net), and to place the BRD candidate in another outboard net in lieu
of a certified BRD (to create an experimental net). All other trawls
under tow during the test must have a certified BRD, unless these
nets are specifically exempted in the LOA. All trawls under tow
during the test must have an approved TED unless operating under an
authorization issued pursuant to 50 CFR 223.207(e)(2), whereby the
test is being conducted on an experimental TED. The LOA, and
experimental TED authorization if applicable, must be on board the
vessel while the test is being conducted. The term of the LOA will
be 60 days; should circumstances require a longer test period, the
applicant may apply to the RA for a 60-day extension.
C. Operations Plan
An operations plan should be submitted with the application
describing a method to compare the catches of shrimp and fish in a
control net (net without a BRD candidate installed) to the catches
of the same species in an experimental net (a net configured
identically to the control net but also equipped with the BRD
candidate).
The applicant may choose to conduct a pre-certification test of
a prototype BRD candidate. A pre-certification test would be
conducted when the intent is to assess the preliminary effectiveness
of a prototype BRD candidate under field conditions, and to make
modifications to the prototype BRD candidate during the field test.
For pre-certification testing, the operations plan must include only
a description of the scope, duration, dates, and location of the
test, along with a description of methods that will be used to
conduct the test. No observer is required for a pre-certification
test, but the applicant may choose to use an observer to maintain a
written record of the test. The applicant will maintain a written
record for both the control and experimental net during each tow.
Mandatory data collection is limited to the weight of the shrimp
catch and the weight of the total finfish catch in each test net
during each tow. These data must be submitted to NMFS at the
conclusion of the test. Although not required, the applicant may
wish to incorporate some or all the certification test requirements
listed below.
For a BRD candidate to be considered for certification, the
operations plan must be more detailed and address the following
topics:
(1) The primary assumption in assessing the bycatch reduction
efficiency of the BRD candidate during paired net tests is that the
inclusion of the BRD candidate in the experimental net is the only
factor causing a difference in catch from the control net.
Therefore, the nets to be used in the tests must be calibrated
(tuned) to minimize, to the extent practicable, any net/side bias in
catch efficiency prior to beginning a test series, and tuned again
after any gear modification or change. Additional information on
tuning shrimp trawls to minimize bias is available from the
Harvesting Technology Branch, Mississippi Laboratories, Pascagoula
Facility, 3209 Frederic Street, Pascagoula, MS 39568 1207; phone
(601) 762 4591.
(2) A standard tow time for a proposed evaluation should be
defined. Tow times must be representative of the tow times used by
commercial shrimp trawlers. The applicant should indicate what
alternatives will be considered should the proposed tow time need
adjustment once the test begins.
(3) A minimum sample size of 30 successful tows using a specific
BRD candidate design is required for the statistical analysis
described in Section F. No alterations of the BRD candidate design
are allowed during a specific test series. If the BRD candidate
design is altered, a new test series must be started. If a gear
change (i.e., changing nets, doors, or rigging) is required, the
nets should be tuned again before proceeding with further tests to
complete the 30-tow series. Minor repairs to the gear (e.g., sewing
holes in the webbing; replacing a broken tickler chain with a new
one of the same configuration) are not considered a gear change.
(4) Biases that might result from the use of a try net should be
reduced to the extent practicable. Total fishing times for a try net
must be a consistent percentage of the total tow time during each
tow made in the test.
(5) To incorporate any net/side bias that remains after the
tuning tows (e.g., the effect of a try net), or to accommodate for
bias that develops between the control and experimental nets during
the test, the operations plan should outline a timetable ensuring
that an equal number of successful tows are made with the BRD
candidate employed in both the port and starboard nets.
(6) Mandatory data to be collected during a test includes: (1)
detailed gear specifications as set forth in Appendices B and C, and
(2) pertinent information concerning the location, duration and
catch
[[Page 58044]]
from individual tows as set forth in Appendices D and F.
(7) Following each paired tow, the catches from the control and
experimental nets must be examined separately. This requires that
the catch from each net be kept separate from each other, as well as
from the catch taken in other nets fished during that tow. Mandatory
data collections include recording the weight of the total catch of
each test net (control and experimental nets), the catch of shrimp
(i.e., brown, white, pink, rock, or other shrimp by species) in each
test net, and the catch of total finfish in aggregate in each test
net.
(8) When recording the detailed information on the species found
in the catch, if the catch in a net does not fill one standard 1-
bushel [ca. 10 gallon] (30 liters) polyethylene shrimp basket (ca.
70 lb) (31.8 kg), but the tow is otherwise considered successful,
data must be collected on the entire catch of the net, and recorded
as a ``select'' sample (see Appendices D and F), indicating that the
values represent the total catch of the particular net. If the catch
in a net exceeds 70 lb (31.8 kg), a well-mixed sample consisting of
one standard 1-bushel [ca. 10 gallon] (30 liters) polyethylene
shrimp basket must be taken from the total catch of the net. The
total weight of the sample must be recorded, as well as the weights
(and numbers as applicable) of the various species or species groups
found within that sample. These sample values can then be
extrapolated to estimate the quantity of those species or species
groups found in the total catch of the particular net.
(9) Although not a criterion for certification, applicants
testing BRD candidates are encouraged to collect additional
information that may be pertinent to addressing bycatch issues in
their respective regions. For example, In the western Gulf of Mexico
applicants are especially encouraged to collect information on red
snapper. If the applicant chooses to collect these data, the total
(``select'') catch of the target species from each test net (not
just from the sample) should be recorded along with lengths for as
many as individuals per net per tow as set forth in Appendices E and
F. Additional information in regard to the catch can be recorded on
forms such as Appendix G.
The operations plan should address what the applicant will do
should it become necessary to deviate from the primary procedures
outlined in the operations plan. The plan should describe in detail
what will be done to continue the test in a reasonable manner that
is consistent with the primary procedures. For example, it may
become necessary to alter the pre-selected tow time to adapt to
local fishing conditions to successfully complete the test. Prior to
issuing a LOA, the RA may consult with evaluation personnel to
review the acceptability of these proposed alterations.
D. Observer Requirements
It is the responsibility of the applicant to ensure that a
qualified observer (see Appendix H) is on board the vessel during
the certification tests. A list of qualified observers is available
from the RA. Observers may include employees or individuals acting
on behalf of NMFS, state fishery management agencies, universities,
or private industry who meet the minimum requirements outlined in
Appendix H. Any change in information or testing circumstances, such
as replacement of the observer, must be reported to the RA within 30
days. Under 50 CFR 600.746, when any fishing vessel is required to
carry an observer as part of a mandatory observer program under the
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C.
1801, et seq.), the owner or operator of the vessel must comply with
guidelines, regulations, and conditions to ensure their vessel is
adequate and safe to carry an observer, and to allow normal observer
functions to collect information as described in this Manual. A
vessel owner is deemed to meet this requirement if the vessel
displays one of the following: (i) a current Commercial Fishing
Vessel Safety Examination decal, issued within the last 2 years,
that certifies compliance with regulations found in 33 CFR chapter
I, and 46 CFR chapter I; (ii) a certificate of compliance issued
pursuant to 46 CFR 28.710; or (iii) a valid certificate of
inspection pursuant to 46 U.S.C. 3311. The observer has the right to
check for major safety items, and if those items are absent or
unserviceable, the observer may choose not to sail with the vessel
until those deficiencies are corrected.
E. Reports
A report on the BRD candidate test results must be submitted by
the applicant or associated sponsor before the RA will consider the
BRD for certification. The report must contain a comprehensive
description of the tests, copies of all completed data forms used
during the tests, and photographs, drawings, and similar material
describing the BRD. The captain, vessel owner, or the applicant must
sign and submit the cover form (Appendix I). The report must include
a description and explanation of any unanticipated deviations from
the operations plan which occurred during the test. These deviations
must be described in sufficient detail to indicate the tests were
continued in a reasonable manner consistent with the approved
operations plan procedures. Applicants must provide information on
the cost of materials, labor, and installation of the BRD candidate.
In addition, any unique or special circumstances of the tests, such
as special operational characteristics or fishing techniques which
enhance the BRD's performance, should be described and documented as
appropriate.
F. Certification
The RA will determine whether the required reports and
supporting materials are sufficient to evaluate the BRD candidate's
efficiency. The determination of sufficiency would be based on
whether the applicant adhered to the prescribed testing procedure or
provided adequate justification for any deviations from the
procedure during the test. If the RA determines that the data are
sufficient for evaluation, the BRD candidate will be evaluated to
determine if it meets the bycatch reduction criterion. In making a
decision, the RA may consult with evaluation and oversight
personnel. Based on the data submitted for review, the RA will
determine the effectiveness of the BRD candidate, using appropriate
statistical procedures such as Bayesian analyses, to determine if
the BRD candidate meets the following criteria:
(1) There is at least a 50-percent probability that the true
reduction rate of the BRD candidate meets the bycatch reduction
criterion (i.e., the BRD candidate demonstrates a best point
estimate [sample mean] that meets the certification criterion); and
(2) There is no more than a 10-percent probability that the true
reduction rate of the BRD candidate is more than 5 percent less than
the bycatch reduction criterion.
To be certified for use in the fishery, the BRD candidate will
have to satisfy both criteria. Criterion 1 will ensure that the
observed reduction rate of the BRD candidate has an acceptable level
of certainty that it meets the bycatch reduction criterion.
Criterion 2 will ensure BRD candidates meeting the bycatch reduction
criterion also demonstrate a reasonable degree of certainty that the
observed reduction rate represents the true reduction rate of the
BRD candidate. This determination ensures the operational use of the
BRD candidate in the shrimp fishery will, on average, provide a
level of bycatch reduction that meets the established bycatch
reduction criterion. Interested parties may obtain details regarding
the hypothesis testing procedure to be used by contacting the
Harvesting Technology Branch, Mississippi Laboratories, Pascagoula
Facility, 3209 Frederic Street, Pascagoula, MS 39568 1207; phone
(228) 762 4591. Following a favorable determination of the
certification analysis, the RA will certify the BRD (with any
appropriate conditions as indicated by test results) and add the BRD
to the list of certified BRDs in the Federal Register through
appropriate rulemaking procedures.
In addition, based on the data provided, the RA may
provisionally certify a BRD candidate through appropriate rulemaking
procedures based on the following criterion:
There is at least a 50-percent probability that the true
reduction rate of the BRD candidate is no more than 5 percent less
than the bycatch reduction criterion (i.e., the BRD candidate
demonstrates a best point estimate [sample mean] within 5 percent of
the certification criterion).
A provisional certification will be effective for 2 years from
the date of publication in the Federal Register of a determination
of provisional certification. This time period will allow additional
wide scale industry evaluation of the BRD candidate, during which
additional effort would be made to improve the efficiency of the BRD
to meet the certification criterion.
III. BRDs Not Certified and Resubmission Procedures
The RA will advise the applicant, in writing, if a BRD is not
certified. This notification will explain why the BRD was not
certified and what the applicant may do to either modify the BRD or
the testing procedures to improve the chances of having the BRD
certified in the future. If certification was denied because of
insufficient information, the RA will explain what information is
lacking. The applicant must provide the additional information
within 60 days from receipt of such notification. If the
[[Page 58045]]
additional information is not provided within 60 days, the
application will be deemed abandoned. If the RA subsequently
certifies the BRD, the RA will announce the certification in the
Federal Register.
IV. Decertification of BRDs
The RA will decertify a BRD whenever NMFS determines a BRD no
longer satisfies the bycatch reduction criterion. Before determining
whether to decertify a BRD, the RA will notify the appropriate
Fishery Management Council in writing, and the public will be
provided an opportunity to comment on the advisability of any
proposed decertification. The RA will consider any comments from the
Council and public, and if the RA elects to proceed with
decertification of the BRD, the RA will publish proposed and final
rules in the Federal Register with a comment period of not less than
15 days on the proposed rule.
A provisionally certified BRD is valid for use in the fishery
for 2 years from the date of publication of a notice in the Federal
Register. If no new data are submitted to indicate the efficiency of
the BRD has been improved, the RA will remove the BRD from the list
of provisionally certified BRDs.
V. Interactions with Sea Turtles
The following section is provided for informational purposes.
Sea turtles are listed under the Endangered Species Act as either
endangered or threatened. The following procedures apply to
incidental take of sea turtles under 50 CFR 223.206(d)(1):
``Any sea turtles taken incidentally during the course of
fishing or scientific research activities must be handled with due
care to prevent injury to live specimens, observed for activity, and
returned to the water according to the following procedures:
(A) Sea turtles that are actively moving or determined to be
dead (as described in paragraph (B)(4) below) must be released over
the stern of the boat. In addition, they must be released only when
fishing or scientific collection gear is not in use, when the engine
gears are in neutral position, and in areas where they are unlikely
to be recaptured or injured by vessels.
(B) Resuscitation must be attempted on sea turtles that are
comatose or inactive by:
(1) Placing the turtle on its bottom shell (plastron) so that
the turtle is right side up and elevating its hindquarters at least
6 inches (15.2 cm) for a period of 4 to 24 hours. The amount of
elevation depends on the size of the turtle; greater elevations are
needed for larger turtles. Periodically, rock the turtle gently left
to right and right to left by holding the outer edge of the shell
(carapace) and lifting one side about 3 inches (7.6 cm) then
alternate to the other side. Gently touch the eye and pinch the tail
(reflex test) periodically to see if there is a response.
(2) Sea turtles being resuscitated must be shaded and kept damp
or moist but under no circumstance be placed into a container
holding water. A water-soaked towel placed over the head, carapace,
and flippers is the most effective method in keeping a turtle moist.
(3) Sea turtles that revive and become active must be released
over the stern of the boat only when fishing or scientific
collection gear is not in use, when the engine gears are in neutral
position, and in areas where they are unlikely to be recaptured or
injured by vessels. Sea turtles that fail to respond to the reflex
test or fail to move within 4 hours (up to 24, if possible) must be
returned to the water in the same manner as that for actively moving
turtles.
(4) A turtle is determined to be dead if the muscles are stiff
(rigor mortis) and/or the flesh has begun to rot; otherwise, the
turtle is determined to be comatose or inactive and resuscitation
attempts are necessary.
Any sea turtle so taken must not be consumed, sold, landed,
offloaded, transshipped, or kept below deck.''
[FR Doc. 07-5061 Filed 10-10-07; 11:09 am]
BILLING CODE 3510-22-S