Fishery conservation and management: Caribbean, Gulf, and South Atlantic fisheries— Gulf of Mexico shrimp,

[Federal Register: April 29, 1999 (Volume 64, Number 82)]

[Proposed Rules]

[Page 23039-23047]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr29ap99-21]

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 990330083-9083-01; I.D. 031999B]

RIN 0648-AK32

Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Shrimp Fishery of the Gulf of Mexico; Certification of Bycatch Reduction Devices

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

ACTION: Proposed rule; request for comments.

SUMMARY: In accordance with the framework procedure for adjusting management measures of the Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico (FMP), NMFS proposes procedures for the testing and certification of bycatch reduction devices (BRDs) for use in shrimp trawls in the exclusive economic zone (EEZ) in the Gulf of Mexico. The intended effect is to foster the development and provide for the certification of additional BRDs.

DATES: Written comments must be received on or before May 14, 1999.

ADDRESSES: Comments on the proposed rule and requests for copies of the regulatory impact review (RIR) must be sent to the Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702.

Comments regarding the collection-of-information requirements contained in this rule should be sent to Edward E. Burgess, Southeast Regional Office, NMFS, and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC 20503 (Attention: NOAA Desk Officer).

Requests for copies of the Gulf of Mexico Bycatch Reduction Device Testing Protocol Manual should be sent to the Southeast Regional Office, NMFS.

FOR FURTHER INFORMATION CONTACT: Steve Branstetter, NMFS, 727-570-5305.

SUPPLEMENTARY INFORMATION: The fishery for shrimp in the EEZ of the Gulf of Mexico is managed under the FMP. The FMP was prepared by the Gulf of Mexico Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act by regulations at 50 CFR part 622.

Amendment 9 to the FMP mandated, with limited exceptions, the use of BRDs in shrimp trawls fished in the EEZ of the Gulf of Mexico shoreward of the 100-fathom (fm) (183-m) depth contour west of 85 deg.30' W. longitude. Excluded from the requirement to use BRDs are vessels trawling for royal red shrimp beyond the 100-fm (183-m) depth contour, vessels trawling for butterfish or groundfish, and vessels trawling for shrimp with no more than two rigid-frame roller trawls that are 16 ft (4.9 m) or less in length. In addition, a vessel may use a single trynet without a BRD installed if the headrope length is 16 ft (4.9 m) or less. The fisheye, Gulf fisheye, and Jones-Davis BRDs are currently certified for use in shrimp trawls in the EEZ of the Gulf of Mexico (63 FR 18139, April 14, 1998; 63 FR 27449, May 19, 1998).

Amendment 9 to the FMP specified that a testing protocol and administrative procedures for conducting tests on additional BRDs would be developed by NMFS, and implemented via a regulatory amendment (framework procedure). In accordance with the framework procedures of the FMP, the Regional Administrator (RA), Southeast Region, NMFS, referred to as the RD in the

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codified text, has developed a testing protocol and administrative procedures to be used to certify additional BRDs for use in shrimp trawls in the Gulf of Mexico.

Amendment 9 set forth as the criterion for certification of an additional BRD for use in shrimp trawls in the EEZ of the Gulf of Mexico, that it must reduce the mortality of juvenile (age 0 and age 1) red snapper by a minimum of 44 percent compared to the average level of bycatch mortality on these age groups during 1984-1989. The testing protocol is a standardized scientific procedure to be followed to demonstrate whether a BRD meets the certification criterion.

There are two phases to the proposed procedure--an optional pre- certification phase, and a required certification phase. The pre- certification phase would allow a person to experiment with and gather data on non-certified BRD designs for up to 60 days, without having to carry an observer on the testing vessel or having to comply with a rigorous testing schedule. Thus, this phase would allow a person to experiment with different BRD designs and configurations to improve them and to determine whether they would be likely to meet the certification criterion. A person who wishes to conduct pre- certification phase testing would have to submit an application to the RA for a letter of authorization (LOA). The application would have to set forth basic information about the applicant and testing vessel's owner/operator; the purpose, scope, dates, and location of the requested BRD evaluation; scale diagrams of the BRD design; a description of how the BRD is intended to function; and a copy of the testing vessel's documentation or state registration. Upon receipt of a complete application, the RA would determine whether to issue an LOA to conduct pre-certification testing from the vessel specified in the application. The RA would issue a pre-certification phase LOA if the BRD design is substantially unlike any BRD design previously determined not to meet the BRD certification criterion or, if the design is substantially similar, the application demonstrates that the design could meet the certification criterion through design revision or upon retesting (e.g., the application shows that statistical results could be improved upon retesting by such things as using a larger sample size than that previously used). If a pre-certification LOA is denied, the RA would send the applicant a letter of explanation, together with relevant recommendations to address the deficiencies resulting in the denial. If an LOA were issued, it would grant a limited exemption from the requirement that a certified BRD be installed in each trawl that is rigged for fishing, for those trawls that are being used in the pre- certification phase testing (i.e., experimental and control trawls). All other trawls under tow must be equipped with certified BRDs. All trawls including those being used in the pre-certification phase testing must be equipped with approved Turtle Excluder Devices (TEDs), unless operating under an authorization issued under 50 CFR 227.72(e)(5)(ii). The letter of authorization would be valid for no more than 60 days and must be onboard the vessel during the tests. For additional details, see the Gulf of Mexico Bycatch Reduction Device Testing Protocol Manual (Manual) which is published as an appendix to this proposed rule.

All persons desiring to conduct certification phase testing of a BRD design would be highly encouraged to first conduct pre- certification phase testing. The pre-certification phase allows the BRD design to be adjusted or otherwise optimized and for data to be gathered showing that the design could meet the certification criterion upon certification phase testing. The submission of pre-certification phase data to provide a scientific basis for the conduct of certification testing is not an absolute requirement for the issuance of a certification phase LOA. For example, a request to conduct certification phase testing of a minor modification of a certified BRD design would not need to include pre-certification phase data. Similarly, a request for certification phase testing of a previously failed design that under a different test plan (e.g., larger sample sizes) could yield improved statistical results would likewise not need pre-certification phase data. However, pre-certification phase data would normally be needed to establish a reasonable scientific basis for conducting certification phase testing (e.g., that the BRD could meet the certification criterion upon certification testing).

A person wishing to conduct certification phase testing would also have to submit an application for an LOA. The Manual sets forth what the application for a certification LOA must contain. Unlike the application for a pre-certification phase LOA, this application must set forth a plan meeting the certification testing protocol, must identify who would be the observer (from the list of individuals maintained by the RA as being qualified to be an observer) and that has no current or prior financial relationship with the entity seeking BRD certification, and that a reasonable scientific basis exists for conducting certification phase testing.

Upon receipt of a complete application for a certification LOA, the RA would determine whether to issue an LOA to conduct certification testing from the vessel specified in the application. The RA would issue the LOA if he/she determines that: (1) The test plan meets the requirements of the protocol; (2) the observer in the application is qualified and has no current or prior financial relationship with any entity seeking BRD certification; (3) the BRD candidate is substantially unlike any BRD previously determined not to meet the current bycatch reduction criterion, or the applicant has shown good cause for retesting (such as the likelihood of improved statistical results yielded from a larger sample size than that previously used); and (4) for BRDs not previously tested for certification, the results of any pre-certification testing indicating a reasonable scientific basis for certification testing. If a certification LOA is denied, the RA would send a letter of explanation to the applicant, together with relevant recommendations to address the deficiencies resulting in the denial. The approved observer would have to be on board the vessel during all test tows. Any change in information or testing circumstances, such as replacement of the observer, would have to be reported to the RA within 30 days. Application forms and standardized forms for recording the tests and for reporting the results are contained in the Manual and its appendices. Additional details and specifications are contained in the Manual. (See ADDRESSES for availability.)

Classification

This proposed rule has been determined to be not significant for purposes of E.O. 12866.

The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule would not have a significant economic impact on a substantial number of small entities as follows:

NMFS prepared a regulatory impact review (RIR) that describes the economic outcomes expected if the proposed rule is implemented. The basic finding of the RIR was that the economic changes are largely in terms of the costs for participants in the certification testing program to apply for the program and complete the pre- certification and certification testing requirements. These

[[Page 23041]]

costs are estimated at about $398,000. Government costs related to developing the testing Manual, issuing permits, processing testing data and making certification decisions are estimated to total about $86,000. Potential future benefits to the red snapper and shrimp fisheries were attributed to the prospect that the certification of new BRD designs would provide for an enhancement to red snapper stocks and new BRD designs have the potential of lower shrimp loss rates relative to shrimp loss rates of BRDs currently in use. These benefits were not quantified because the size of the benefits depends on how the BRDs to be tested will perform in terms of bycatch reduction and shrimp loss rates. It was determined that the proposed action is not significant under E.O. 12866 because the annual economic impact is much less than $100 million and none of the other criteria for significance will be met.

The basic determination included a finding that a substantial number of small entities, estimated to comprise most of the offshore Gulf of Mexico fleet of about 4,000 vessels, could be positively impacted, but at a level that is far below the criteria for a significant gross revenue impact. It was also determined that there are no annual compliance costs except for 24 small entities that may be involved in the testing, there are no differential small versus large business impacts, capital costs will not change, and no small entities are expected to cease operations if the proposed rule is implemented.

As a result, a regulatory flexibility analysis was not prepared. Copies of the RIR are available (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 Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid OMB control number.

This rule contains collection-of-information requirements subject to the PRA--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. This requirement has been submitted to OMB for approval. The public reporting burden for this collection of information is estimated to average 211 hours per application, pre-certification phase, testing, and submission of results. 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 5 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. 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).

Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology.

List of Subjects in 50 CFR Part 622

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

Dated: April 22, 1999. Penelope D. Dalton, Assistant Administrator for Fisheries, 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. 622.7, paragraph (bb) is reserved and paragraph (aa) is added to read as follows:

   Sec. 622.7 Prohibitions.

   * * * * *

   (aa) Falsify information submitted on the testing of a BRD or the results of such testing, as specified in Sec. 622.41(g)(3)(i) or (h)(4)(i).

   (bb) [Reserved]

3. In Sec. 622.41, the first sentence of paragraph (h)(1)(i) is revised and paragraph (h)(4) is added to read as follows:

   Sec. 622.41 Species specific limitations.

   * * * * *

   (h) * * *

   (1) * * *

   (i) Except as exempted in paragraphs (h)(1)(ii) through (iv) and paragraph (h)(4)(iii) of this section, on a shrimp trawler in the Gulf EEZ shoreward of the 100-fathom (183-m) depth contour west of 85 deg.30' W. long., each net that is rigged for fishing must have a certified BRD installed. * * * * * * * *

   (4) Procedures for certification of additional BRDs. The process for the certification of additional BRDs consists of two phases--an optional pre-certification phase, and a required certification phase.

   (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 rigourous testing requirements specified for certification testing in the Gulf Of Mexico Bycatch Reduction Device Testing Protocol Manual.

   (A) A person who wants to conduct pre-certification phase testing must submit an application, as specified in the Gulf Of Mexico Bycatch Reduction Device Testing Protocol Manual, to the RD. The Gulf Of Mexico Bycatch Reduction Device Testing Protocol Manual, which is available from the RD, upon request, contains the application forms.

   (B) After reviewing the application, the RA will make a determination whether to issue a letter of authorization to conduct pre-certification trials upon the vessel specified in the application. The RA would issue a pre-certification phase LOA if the BRD design is substantially unlike any BRD design previously determined not to meet the BRD certification criterion or, if the design is substantially similar, the application demonstrates that the design could meet the certification criterion through design revision or upon retesting (e.g., the application shows that statistical results could be improved upon retesting by such things as using a larger sample size than that previously used). If the RD authorizes pre-certification, the RD's letter of authorization 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 must submit an application to test such BRD, conduct the testing, and submit the results of the test in accordance with the Gulf Of Mexico Bycatch Reduction Device Testing Protocol Manual. The RA will make a determination whether to issue a letter of authorization to conduct

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   certification trials upon the vessel specified in the application. The determination will be based upon a finding that: The test plan meets the requirements of the protocol; the observer identified in the application is qualified and has no current or prior financial relationship with the entity seeking BRD certification; the application presents a BRD candidate substantially unlike BRDs previously determined not to meet the current bycatch reduction criterion, or the applicant has shown good cause for reconsideration (such as the likelihood of improved statistical results yielded from a larger sample size than that previously used); and for BRDs not previously tested for certification, 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. A BRD that meets the certification criterion, as determined under the testing protocol, will be added to the list of certified BRDs in paragraph (h)(2) of this section by publication of a final rule, technical amendment, in the Federal Register. The final rule will provide the specifications for the newly certified BRD, including any special conditions deemed appropriate based on the certification testing results.

   (iii) A shrimp trawler that is authorized to participate in the pre-certification phase, or to test a BRD in the EEZ for possible certification, has such written authorization on board and is conducting such test in accordance with the Gulf Of Mexico Bycatch Reduction Device Testing Protocol Manual is granted a limited exemption from the BRD requirement specified in paragraph (h)(1) of this section. 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 BRDs.

   Note: The Gulf of Mexico Bycatch Reduction Device Testing Protocol Manual and appendixes H and I to the Manual are published as appendixes to this document. These appendixes will not appear in the Code of Federal Regulations.

   Appendix--Gulf of Mexico Bycatch Reduction Device Testing Protocol Manual

   Definitions

   Bycatch reduction criterion is that the BRD reduces the mortality of juvenile (age 0 and age 1) red snapper by a minimum of 44 percent from the average level of bycatch mortality (F=2.06) on these age classes during the years 1984-1989.

   Bycatch reduction device (BRD) is any gear or trawl modification designed to allow finfish to escape from a shrimp trawl.

   BRD candidate is a bycatch reduction device to be tested for certification for use in the commercial shrimp fishery of the Gulf of Mexico.

   Catch per unit of effort (CPUE) means the number or pounds of fish (e.g., red snapper) or shrimp taken during a pre-defined measure of fishing activity (e.g., per hour).

   Certification phase is a required testing phase whereby an individual so authorized by the RA may conduct a discrete testing program, with a sample size adequate for statistical analysis (no less than 30 tows), to determine whether a BRD candidate meets the bycatch reduction criterion.

   Certified BRD is a BRD that has been tested according to this protocol and documented to meet the bycatch reduction criterion.

   Control trawl means a trawl used during the certification testing that is not equipped with a BRD. The catch of this trawl is compared to the catch of the experimental trawl.

   Experimental trawl means the trawl used during the certification tests that is equipped with the BRD candidate.

   Evaluation and oversight personnel includes scientists, observers, and other technical personnel who, by reason of their occupational or other experience, scientific expertise or training, are approved by the Regional Administrator (RA) as qualified to evaluate and oversee the application and testing process. Scientists and other technical personnel will (1) review a BRD certification test application for its merit, and (2) critically review the scientific validity of the certification test results.

   Observer means a person on the list maintained by the RA of individuals qualified to supervise and monitor a BRD certification test. Applicants may obtain the list of individuals qualified to be an observer from the RA. The individual chosen by the applicant to be the observer may not have any current or prior financial relationship with the entity seeking BRD certification. For information on observer qualification criteria and the observer application process, see Appendix I.

   Pre-certification phase is an optional testing phase whereby an individual, so authorized by the RA, can experiment with the design, construction, and configuration of a BRD and gather data.

   Regional Administrator means the Southeast Regional Administrator, National Marine Fisheries Service, 9721 Executive Center Drive North, St. Petersburg, Florida 33702, phone 727-570-5301.

   Required measurements refers to the quantification of the dimensions and configuration of the trawl, the BRD candidate, the doors, the location of the BRD in relation to other parts of the trawl gear, and other quantifiable criteria used to assess the performance of the BRD candidate.

   Sample size means the number of successful tows (a minimum of 30 tows per test are required).

   Shrimp loss means the percent difference in average CPUE (e.g. kg/ hr) between the amount of shrimp caught in the control trawl and the amount of shrimp caught in the experimental trawl.

   Successful tow means that the control and experimental trawl were fished in accordance with the requirements set forth in the protocol and the terms and conditions of the letter of authorization, that the control or experimental net caught at least five red snapper during the tow, and that no indication exists that problematic events, such as those listed in Appendix D-5, occurred during the tow which would impact or influence the fishing efficiency (catch) of one or both nets.

   Tow time means the total time (hours and minutes) an individual trawl was fished while being towed (i.e., the time between ``dog-off'' and start of haul back).

   Trawl means a net and associated gear and rigging, as illustrated in Appendix B-5 of this manual, used to catch shrimp. The terms trawl and net are used interchangeably throughout the manual.

   Tuning a net means adjusting the trawl and its components to minimize the differences in shrimp catch between the two nets that will be used as the control and experimental trawls during the certification tests.

   1. Introduction

      Purpose of the Protocol

      This protocol sets forth a standardized scientific procedure for the testing of a BRD candidate and for the evaluation of its ability to meet the bycatch reduction

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      criterion. For a BRD candidate to be certified by the RA, the BRD candidate must meet the bycatch reduction criterion.

      There are two phases to this procedure: An optional, but recommended, pre-certification phase and a required certification phase. An applicant is encouraged to take advantage of the pre- certification phase which allows experimentation with different BRD designs and configurations prior to certification phase testing (see below for details). The certification phase requires the applicant to conduct a discrete testing program, with a sample size of no less than 30 tows to determine whether the BRD candidate meets the bycatch reduction criterion. There is no cost to the applicant for the RA's administrative expenses such as preparing applications, issuing LOAs, or evaluating test results or certifying BRDs. However, all other costs associated with either phase (such as field testing) are at the applicant's expense.

   2. Pre-Certification Phase (Optional)

      The pre-certification phase provides a mechanism whereby an individual can experiment with the design, construction, and configuration of a prototype BRD for up to 60 days to improve the design's effectiveness at reducing the bycatch of red snapper and to determine whether it is likely to meet the bycatch reduction criterion. To conduct pre-certification phase evaluations of a prototype BRD, the applicant must apply for, receive, and have on board the vessel during testing, a letter of authorization (LOA) from the RA.

      1. Application

         In order to obtain an LOA to conduct pre-certification phase evaluations of a prototype BRD, an individual must submit a complete application to the RA. A complete application consists of a completed application form, Application to Test A Bycatch Reduction Device in the Exclusive Economic Zone (the form is appended as Appendix J-1), and the following: (1) A brief statement of the purpose and goal of the activity for which the LOA is requested; (2) a statement of the scope, duration, dates, and location of the testing; (3) an 8.5-inch x 11-inch (21.6-cm x 27.9-cm) diagram drawn to scale of the BRD design; (4) an 8.5-inch x 11-inch (21.6-cm x 27.9-cm) diagram drawn to scale of the BRD and approved TED in the shrimp trawl; (5) a description of how the BRD is supposed to work; and (6) a copy of the testing vessel's documentation or its state registration.

         An applicant requesting a pre-certification LOA of an unapproved hard or soft TED as a BRD must first apply for and obtain from the RA an experimental TED authorization pursuant to 50 CFR 227.72(e)(5)(ii). The pre-certification phase LOA application must also append a copy of that authorization.

      2. Issuance

         The RA will review the application for completeness. If the application is incomplete, the RA will inform the applicant of the incompleteness and give the applicant an opportunity to cure. If incompleteness is not cured within 30 days, it will be returned to the applicant. Upon receipt of a complete application, the RA will issue a LOA to conduct pre-certification phase testing upon the vessel specified in the application if the BRD design is substantially unlike BRD designs previously determined not to meet the current performance criterion, or if the design is substantially similar, if the application demonstrates that the design could meet the bycatch reduction criterion through design revision or upon retesting (e.g., the application shows that statistical results could be improved upon retesting by such things as a larger sample size than that previously used). If a pre-certification phase LOA is denied, the RA will return the application to the applicant along with a letter of explanation including relevant recommendations as to curing the deficiencies which caused the denial. In arriving at a decision, the RA may consult with evaluation and oversight personnel. Issuance of a LOA allows the applicant to remove or disable the existing BRD in one net (to create a control net), and to place the prototype BRD in another net in lieu of a certified BRD (to create an experimental net). All other trawls under tow during the test must be equipped with a certified BRD. All trawls under tow during the pre-certification phase tests must be equipped with an approved TED unless operating under an authorization issued pursuant to 50 CFR 227.72(e)(5)(ii). The LOA, and experimental TED authorization if applicable, must be on board the vessel while the pre- certification phase tests are being conducted. The term of the LOA will be 60 days.

      3. Applicability

         The pre-certification phase allows an individual to compare the catches of a control net to the catches of the experimental net (net equipped with the prototype BRD) to estimate the potential efficiency of the prototype BRD. If that individual subsequently applies for a certification phase LOA to test this design he/she must include the results of the pre-certification phase evaluation with the certification application. The RA will use this information to determine if there is a reasonable scientific basis to conduct certification phase testing. Therefore, for each paired tow, the applicant should keep a written record of the weight of the shrimp catch, the weight of the finfish catch, and the total catch (in numbers) of red snapper of each net. The form contained in Appendix D should be used to record this information.

   3. Certification Phase (Required)

      In order to have a BRD certified, it must under certification phase testing, be consistent with requirements of the testing protocol and LOA, and be determined by the RA to meet the bycatch reduction criterion.

      1. Application

         In order to conduct certification phase testing, an individual must obtain a certification phase LOA. In order to obtain a certification phase LOA, an individual must submit a complete application to the RA. The complete test application consists of an Application to Test A Bycatch Reduction Device in the Exclusive Economic Zone (Appendix J-1), a copy of the vessel's current Coast Guard certificate of documentation or, if not documented, its state registration certificate; the name of a qualified observer who will be on board the vessel during all certification test operations (see Appendix I); and a test plan showing: (1) An 8.5-inch x 11-inch (21.6-cm x 27.9-cm) diagram drawn to scale of the BRD candidate; (2) an 8.5-inch x 11-inch (21.6-cm x 27.9- cm) diagram drawn to scale of the BRD candidate and approved TED in the shrimp trawl; (3) a description of how the BRD candidate is supposed to work; (4) the results of previous pre-certification phase tests; (5) the location, time, and area where the certification phase tests would take place; and (6) the identity of the observer from the list of qualified individuals maintained by the RA and certification that the observer has no current or prior financial relationship with the applicant or entity seeking BRD certification.

         An applicant requesting a certification phase LOA to test an unapproved hard or soft TED as a BRD must first apply for and obtain from the RA an experimental TED authorization pursuant to requirements of 50 CFR part

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         227.72(e)(5)(ii). The application for the certification phase LOA also must append a copy of that authorization. A.1 Special Circumstances Not Covered By Protocol

         Because actual testing conditions may vary, it may be necessary to deviate from the prescribed protocol to determine if a BRD candidate meets the bycatch reduction criterion. Any foreseeable deviations from the protocol must be described and justified in the application, and if scientifically acceptable will be approved by the RA in the LOA. The RA may consult with evaluation personnel to determine whether the deviations are scientifically acceptable. Without the RA's approval in the LOA, results from any tests deviating from the protocol may be rejected as scientifically unacceptable, and could result in a denial of certification.

      2. Observer Requirement

         A qualified observer must be on board the vessel during all certification testing operations (See Appendix I). A list of qualified observers is available from the RA. Observers may include employees or individuals acting on behalf of NMFS, state fishery management agencies, universities, or private industry who meet the minimum requirements outlined in Appendix I, but the individual chosen may not have a current or prior financial relationship with the entity seeking BRD certification. It is the responsibility of the applicant to ensure that a qualified observer is on board the vessel during the certification tests. Compensation to the observer, if necessary, must be paid by the applicant. Any change in information or testing circumstances, such as replacement of the observer, would have to be reported to the RA. within 30 days. Under 50 CFR 600.746, the owner and operator of any fishing vessel required to carry an observer as part of a mandatory observer program under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801, et seq.) is required to comply with guidelines, regulations, and conditions to ensure their vessel is adequate and safe to carry an observer, and to allow normal observer functions to collect scientific information as described in this protocol. A vessel owner is deemed to meet this requirement if the vessel displays one of the following: (i) A current Commercial Fishing Vessel Safety Examination decal, issued within the last 2 years, that certifies compliance with regulations found in 33 CFR, chapter I, and 46 CFR, chapter I; (ii) a certificate of compliance issued pursuant to 46 CFR 28.710; or (iii) a valid certificate of inspection pursuant to 46 U.S.C. 3311.

      3. Issuance

         The RA will review the application for completeness. If the application is not complete, the RA will notify the applicant of the incompleteness and give the applicant an opportunity to cure. If the incompleteness is not cured within 30 days, the RA will return the application to the applicant. Upon receipt of a complete application, the RA will issue a LOA to conduct certification phase testing of the BRD candidate specified in the application if: (1) The test plan meets the requirements of the protocol; (2) the qualified observer named in the application has no current or prior financial relationship with the entity seeking BRD certification; (3) the BRD candidate design is substantially unlike BRD designs previously determined not to meet the current bycatch reduction criterion, or if the BRD candidate design is substantially similar, the application demonstrates that the design could meet the bycatch reduction criterion upon retesting (e.g., the application shows that statistical results could be improved upon retesting by such things as a larger sample size than that previously used); and (4) the results of any pre-certification phase testing conducted indicate a reasonable scientific basis for further testing. The submission of pre-certification phase data to provide a scientific basis for the conduct of certification testing is not an absolute requirement for the issuance of a certification phase LOA. For example, a request to conduct certification phase testing of a minor modification of a certified BRD design would not need to include pre- certification phase data. Similarly, a request for certification phase testing of a previously failed design that under a different test plan (e.g., larger sample sizes) could yield improved statistical results would likewise not need pre-certification phase data. However, pre- certification phase data would normally be needed to establish a reasonable scientific basis for conducting certification phase testing (e.g., that the BRD could meet the certification criterion upon certification testing). In arriving at a decision, the RA may consult with evaluation and oversight personnel. If a LOA to conduct certification phase testing is denied, the RA would provide a letter of explanation to the applicant, together with relevant recommendations to address the deficiencies resulting in the denial. Issuance of a LOA allows the applicant to remove or disable the existing certified BRD in one net (to create a control net) and to place the BRD candidate in another net in lieu of a certified BRD (to create an experimental net). All other trawls under tow during the tests must be equipped with a BRD. All trawls under tow during the certification tests must be equipped with an approved TED unless operating under an authorization issued pursuant to 50 CFR 227.72(e)(5)(ii). The LOA will specify the date when the applicant may begin to test the BRD candidate, the observer who will conduct the onboard data collection, and the vessel to be used during the test. The LOA and experimental TED authorization, if applicable, must be onboard the vessel while the certification phase tests are being conducted.

      4. Testing Protocol

         Certification testing must be conducted in areas and at times when commercial shrimp trawling normally occurs, and when juvenile red snapper (age 0 and age 1) are available to the gear. The best time for testing a BRD candidate is July and August (July 1-August 31) due to the availability of red snapper on the penaeid shrimp commercial grounds located shoreward of the 100-fm (183-m) depth contour west of 85 deg.30' W. longitude, the approximate longitude of Cape San Blas, FL. Data should be recorded on the forms found in Appendices B through G, using the instructions provided for each form. D.1. Tuning the Control and Experimental Trawls Prior to BRD Certification Trials

         The primary assumption in assessing the bycatch reduction efficiency of the BRD candidate during paired-net tests is that the inclusion of the BRD candidate in the experimental net is the only factor causing a difference in catch from that of the control net. Therefore, it is imperative that the fishing efficiency of the two nets be as similar as possible prior to starting the certification tests. Catch data from no more than 20 tuning tows should be collected on nets that will be used as control and experimental trawls to determine if there is a between-net or between-side (port vs. starboard) difference in fishing efficiency (bias). Any net/side bias will be reflected as differing catch rates of shrimp and red snapper between two nets that were towed simultaneously. During the tuning tows, these nets should be equipped with identical approved hard TEDs, without the BRD candidate being installed. Using this information, the applicant should

         [[Page 23045]]

         identify and minimize the causes for any net/side bias, to the extent practicable, by making appropriate trawl gear adjustments. Form D-1 from Appendix D should be used to record the net/side bias data collected from these tows. These data will enable the RA to determine if any net/side bias existed in either trawl in assessing the BRD candidate's performance.

         If the applicant is testing a soft TED as a BRD, it will be imperative that little or no position or side bias with the trawl nets be demonstrated before the certification trials are initiated. Once any net/side bias is corrected using identical approved hard TEDs in both nets, any alterations in catch rate following the substitution of the soft TED into the experimental net can then be attributed to that TED's influence. D.2. Retention of Data Collected During Tuning Trials

         All data collected during tuning trials and used for minimizing the net/side bias must be documented and submitted to the RA along with the testing data for evaluation. Additional information on tuning shrimp trawls is available from the Harvesting Technology Branch, Mississippi Laboratories, Pascagoula Facility, 3209 Frederic Street, Pascagoula, Mississippi 39568-1207; phone (601) 762-4591. D.3. Certification Tests

         The certification tests must follow the testing protocol where paired identical trawls are towed by a trawler in areas west of Cape San Blas, Florida, where shrimp and juvenile red snapper occur. For tests of BRD candidates that do not encompass testing a hard or soft TED as the BRD candidate, identical approved hard TEDs are required in each trawl and one of the trawls must be equipped with a functioning BRD candidate. To test a hard of soft TED as a BRD candidate, the control net must be equipped with an approved hard TED, and the experimental net must be equipped with the TED that is acting as the BRD candidate.

         A minimum sample size of 30 successful tows per test is required. Additional tows may be necessary for sufficient statistical evidence, especially if red snapper catch is highly variable. A gear change (i.e., changing nets, doors, or rigging) during a test constitutes the beginning of a new test. All certification tows must be no less than 2 hours and no more than 8 hours in duration. The applicant may select any tow time within this range. Once a tow time is selected, no tow time during a series of tests may vary by more than 10 percent.

         To avoid potential biases associated with trynet catches, the outside trawls on quad-rigged vessels must be used as the control and experimental trawls, and for double-rigged vessels, the use of a trynet is prohibited.

         The functioning BRD candidate must be switched every 4-6 tows (approximately every 2 days) between the two trawl nets. This process must be repeated, ensuring that an equal number of successful tows are made with the BRD candidate employed in both the port and starboard nets, until a minimum of 30 successful tows have been completed. For BRDs incorporated in the codend of the net, this process can be facilitated by the use of zippers, or other quick-connection devices, to more easily move the codends between nets; however, simply switching the entire net will not satisfy this requirement because doing so would not resolve net bias. Such quick-connection devices must be attached behind the TED. The TED must not be moved unless the BRD is actually incorporated into the TED portion of the net. Where a hard TED is being tested as a BRD candidate, that portion of the net including the TEDs must be moved, and again, quick-connection devices located in front of the TEDs may be used.

         A different procedure must be followed to conduct tests of an approved or experimental soft TED as a BRD candidate. To conduct these tests, the applicant must first demonstrate that little or no side/net bias exists between the two nets to be used in the test (see D.1.). Removing the soft TED from one trawl net and installing it in the other net is not required. For these tests, the control (with a hard TED) and experimental (with the soft TED) nets must be disconnected from the doors and their positions switched from one side of the vessel to the other. The first switch must be made after successfully completing approximately 25 percent of the total number of intended tows. This process must be repeated, at 25 percent intervals, until at least 30 successful tows are completed (i.e., every 7-8 successful tows).

         Following each paired tow, the catches from the control and experimental nets must be examined separately. This requires that the catch from each net be kept separate from each other, as well as from the catch taken in other nets fished during that tow. First, the observer must weigh the total catch of each test net (control and experimental nets). If the catch in a net does not fill one standard 1- bushel [ca. 10 gallon] (30 liters) polyethylene shrimp basket (ca. 70 pounds) (31.8 kg), but the tow is otherwise considered successful, data must be collected on the entire catch of that net, and recorded as a ``select'' sample (see Appendix E). If the catch in a net exceeds 70 pounds (31.8 kg), a well-mixed sample consisting of one standard 1- bushel [ca. 10 gallon] (30 liters) polyethylene shrimp basket must be taken from the total catch of that net.

         Data must be collected on Form E-1 for the following species or general groups found in each of the samples: (1) Penaeid shrimp--brown, white and pink shrimp from each sample must be separated by species, counted and weighed; in addition, the weight for those penaeid shrimp species caught in each test net, but that were not included in the sample, must be recorded so that a total shrimp catch for each net (by weight) is documented; (2) crustacea--mantis shrimp, sugar shrimp, seabobs, crabs, lobsters and other similar species--must be weighed as an aggregate; (3) other invertebrates--squid, jellyfish, starfish, sea pansies, shells, and other similar species--must be weighed as an aggregate; (4) each finfish species or species group listed in Appendix E must be weighed and counted; (5) other finfish--including all other fish not listed on the above-referenced form must be weighed as an aggregate; and (6) debris (mud, rocks, and related matter) must be weighed as an aggregate.

         ``Select'' finfish species (page E-3) (i.e., particular species to be quantified from the total catch and not just the sample) are red snapper, Spanish mackerel, and king mackerel. All individuals of the ``Select'' species from each test net (control and experimental net) must be collected, counted, weighed, and recorded. Lengths for as many as 30 individuals of each select species must be recorded on Form F-1. These data are necessary to robustly determine age-class composition, and specific mortality reductions attributable to each of the age classes.

         Applicants must also collect qualitative information, using Form G- 1, on the condition (alive or dead) and fate (floated off, swam down, eaten) of the discards whenever possible, and note the presence of any predator species such as sharks, porpoises, and jacks that are observed. The condition and fate of the bycatch is important for determining the fishing mortality and waste associated with this discard.

      5. Reports

         A report on the BRD candidate test results must be submitted for certification. The report must contain a comprehensive description of the tests, copies of all completed data forms used

         [[Page 23046]]

         during the certification trials, and photographs, drawings, and similar material describing the BRD. The captain or owner must sign and submit the cover form (Appendix A). The report must include a description and explanation of any unforseen deviations from the protocol which occurred during the test. Applicants must provide information on the cost of materials, labor, and installation of the BRD candidate. In addition, any unique or special circumstances of the tests, including special operational characteristics or fishing techniques which enhance the BRD's performance, should be described and documented as appropriate.

      6. Certification

         The RA will determine whether the required reports and supporting materials are sufficient to evaluate the BRD candidate's efficiency. The RA also will determine whether the applicant adhered to the prescribed testing protocol, and whether the BRD candidate meets the bycatch reduction criterion for juvenile red snapper. In arriving at a decision, the RA may consult with evaluation and oversight personnel.

         Final determination of the effectiveness of the BRD candidate will be determined by the RA. The statistical protocol in Appendix H provides the methodology that the RA will use to estimate the reduction in bycatch mortality on age-1 juvenile red snapper if the test is conducted during the primary period (July or August). Tests conducted during other parts of the year will, most likely, catch both age 0 and age 1 red snapper. To evaluate the overall reduction in mortality rate of these juvenile age classes attributable to the BRD candidate will require alternative extensive analysis, involving use of the Goodyear (1995) stock assessment model to assign mortality reductions by specific size classes within the age 0 and age 1 red snapper catch.

         Following a favorable determination of these criteria, the RA will certify the BRD (with any appropriate conditions as indicated by test results) and announce the certification in the Federal Register, via a final rule, technical amendment, amending the list of certified BRDs.

   4. BRDs Not Certified and Resubmission Procedures

      The RA will advise the applicant, in writing, if a BRD is not certified. This notification will explain why the BRD was not certified and what the applicant may do to either modify the BRD or the testing procedures to improve the chances of having the BRD certified in the future. If certification was denied because of insufficient information, the RA will explain what information is lacking. The applicant must provide the additional information within 60 days from receipt of such notification; thereafter, the applicant must re-apply. If the RA subsequently certifies the BRD, the RA will announce the certification in the Federal Register, via a final rule, technical amendment, amending the list of certified BRDs.

   5. Decertification of BRDs

      The RA will decertify a BRD whenever it is determined that it no longer satisfies the bycatch reduction criterion for juvenile red snapper. Before determining whether to decertify a BRD, the Council and public will be advised and provided an opportunity to comment on the advisability of any proposed decertification. 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.

   6. 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 227.72(e)(1):

      ``(i) Any specimen so taken 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 dead or actively moving must be released over the stern of the boat. In addition, they must be released only when trawls are 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 but not dead by:

      (1) Placing the turtle on its back (carapace) and pumping its breastplate (plastron) with hand or foot; or

      (2) Placing the turtle on its breastplate (plastron) and elevating its hindquarter several inches for a period from 1 to 24 hours. The amount of the elevation depends on the size of the turtle; greater elevations are needed for larger turtles. Sea turtles being resuscitated must be shaded and kept wet or moist. Those that revive and become active must be released over the stern of the boat only when trawls are 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. Similarly, sea turtles that fail to move within several hours (up to 24, if possible) must be returned to the water in the same manner.

      (ii) Any specimen so taken must not be consumed, sold, landed, off- loaded, transshipped, or kept below deck.''

      References

      Gulf of Mexico Fishery Management Council, 1997. Amendment 9 to the Fishery Amendment 9 to the Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico, Including a Final Supplemental Environmental Impact Statement and Regulatory Impact Review and Social Impact Assessment. Gulf of Mexico Fishery Management Council, 3018 U.S. Highway 301 North, Suite 1000, Tampa, FL 33619, 153 p.

      Goodyear, C. P.; 1995. Red snappers in U.S. waters of the Gulf of Mexico. National Marine Fisheries Service, Southeast Fisheries Science Center, Miami Laboratory, Miami, FL. Laboratory Report, Contribution # MIA 95/96-05, 171 p.

      Hoese, H. Dickson and Richard H. Moore; 1977. Fishes of the Gulf of Mexico, Texas, Louisiana, and Adjacent Waters. Texas A&M University Press. College Station, TX, 327 p.

      SAFMC; 1997. Final Bycatch Reduction Device Testing Protocol Manual. South Atlantic Fishery Management Council, 1 Southpark Cir., Ste 306, Charleston, S.C. 29407, 34 p.

      Ward, John M., Teofilo Ozuma and Wade Griffen; 1995 Cost and Revenues in the Gulf of Mexico Shrimp Fishery. NOAA Tech. Mem. NMFS- SEFSC-371, 76 p.

      Appendix H Statistical Procedures for Analyzing BRD Evaluation Data

      NMFS will calculate the reduction in bycatch mortality (F) based on data gathered during the testing. Both age 0 and age 1 red snapper, ranging in length from 10 mm to 200 mm, occur frequently in shrimp trawls. During the July/August (July 1-August 31) period, the most recently spawned year class of fish have not fully recruited to the shrimp grounds; thus the catch is represented by a relatively narrow length range of individuals, all of which are considered to be age 1. The numerical reduction in catch-per-unit-effort (CPUE) of this specific age class is expected to be a good predictor of fishing mortality (F) reduction, although the size composition data will be checked for any particular test. The analysis of the data collected under this testing protocol will be based on a modified paired t-test. Because of the varying age and size composition of the red snapper catch taken at other times of the year, more detailed analyses

      [[Page 23047]]

      through use of a stock assessment model (Goodyear 1995) incorporating the size-specific reduction performance of the device and the seasonal progression of F must be conducted to determine if the BRD candidate will meet the bycatch reduction criterion. Based on the time of the year that the test is conducted, NMFS will utilize the appropriate technique to assess the performance of the BRD candidate as a service for the BRD sponsor.

      All experimental tows must be conducted in conformance with the requirements of the BRD testing protocol. Data collected from the no than 20 tuning tows of the control and experimental trawls (without the BRD candidate installed) must be included to determine if any net bias exists prior to beginning certification phase testing. To further reduce problems caused by no or low catches, a tow must contain a minimum catch of 5 red snapper in at least one trawl for inclusion in the analysis. Once conducted, the tow and the corresponding collected data become the permanent part of the record and cannot be discarded. Only the successful tows will count toward the minimum required; however, information from other tows, if appropriate, will be used in the analysis. Statistical Approach for Calculation of Bycatch Mortality (F) Reduction for Devices Tested in July/August

      The statistical approach assumes that the BRD to be tested does not achieve the minimum required reduction rate, (R‹INF›o‹/INF›). The hypotheses to be tested are as follows:

      H‹INF›o‹/INF›: BRD does not achieve the minimum required reduction rate,

      [GRAPHIC] [TIFF OMITTED] TP29AP99.004

      H‹INF›a‹/INF›: BRD does achieve the minimum required reduction rate,

      [GRAPHIC] [TIFF OMITTED] TP29AP99.005

      R denotes the actual reduction rate (unknown), R‹INF›o‹/INF› denotes the minimum required reduction rate, ‹greek-m›‹INF›c‹/INF› denotes the actual mean CPUE with the control, and ‹greek-m›‹INF›b‹/INF› denotes the actual mean CPUE with the BRD.

      With any hypothesis testing, there are two risks involved known as type I error (a true H‹INF›a‹/INF› is rejected as being an H‹INF›o‹/INF›) and type II error (a true H‹INF›o‹/INF› is accepted as being an H‹INF›a‹/INF›). The probabilities of committing these errors are denoted by alpha and beta, respectively. The probabilities are inversely related to each other. As alpha increases, beta decreases and vice versa. An alpha of 10 percent will be used. The two hypotheses are tested using a `modified' paired t-test.

      The CPUE values for the control and BRD trawls for each successful tow is computed first and is used in the following computations:

      [GRAPHIC] [TIFF OMITTED] TP29AP99.006

      where: x is the observed mean CPUE for the control, y is the observed mean CPUE for the BRD, s‹INF›d0‹/INF› is the standard deviation of d‹INF›i‹/INF› = { (1-R‹INF›o‹/INF›)X‹INF›i‹/INF›-Y‹INF›i‹/INF›} values, n is the number of successful tows used in the analysis, and i = 1, 2, . . ., n.

      The H‹INF›o‹/INF› will be rejected if t › t‹INF›alpha,n--1‹/INF› where t‹INF›alpha,n--1‹/INF› denotes the (1-alpha) 100th percentile score in the t distribution with (n-1) degrees of freedom.

      A (1-alpha)100% two-sided confidence interval on R consists of all values of R‹INF›o‹/INF› for which H‹INF›o‹/INF› : R = R‹INF›o‹/INF› (versus H‹INF›a‹/INF› R ‹not-eq› R‹INF›o‹/INF›) cannot be rejected at the level of significance of alpha. One-sided confidence intervals on R could also be computed appropriately.

      Appendix I--Qualifications of Observer

      An observer:

1. Must have a Bachelor's degree in fisheries biology or closely related field from an accredited college, have at least 6 months experience working with a university, college, state fisheries agency, NMFS, or private research organization such as the Gulf and South Atlantic Fisheries Development Foundation as an observer on a trawler (including research trawlers) in the southeast region, or have successfully completed a training course conducted or approved by the Director of the NMFS Southeast Fisheries Science Center.

2. Must not have a current or prior financial relationship with the entity seeking BRD certification. In addition, any individual:

1. Applying to serve as an observer must provide the names, addresses, and telephone numbers of at least three references who can attest to the applicant's background, experiences, and professional ability. These references will be contacted; unsatisfactory references may be a basis for disapproval of an applicant as an observer.

2. Wishing to serve as an observer should submit a resume and supporting documents to the Director, Southeast Fisheries Science Center, 75 Virginia Beach Drive, Miami, FL 33149. The Center will use this information to determine which names will be included on a list of qualified observers. If an applicant is not approved as an observer, the RA will notify the applicant of the disapproval and will provide an explanation for the denial.

   [FR Doc. 99-10634Filed4-28-99; 8:45 am]

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