[Federal Register Volume 64, Number 82 (Thursday, April 29, 1999)]
[Proposed Rules]
[Pages 23039-23047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-10634]
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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.
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SUMMARY: In accordance with the framework procedure for adjusting
management measures of the Fishery Management Plan for the Shrimp
Fishery of the Gulf of Mexico (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
[[Page 23040]]
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
[[Page 23042]]
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.
I. 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
[[Page 23043]]
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.
II. 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.
A. 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.
B. 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.
C. 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.
III. 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.
A. 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
[[Page 23044]]
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.
B. 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.
C. 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.
D. 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.
E. 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.
F. 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.
IV. 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.
V. 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.
VI. 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, (Ro). The
hypotheses to be tested are as follows:
Ho: BRD does not achieve the minimum required reduction
rate,
[GRAPHIC] [TIFF OMITTED] TP29AP99.004
Ha: BRD does achieve the minimum required reduction rate,
[GRAPHIC] [TIFF OMITTED] TP29AP99.005
R denotes the actual reduction rate (unknown), Ro denotes
the minimum required reduction rate, c denotes the
actual mean CPUE with the control, and b denotes
the actual mean CPUE with the BRD.
With any hypothesis testing, there are two risks involved known as
type I error (a true Ha is rejected as being an
Ho) and type II error (a true Ho is accepted as
being an Ha). 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,
sd0 is the standard deviation of di = {
(1-Ro)Xi-Yi} values,
n is the number of successful tows used in the analysis, and
i = 1, 2, . . ., n.
The Ho will be rejected if t > talpha,n--1
where talpha,n--1 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 Ro for which Ho : R = Ro
(versus Ha R Ro) 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. 99-10634 Filed 4-28-99; 8:45 am]
BILLING CODE 3510-22-P
