[Federal Register Volume 62, Number 73 (Wednesday, April 16, 1997)]
[Rules and Regulations]
[Pages 18536-18542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9816]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 961226370-7074-02; I.D. 111896A]
RIN 0648-AI15


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Shrimp Fishery Off the Southern Atlantic States; Amendment 2

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement Amendment 2 to the 
Fishery Management Plan for the Shrimp Fishery of the South Atlantic 
Region (FMP). Amendment 2 adds brown and pink shrimp to the FMP's 
fishery management unit, defines overfishing for brown and pink shrimp, 
defines optimum yield (OY) for brown and pink shrimp, requires the use 
of certified bycatch reduction devices (BRDs) in all penaeid shrimp 
trawls in the exclusive economic zone (EEZ) in the South Atlantic, and 
establishes a framework procedure for adding to the list of certified 
BRDs or modifying their specifications. The intended effects are to 
minimize the bycatch of finfish in shrimp trawling operations in the 
South Atlantic and to implement consistent, and therefore more 
enforceable, Federal and state management measures requiring the use of 
BRDs for reducing finfish bycatch in the penaeid shrimp fishery.

EFFECTIVE DATE: April 21, 1997.


[[Page 18537]]


ADDRESSES: Requests for copies of Amendment 2, which includes a 
regulatory impact review (RIR) and a final supplemental environmental 
impact statement (FSEIS), and the Bycatch Reduction Device Testing 
Protocol Manual may be obtained from the South Atlantic Fishery 
Management Council, One Southpark Circle, Suite 306, Charleston, SC 
29407-4699; Phone: 803-571-4366; Fax: 803-769-4520.

FOR FURTHER INFORMATION CONTACT: Peter J. Eldridge, 813-570-5305.

SUPPLEMENTARY INFORMATION: The FMP was prepared by the South Atlantic 
Fishery Management Council (Council) and is implemented through 
regulations at 50 CFR part 622 under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
    Background on the shrimp fishery off the southern Atlantic states 
and the rationale for the management measures in Amendment 2 were 
contained in the preamble to the proposed rule (62 FR 720, January 6, 
1997) and are not repeated here.
    The availability of Amendment 2 for public comment was announced in 
the Federal Register on November 25, 1996 (61 FR 59856), and comments 
were invited through January 24, 1997. Public comments were invited on 
the proposed rule through February 20, 1997, and on the FSEIS through 
January 21, 1997. After consideration of the comments on the amendment 
and the proposed rule, NMFS approved Amendment 2 on February 24, 1997.
    Comments were received from two fisheries associations, two 
commercial fishermen, two personnel from the Georgia Marine Extension 
Service, the Environmental Protection Agency (EPA), and the Southwest 
Florida Regional Planning Council. The EPA concluded that it has no 
objection to the implementation of the amendment. The Regional Planning 
Council concluded that Amendment 2 was regionally significant and 
consistent with adopted goals, objectives, and policies of its 
Strategic Regional Policy Plan.

Comments and Responses

    Comment: Two fisheries associations, two commercial fishermen, and 
two personnel from the Georgia Marine Extension Service questioned the 
need to reduce bycatch mortality on Spanish mackerel and weakfish. They 
stated that the catch of weakfish and Spanish mackerel amounts to less 
than 1 percent of the total bycatch. Further, they suggest that 
weakfish found off Georgia and Florida may belong to a different stock 
than those found farther north and claim that appropriate management 
measures have been implemented in the northern area to safeguard 
weakfish. They add that Spanish mackerel currently are not overfished.
    Response: Weakfish (Cynoscion regalis) is considered a single stock 
along the Atlantic coast, ranging from Maine to Florida. Weakfish 
populations are overfished--total landings have declined yearly, from 
35,667 mt in 1980 to 3,573 mt in 1994, before increasing slightly in 
1995 to 3,933 mt. In 1995, only 5 percent of the population achieved 
spawning age, far short of the 20 percent or greater needed to sustain 
and rebuild the stock. There has been a severe reduction in the number 
of age classes (age-4 or older) in the population since 1989. 
Recruitment studies indicate that juvenile recruitment was extremely 
low in 1993 and 1994, although recruitment appeared to improve in 1995. 
Even though juvenile weakfish abundance was very low in 1994, the 1994 
weakfish stock assessment estimated that 21.7 million age-0 and 2.4 
million age-1 weakfish were killed in the South Atlantic shrimp trawl 
fishery. The estimate of average annual deaths of juvenile weakfish 
caused by the shrimp trawl fishery since 1979 is 37.3 million age-0 and 
4.3 million age-1 weakfish. The Council, Atlantic States Marine 
Fisheries Commission, and NMFS believe that the weakfish stock is 
severely depressed and that the bycatch mortality caused by the South 
Atlantic shrimp trawl fishery is substantial and must be reduced to 
sustain and rebuild the weakfish resource.
    The 1996 report of the Mackerel Stock Assessment Panel (SAP) noted 
for South Atlantic Spanish mackerel that including bycatch mortality 
data in the assessment would have lowered the median spawning potential 
ratio (SPR) from 29 to 24 percent, and the median estimate of 
acceptable biological catch would have been lowered from 6.0 to 2.6 
million lb (2,722 to 1,179 mt). Although the SAP concluded that the 
Atlantic group of Spanish mackerel is not overfished based on its 
findings and on its current recommended overfishing SPR level (i.e., 
SPR of 20 percent), it is clear that, should bycatch mortality 
continue, the SPR would continue to decrease, which would result in the 
stock becoming overfished. The Council added Spanish mackerel to its 
bycatch reduction effort to prevent the resource from becoming 
overfished.
    National Standard 1 requires that conservation and management 
measures prevent overfishing while achieving, on a continuing basis, 
the OY from each fishery for the U.S. fishing industry. National 
Standard 9 requires that conservation and management measures, to the 
extent practicable, minimize bycatch and, to the extent bycatch cannot 
be avoided, minimize the mortality of such bycatch. Given the 
relatively few ways available to reduce bycatch mortality (e.g., area 
and/or seasonal closures), the Council and NMFS believe that the use of 
BRDs will have the least onerous impact upon shrimp fishermen while 
achieving the goals of Amendment 3 to the Interstate Fishery Management 
Plan for Atlantic Weakfish regarding restoration of the weakfish 
resource and the management objectives of the Fishery Management Plan 
for Coastal Migratory Pelagic Resources of the Gulf of Mexico and South 
Atlantic regarding preventing overfishing of Spanish mackerel.
    Comment: The above commenters stated that the use of turtle 
excluder devices (TEDs) has reduced finfish bycatch substantially and 
that fishermen should be granted a credit for the use of TEDs.
    Response: The decline in abundance of weakfish and the estimates of 
weakfish bycatch mortality were obtained with TED-equipped nets. 
Similarly, the bycatch mortality of Spanish mackerel has occurred, and 
is occurring, with TED-equipped shrimp trawls. It is clear that 
excessive bycatch mortality of weakfish and Spanish mackerel has 
occurred, and is occurring, with TED-equipped shrimp trawls. The 
Council recognized that inconsistent Federal and state bycatch 
regulations would result in unenforceable state regulations and 
preclude effective reduction of bycatch of weakfish and Spanish 
mackerel throughout the range of the species. Amendment 2 was developed 
to complement the required use of BRDs in state waters. The amendment 
allows the use of three state-certified BRDs in Federal waters to 
minimize the impact on fishermen. Also, the amendment establishes a 
procedure to certify new, more efficient BRDs, and encourages their 
development.
    Comment: The commenters claimed that the use of BRDs will result in 
excessive shrimp loss, perhaps as high as 38 percent.
    Response: Eighty-two prototype BRDs were field-tested. Only 24 of 
these advanced to proof-of-concept testing. Only 3 of the 24 have met 
the criteria of reducing bycatch by at least 50 percent with less than 
3 percent shrimp loss. The shrimp loss rate was derived from data 
collected by observers on commercial shrimp trawlers making 
simultaneous tows of trawls with and without BRDs. Some trawlers 
undoubtedly will experience higher loss

[[Page 18538]]

rates if they fail to use the BRDs correctly, while others, depending 
upon fishing conditions, may experience lower rates of loss. Research 
is ongoing to identify factors affecting shrimp loss, so that 
information can be provided to fishermen on ways to better control this 
loss. In addition, Amendment 2 establishes a procedure to certify more 
efficient BRDs when they become available. The Council and NMFS believe 
that the certified BRDs are the best available gear to reduce finfish 
bycatch while minimizing the loss of shrimp.
    Comment: One fisheries association disagrees with the conclusion of 
the Council that Amendment 2 will not have a significant effect on 
small businesses.
    Response: The southern Atlantic states require state-certified BRDs 
to be used in state waters while shrimp trawling. Amendment 2 will 
extend that requirement to Federal waters. Three certified BRDs may be 
used in both state and Federal waters. Since the vast majority of 
shrimp trawling operations occur in both state and Federal waters 
during the same trip, there will be no additional burden on fishermen 
that fish in Federal waters, because they can use the same BRDs that 
are required now for state waters. Amendment 2 complements state BRD 
regulations and enhances enforceability of state regulations by 
requiring similar BRDs for use in Federal waters.
    Approximately 30 million pounds (heads on) of shrimp are harvested 
annually in the South Atlantic area, with an ex-vessel value of some 
$60 million. The use of certified BRDs in all designated shrimp trawls 
in both state and Federal waters of the South Atlantic area would 
likely result in an annual 3 percent reduction in shrimp catch, which 
would amount to 0.9 million pounds. It is estimated that shrimp loss 
from the use of a certified BRD in a shrimp trawl averages 3 percent by 
weight per trawl tow; however, the shrimp that are not retained in each 
trawl tow are still available for harvest by succeeding tows. In the 
worst case scenario, with no recapture of the shrimp comprising the 3 
percent loss per trawl tow, the reduction in annual gross revenues to 
the fishing industry in the South Atlantic area would be between $1.86 
and $2.36 million. The Council's best estimate of the maximum annual 
loss of gross revenues from the application of BRDs in Federal as well 
as state waters is $1.8 million. This revenue loss represents a small 
percentage reduction in gross revenues for the industry. Since shrimp 
trawlers in the South Atlantic area take most of their catch from state 
waters (60 to 80 percent), the adverse economic impacts of this rule, 
requiring BRDs only for shrimp trawls in the EEZ, will represent only a 
portion of the above estimates of fishery-wide impacts.
    Comment: The fisheries association mentioned in the previous 
comment also stated that the biological impact on shrimp stocks caused 
by releasing high percentages of fish species that are shrimp predators 
has not been assessed or evaluated. It recommended that more 
information be obtained before Amendment 2 is approved by the Secretary 
of Commerce.
    Response: There is virtually no information available concerning 
the interactions between predatory fish and shrimp populations in the 
South Atlantic. However, it is well documented that commercial landings 
of shrimp, which vary considerably on an annual basis, have remained 
stable in the South Atlantic for approximately 70 years. Also, the 
decline in weakfish, as shown by commercial landings, has been 
approximately 90 percent from 1980 to 1995; yet, South Atlantic shrimp 
landings in 1980 (29.l million lb (13,200 mt)) were slightly higher 
than those experienced in 1993 (28.3 million lb (8,301 mt)) when 
weakfish commercial landings were at an all-time low. It follows that, 
if abundance of weakfish controlled the abundance of shrimp, shrimp 
landings should have increased dramatically from 1980 through 1995. 
This did not happen; rather, shrimp landings exhibited the same pattern 
that has been observed since the 1920s. The lack of any increase in 
shrimp landings despite a 90-percent decline in commercial landings of 
weakfish, which indicates a similar decline in weakfish abundance, 
suggests that weakfish have little effect upon shrimp abundance. Thus, 
the concern of the fisheries association that an increase in weakfish 
abundance could lead to a significant decline in shrimp landings does 
not appear warranted. Similarly, the abundance of Spanish mackerel has 
varied considerably in the past 20 years with no apparent effect on 
shrimp abundance.

Changes from the Proposed Rule

    The title of Appendix D, which contains the specifications for 
certified BRDs, is revised to be more generic, rather than applicable 
only to the shrimp fishery off the southern Atlantic states. BRDs 
certified for use in the Gulf of Mexico may be added to Appendix D in 
the future.
    The construction and installation requirements for the Fisheye BRD 
(Appendix D to part 622, paragraph C.2.) are clarified. The fisheye is 
required to be located at the top center of the trawl and no farther 
forward of the codend drawstring than 70 percent of the distance 
between the codend drawstring and the forward edge of the codend. NMFS 
is not aware of any current fisheye BRDs that do not meet these 
criteria.

BRD Testing Protocol

    The Council has proposed and NMFS has approved a testing protocol 
for the certification of BRDs. That protocol is published as an 
appendix to this final rule. (The appendix will not appear in the Code 
of Federal Regulations.) Potential testers of BRDs should obtain the 
Bycatch Reduction Device Testing Protocol Manual, which contains the 
testing protocol and additional guidance on the testing of BRDs. The 
manual is available from the Council (see ADDRESSES).

Classification

    The Regional Administrator, Southeast Region, NMFS, with the 
concurrence of the Assistant Administrator for Fisheries, NOAA, 
determined that Amendment 2 is necessary for the conservation and 
management of the shrimp fishery off the southern Atlantic states and 
that it is consistent with the Magnuson-Stevens Act and other 
applicable law.
    This action has been determined to be not significant for purposes 
of E.O. 12866.
    The Council prepared an FSEIS for this amendment. A notice of 
availability of the FSEIS for public comments through January 21, 1997, 
was published on December 20, 1996 (61 FR 67330).
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that the proposed rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities. The reasons for this certification were published in 
the preamble to the proposed rule (62 FR 720, January 6, 1997) and are 
not repeated here. One comment was received regarding this 
certification. It is addressed above under ``Comments and Responses.''
    Currently, Florida, Georgia, North Carolina, and South Carolina, to 
reduce the bycatch of weakfish, require the use by penaeid shrimp 
trawlers in their waters of one of the certified BRDs required by this 
rule for use in the EEZ. The states' BRD requirements are in response 
to state obligations under the Atlantic States Marine Fisheries

[[Page 18539]]

Commission's Interstate Fishery Management Plan for Atlantic Weakfish 
(ISFMP) to reduce shrimp fishery bycatch mortality of juvenile weakfish 
sufficient to allow recovery of this overfished resource.
    Most of the shrimp trawling in the South Atlantic occurs in state 
waters. It is unlikely that a shrimp trawling trip in the South 
Atlantic would be conducted solely in the EEZ. Standard practice for 
shrimp fishermen has been to leave the BRD in the trawl net when 
leaving state waters to pursue shrimp in the EEZ even though there were 
no Federal requirements for BRDs. Removal of a BRD from a trawl would 
require considerable time and effort and disrupt efficient shrimping 
operations. This rule is not expected to have any effects on this 
practice. For these reasons, the requirement for use of a BRD in the 
EEZ should pose little, if any, additional compliance burdens on 
fishermen because their nets are already equipped with BRDs that this 
rule approves for use in Federal waters. The costs associated with 
shrimp loss caused by BRDs are discussed above under ``Comments and 
Responses'' and are not expected to be significant.
    In support of the ISFMP and as a complement to state BRD measures, 
this rule will enhance the states' ability to enforce their BRD 
requirements and will provide direct and biologically important 
benefits from reducing bycatch mortality of weakfish in the EEZ. The 
finfish conservation objectives of Amendment 2 and this rule were 
discussed in the preamble of the proposed rule and are not elaborated 
upon here. NMFS is concerned that if the rule does not become effective 
without delay, major quantities of juvenile weakfish taken as bycatch 
in the shrimp trawl fishery will have significant adverse effects on 
weakfish populations and fisheries even outside of the South Atlantic 
Bight area. The South Atlantic states have made major advances in their 
own requirements for BRDs to reduce weakfish bycatch, but without 
similar restrictions in Federal waters as soon as possible, the 
effectiveness of state BRD enforcement efforts will be seriously 
jeopardized.
    For the reasons above, the Assistant Administrator for Fisheries, 
NOAA, finds that, pursuant to 5 U.S.C. 553(d)(3), good cause exists to 
waive the general requirement of the Administrative Procedure Act to 
delay for 30 days the effective date of this rule. Instead, NMFS will 
delay the effectiveness of this rule for 3 days after its publication 
in the Federal Register, during which time NMFS intends to notify all 
state fishery management agencies as well as affected fishermen of the 
BRD-related requirements of this rule.

List of Subjects in 50 CFR Part 622

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

    Dated: April 10, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

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

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

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

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

    2. In Sec. 622.2, definitions for ``BRD'', ``Headrope length'', 
``Penaeid shrimp trawler'', and ``Try net'' are added in alphabetical 
order to read as follows:


Sec. 622.2  Definitions and acronyms.

* * * * *
    BRD means bycatch reduction device.
* * * * *
    Headrope length means the distance, measured along the forwardmost 
webbing of a trawl net, between the points at which the upper lip (top 
edge) of the mouth of the net are attached to sleds, doors, or other 
devices that spread the net.
* * * * *
    Penaeid shrimp trawler means any vessel that is equipped with one 
or more trawl nets whose on-board or landed catch of brown, pink, or 
white shrimp (penaeid shrimp) is more than 1 percent, by weight, of all 
fish comprising its on-board or landed catch.
* * * * *
    Try net, also called test net, means a net pulled for brief periods 
by a shrimp trawler to test for shrimp concentrations or determine 
fishing conditions (e.g., presence or absence of bottom debris, 
jellyfish, bycatch, seagrasses).
* * * * *
    3. In Sec. 622.41, paragraph (g) is added to read as follows:


Sec. 622.41  Species specific limitations.

* * * * *
    (g) Shrimp in the South Atlantic--(1) BRD requirement. On a penaeid 
shrimp trawler in the South Atlantic EEZ, each trawl net that is rigged 
for fishing and has a mesh size less than 2.50 inches (6.35 cm), as 
measured between the centers of opposite knots when pulled taut, and 
each try net that is rigged for fishing and has a headrope length 
longer than 16.0 ft (4.9 m), must have a certified BRD installed. A 
trawl net, or try net, is rigged for fishing if it is in the water, or 
if it is shackled, tied, or otherwise connected to a sled, door, or 
other device that spreads the net, or to a tow rope, cable, pole, or 
extension, either on board or attached to a shrimp trawler.
    (2) Certified BRDs. The following BRDs are certified for use by 
penaeid shrimp trawlers in the South Atlantic EEZ. Specifications of 
these certified BRDs are contained in Appendix D of this part.
    (i) Extended funnel.
    (ii) Expanded mesh.
    (iii) Fisheye.
    4. In Sec. 622.48, paragraph (h) is added to read as follows:


Sec. 622.48  Adjustment of management measures.

* * * * *
    (h) South Atlantic shrimp. Certified BRDs and BRD specifications.
    5. Appendix D is added to part 622 to read as follows:

Appendix D to Part 622--Specifications for Certified BRDs

    A. Extended Funnel.
    1. Description. The extended funnel BRD consists of an extension 
with large-mesh webbing in the center (the large-mesh escape section) 
and small-mesh webbing on each end held open by a semi-rigid hoop. A 
funnel of small-mesh webbing is placed inside the extension to form a 
passage for shrimp to the codend. It also creates an area of reduced 
water flow to allow for fish escapement through the large mesh. One 
side of the funnel is extended vertically to form a lead panel and area 
of reduced water flow. There are two sizes of extended funnel BRDs, a 
standard size and an inshore size for small trawls.
    2. Minimum Construction and Installation Requirements for Standard 
Size.
    (a) Extension Material. The small-mesh sections used on both sides 
of the large-mesh escape section are constructed of 1\5/8\ inch (4.13 
cm), No. 30 stretched mesh, nylon webbing. The front section is 120 
meshes around by 6\1/2\ meshes deep. The back section is 120 meshes 
around by 23 meshes deep.
    (b) Large-Mesh Escape Section. The large-mesh escape section is 
constructed of 8 to 10 inch (20.3 to 25.4 cm), stretched mesh, webbing. 
This section is cut on the bar to form a section that is 15 inches 
(38.1 cm) in length by 95 inches (241.3 cm) in circumference. The 
leading edge is attached to the 6\1/2\-mesh extension section and the 
rear edge is

[[Page 18540]]

attached to the 23-mesh extension section.
    (c) Funnel. The funnel is constructed of 1\1/2\ inch (3.81 cm), 
stretched mesh, No. 30 depth-stretched and heat-set polyethylene 
webbing. The circumference of the leading edge is 120 meshes and the 
back edge is 78 meshes. The short side of the funnel is 34 to 36 inches 
(86.4 to 91.4 cm) long and the opposite side of the funnel extends an 
additional 22 to 24 inches (55.9 to 61.0 cm). The circumference of the 
leading edge of the funnel is attached to the forward small-mesh 
section three meshes forward of the large-mesh escape section and is 
evenly sewn, mesh for mesh, to the small-mesh section. The after edge 
of the funnel is attached to the after small-mesh section at its top 
and bottom eight meshes back from the large-mesh escape panel. Seven 
meshes of the top and seven meshes of the bottom of the funnel are 
attached to eight meshes at the top and bottom of the small-mesh 
section, such eight meshes being located immediately adjacent to the 
top and bottom centers of the small-mesh section on the side of the 
funnel's extended side. The extended side of the funnel is sewn at its 
top and bottom to the top and bottom of the small-mesh section, 
extending at an angle toward the top and bottom centers of the small-
mesh section.
    (d) Semi-Rigid Hoop. A 30-inch (76.2-cm) diameter hoop constructed 
of plastic-coated trawl cable, swaged together with a \3/8\-inch (9.53-
mm) micropress sleeve, is installed five meshes behind the trailing 
edge of the large-mesh escape section. The extension webbing must be 
laced to the ring around the entire circumference and must be equally 
distributed on the hoop, that is, 30 meshes must be evenly attached to 
each quadrant.
    (e) Installation. The extended funnel BRD is attached 8 inches 
(20.3 cm) behind the posterior edge of the TED. If it is attached 
behind a soft TED, a second semi-rigid hoop, as prescribed in paragraph 
A.2.(d), must be installed in the front section of the BRD extension 
webbing at the leading edge of the funnel. The codend of the trawl net 
is attached to the trailing edge of the BRD.
    3. Minimum Construction and Installation Requirements for Inshore 
Size.
    (a) Extension Material. The small-mesh sections used on both sides 
of the large-mesh escape section are constructed of 1\3/8\ inch (3.5 
cm), No. 18 stretched mesh, nylon webbing. The front section is 120 
meshes around by 6\1/2\ meshes deep. The back section is 120 meshes 
around by 23 meshes deep.
    (b) Large-Mesh Escape Section. The large-mesh escape section is 
constructed of 8 to 10 inch (20.3 to 25.4 cm), stretched mesh, webbing. 
This section is cut on the bar to form a section that is 15 inches 
(38.1 cm) by 75 inches (190.5 cm) in circumference. The leading edge is 
attached to the 6\1/2\-mesh extension section and the rear edge is 
attached to the 23-mesh extension section.
    (c) Funnel. The funnel is constructed of 1\3/8\ inch (3.5 cm), 
stretched mesh, No. 18 depth-stretched and heat-set polyethylene 
webbing. The circumference of the leading edge is 120 meshes and the 
back edge is 78 meshes. The short side of the funnel is 30 to 32 inches 
(76.2 to 81.3 cm) long and the opposite side of the funnel extends an 
additional 20 to 22 inches (50.8 to 55.9 cm). The circumference of the 
leading edge of the funnel is attached to the forward small-mesh 
section three meshes forward of the large-mesh escape section and is 
evenly sewn, mesh for mesh, to the small-mesh section. The after edge 
of the funnel is attached to the after small-mesh section at its top 
and bottom eight meshes back from the large-mesh escape panel. Seven 
meshes of the top and seven meshes of the bottom of the funnel are 
attached to eight meshes at the top and bottom of the small-mesh 
section, such eight meshes being located immediately adjacent to the 
top and bottom centers of the small-mesh section on the side of the 
funnel's extended side. The extended side of the funnel is sewn at its 
top and bottom to the top and bottom of the small-mesh section, 
extending at an angle toward the top and bottom centers of the small-
mesh section.
    (d) Semi-Rigid Hoop. A 24-inch (61.0-cm) diameter hoop constructed 
of plastic-coated trawl cable, swaged together with a \3/8\-inch (9.53-
mm) micropress sleeve, is installed five meshes behind the trailing 
edge of the large mesh section. The extension webbing must be laced to 
the ring around the entire circumference and must be equally 
distributed on the hoop, that is, 30 meshes must be evenly attached to 
each quadrant.
    (e) Installation. The extended funnel BRD is attached 8 inches 
(20.3 cm) behind the posterior edge of the TED. If it is attached 
behind a soft TED, a second semi-rigid hoop, as prescribed in paragraph 
A.3.(d), must be installed in the front section of the BRD extension 
webbing at the leading edge of the funnel. The codend of the trawl net 
is attached to the trailing edge of the BRD.
    B. Expanded Mesh. The expanded mesh BRD is constructed and 
installed exactly the same as the standard size extended funnel BRD, 
except that one side of the funnel is not extended to form a lead 
panel.
    C. Fisheye.
    1. Description. The fisheye BRD is a cone-shaped rigid frame 
constructed from aluminum or steel rod of at least \1/4\ inch diameter, 
which is inserted into the codend to form an escape opening. Fisheyes 
of several different shapes and sizes have been tested in different 
positions in the codend.
    2. Minimum Construction and Installation Requirements. The fisheye 
has a minimum opening dimension of 5 inches (12.7 cm) and a minimum 
total opening area of 36 square inches (91.4 square cm). The fisheye 
must be installed at the top center of the codend of the trawl to 
create an opening in the trawl facing in the direction of the mouth of 
the trawl no further forward than 11 ft (3.4 m) from the codend 
drawstring (tie-off rings) or 70 percent of the distance between the 
codend drawstring and the forward edge of the codend, excluding any 
extension, whichever is the shorter distance.

     The Testing Protocol for BRD Certification is published as an 
appendix to this document.

Appendix--Testing Protocol for BRD Certification

    Note: This appendix will not appear in the Code of Federal 
Regulations.

Introduction

    The development of a bycatch reduction device (BRD) testing 
protocol is mandated in Amendment 2 to the Fishery Management Plan 
for the Shrimp Fishery of the South Atlantic Region. A ``BRD'' is 
defined as any device, trawl modification, or a combination of 
devices (e.g., BRD/TED combination) which reduces finfish bycatch 
when compared to an unmodified ``standard'' trawl. This BRD testing 
protocol was developed based on the deliberations of the South 
Atlantic Fishery Management Council's Ad Hoc BRD Advisory Panel and 
Scientific and Statistical Committee. This protocol specifies 
minimum data requirements, outlines a basic experimental design, and 
specifies a statistical technique for testing and analyzing new or 
modified BRDs.
    This protocol is to be used by the states and researchers 
testing the effectiveness of any new or modified BRD in reducing 
bycatch of target species as specified by the South Atlantic Fishery 
Management Council (Council). The target species currently specified 
by the Council are Spanish mackerel and weakfish.
    This testing protocol is designed for researchers conducting 
discrete testing programs (i.e., testing one BRD design to determine 
reduction performance so that it can be certified for use in the 
South Atlantic EEZ). The protocol is also designed to minimize the 
cost of testing while ensuring adequate sampling is completed to 
evaluate if the new gear achieves the desired

[[Page 18541]]

reduction of target species. The Council is requiring that new 
bycatch reduction devices reduce bycatch by 40 percent in number, of 
both target species, Spanish mackerel and weakfish. This protocol 
establishes a basic experimental design that a researcher must 
follow to increase the likelihood of certification of a new or 
modified BRD. The analysis of the data under this testing protocol 
will be based on a modified paired t-test (see Statistical 
Procedures for Analyzing BRD Evaluation Data, below). A 95-percent 
confidence interval should be calculated for the reduction estimate. 
The experimental design is therefore based on using paired 
comparisons of the BRD and control gear operating in commercial 
conditions. Tow times, time of day, and fishing techniques should 
simulate commercial fishing conditions. Consistent tow times are 
required in a given series of tows that constitute a test for an 
individual BRD. However, a window around a specific tow time is 
allowed (plus or minus 10 percent of tow time). Researchers must 
pre-tune the trawl gear to identify and eliminate bias between nets 
(e.g., make tows before placing experimental gear in the net to 
determine and compensate for bias, if necessary). A minimum sample 
size of 30 successful tows is required. However, additional tows may 
be needed to attain an adequate sample for statistical testing.
    The total catch, total finfish catch, and total shrimp catch 
must be recorded. This will provide shrimpers with information on 
shrimp retention and whether the tow is acceptable for analysis. All 
target species (currently Spanish mackerel and weakfish, others to 
be addressed through the framework procedure) will be counted, 
weighed as a species lot, and individuals will be measured. This 
complete work-up of these species will provide absolute numbers to 
determine percent reduction and age-class composition.
    During testing, the trawls, rigging, BRD, and TED types must be 
standardized. The BRD must be rotated between outside nets on 
opposite sides to reduce net bias and increase the probability of 
collecting a valid sample. Specifying these basic parameters in the 
experimental design for testing new or modified BRDs should reduce 
statistical problems by standardizing data. If the gear is modified 
during the testing, it constitutes the beginning of a new test.
    In order to reduce error, testing should be accomplished with at 
least the minimum number of tows of a net with an experimental BRD 
and certified TED compared to a net with only the same type of TED. 
Testing should also be done in an area where, and at a time when, 
shrimp are commercially harvested and the catch of target species is 
likely. Researchers should refer to information presented in the 
Bycatch Reduction Device Testing Protocol Manual for guidance on the 
occurrence and the bycatch of weakfish and Spanish mackerel. If 
catches of shrimp do not approximate commercial harvest levels or 
target species are not abundant, additional tows may be necessary.
    Amendment 2 established responsibility of the researchers 
testing BRDs to also develop information on shrimp retention 
attributable to the new gear. The intent of this requirement is to 
ensure that fishermen who consider using any new BRDs will know what 
level of shrimp retention has been observed during testing of a 
particular device. The fisherman has the opportunity to weigh the 
benefits of using a gear with a specified shrimp retention against 
the new gear's ability to reduce large quantities of other unwanted 
bycatch. This protocol will ensure that new gear achieves desired 
bycatch reduction while minimizing time needed to test and certify a 
bycatch reduction device for use in the South Atlantic EEZ. This 
protocol was developed specifically for collection of the target 
species (at this time Spanish mackerel and weakfish) to determine 
the effectiveness of a new or modified BRD in achieving the targeted 
reduction as specified by the Council (40 percent in number of 
weakfish and 40 percent in number of Spanish mackerel).

BRD Certification and Development of This Testing Protocol

    The Council is providing a timely and effective certification 
process that will be in place in conjunction with Shrimp Amendment 
2, that affords industry the chance to use conservation engineering 
in the development of new or modified BRDs. The Regional 
Administrator, Southeast Region, NMFS (RA), is responsible for 
review and certification of BRDs for use in the South Atlantic EEZ.
    A BRD will be certified through public notice in the Federal 
Register if the RA determines that it meets the certification 
criteria and testing protocol specified by the Council. This process 
will lead to faster processing of BRD certification applications. 
Pursuant to Amendment 2, a state fishery management agency, a 
university, and other scientific investigators can work with shrimp 
fishermen and others in developing and testing BRDs for 
certification. BRDs reviewed and recommended by state agencies and 
that meet the criteria and testing protocol specified in Amendment 2 
may be used throughout the South Atlantic EEZ when certified by 
NMFS.
    The RA will consider the following factors when certifying BRDs 
for use in the South Atlantic EEZ. These factors include bycatch 
reduction performance, as well as adherence to the BRD testing 
protocol. The RA will certify new BRDs for use throughout the South 
Atlantic EEZ if the BRD reduces the bycatch component of fishing 
mortality for Spanish mackerel and weakfish by 50 percent or 
demonstrates a 40-percent reduction in number of each of these 
species, and the researcher has complied with testing parameters of 
the Council's BRD testing protocol.

Basic Provisions of the BRD Testing Protocol Specified in Shrimp 
Amendment 2

    All tests must be conducted in accordance with state or Federal 
laws. An applicant planning to use shrimp trawls for testing that do 
not have legally approved and fully operational TEDs installed, 
regardless of where the testing is to take place, must obtain a 
special permit from NMFS, as authorized under the sea turtle 
conservation regulations.
    The certification tests will follow a standardized testing 
protocol where paired identical trawls are towed by a trawler in 
areas expected to contain concentrations of shrimp and the target 
species or species groups. One of the identical trawls will contain 
the test BRD, while the other is the control. The experimental gear 
must be rotated daily, at a minimum, to ensure that any positioning 
bias is eliminated. Identical TEDs are required in each of the 
trawls unless other arrangements have been made through the RA. 
Consistent tow times are required in a given series of tows that 
constitute a test for an individual BRD. However, a nominal overage/
underage window around a specific tow time is allowed (plus or minus 
10 percent of tow time). The contents of each trawl will be 
separated and sorted following each paired tow. Shrimp, total 
finfish, and total catch will be weighed. A basket (70-80 lb) (31.8-
36.3 kg) subsample will be weighed and sorted to obtain a percentage 
of finfish in the subsample. The percentage of finfish in the 
subsample will be used to estimate the total finfish in the catch. 
All target finfish species (currently Spanish mackerel and weakfish) 
will be weighed as a species lot, and individuals counted and length 
measured. Information on other important species is required (total 
weight and total numbers of individual species in subsample to 
estimate total weight and total numbers in catch). Important species 
for which information is required are seatrouts (weakfish, spotted, 
and silver), Spanish mackerel, king mackerel, cobia, gag, seabasses 
(black, bank, and rock), spot, croaker, red drum, black drum, 
pompano, kingfishes (southern and northern), flounders (southern and 
summer), bluefish, scup, juvenile sharks, sturgeon, shad, and sea 
turtles (take only measurements that can be taken without harming 
turtles). All certification tests must be conducted with a state or 
NMFS approved observer on the trawler. These observers can be from 
NMFS, state fishery management agencies, universities, or private 
industry. It is the responsibility of the applicant, or his agent, 
conducting the certification tests to ensure that a qualified 
observer is on board during the tests. Compensation, if necessary, 
will be paid by the applicant, or his agent.

Summary of BRD Testing Experimental Design and Basic Data 
Requirements

    <bullet> The tests should use paired comparisons where one net 
is equipped with the new BRD design and the second net is a control 
net.
    <bullet> Bycatch reduction will be computed using a ratio method 
(catch per unit effort (CPUE) or numbers).
    <bullet> The burden of proof is on the industry to verify that a 
new BRD achieves the minimum required reduction rate.
    <bullet> Both nets are to pull identical certified TEDs during 
the sampling.
    <bullet> Experimental gear should be rotated daily between 
outboard/outside nets, at a minimum.
    <bullet> The total catch, total finfish, total shrimp, and total 
target species weight must be recorded. A basket (70-80 lb) (31.8-
36.3 kg) subsample will be weighed and sorted to obtain a percentage 
of finfish in the

[[Page 18542]]

subsample. The percentage of finfish in the subsample will be used 
to estimate the total finfish in the catch.
    <bullet> Target species (weakfish and Spanish mackerel) must be 
weighed as a species lot, and each individual counted and length 
measured. For large catches, a subsample of selected individuals for 
each age-class shall be measured.
    <bullet> Information must be obtained on other important species 
(collect total weight and total numbers of individual species in 
subsample to estimate total weight and total numbers in catch). 
(Species list: Seatrouts (weakfish, spotted, and silver), Spanish 
mackerel, king mackerel, cobia, gag, seabasses (black, bank, and 
rock), spot, croaker, red drum, black drum, pompano, kingfishes 
(southern and northern), flounders (southern and summer), bluefish, 
scup, juvenile sharks, sturgeon, shad, and sea turtles (take only 
measurements that can be taken without harming turtles).)
    <bullet> A modified paired t-test is the statistical technique 
to be used for analyzing the data.
    <bullet> A minimum of 30 successful tows are required to test a 
new or modified gear.
    <bullet> A minimum catch (fish per tow) of five weakfish and/or 
one Spanish mackerel is required to qualify as a successful tow.
    <bullet> Tow times, time of day, catch rates, and fishing 
techniques should be comparable to commercial operations.
    <bullet> Consistent tow times are required in a given series of 
tows that constitute a test for an individual BRD. A nominal time 
window (plus or minus 10 percent of tow time) around a specific tow 
time is allowed.
    <bullet> Basic operational cost differences should be recorded.
    <bullet> Shrimp retention must be recorded.

Statistical Procedures for Analyzing BRD Evaluation Data

    All experimental tows must be conducted strictly under the 
guidelines specified under the BRD testing protocol. To reduce 
problems caused by no or low catches, a tow must contain a minimum 
catch of five weakfish and/or one Spanish mackerel in at least one 
net for inclusion in the analysis. Once conducted, the tow (and the 
corresponding data) become the permanent part of the record and 
cannot be discarded. Only the successful tows (meeting the minimum 
catch and other requirements) will count toward the minimum 
required, however all tows will be used in the analysis.

Statistical Approach

    You should start with the assumption that the BRD to be tested 
does not achieve the minimum required reduction rate, say R<INF>o. 
This assumption will be accepted if the data provide sufficient 
evidence to do so. Hence, the hypotheses to be tested are as 
follows:

H<INF>o: BRD does not achieve the minimum required reduction rate,
[GRAPHIC] [TIFF OMITTED] TR16AP97.000

Ha : BRD does achieve the minimum required reduction rate,
[GRAPHIC] [TIFF OMITTED] TR16AP97.001

    Here R denotes the actual reduction rate (unknown), R<INF>o 
denotes the minimum required reduction rate, <greek-m><INF>c denotes 
the actual mean CPUE with the control, and <greek-m><INF>b denotes 
the actual mean CPUE with the BRD.
    With any hypothesis testing, there are two risks involved, known 
as type I error (rejecting the true H<INF>o) and type II error 
(accepting a false H<INF>o). The probabilities of committing these 
errors are denoted by alpha and beta, respectively, and those are 
inversely related to each other. As alpha increases, beta decreases, 
and vice versa. The above test will be conducted with an alpha to be 
specified by the RA. The above hypotheses should be tested using a 
``modified'' paired t-test.
    The CPUE values for the control and BRD nets for each successful 
tow should be computed first and these will be used in the following 
computations. The test statistic to be used is given by:
[GRAPHIC] [TIFF OMITTED] TR16AP97.002

Where:

x is the observed mean CPUE for the control,
y is the observed mean CPUE for the BRD,
s<INF>d0 is the standard deviation of d<INF>i= (1--R<INF>o)xi--yi  
values,
n is the number of successful tows used in the analysis, and i=
1,2, . . ., n.

    The H<INF>o will be rejected if t > -t<INF>alpha, n-1, where 
t<INF>alpha, n-1 denotes the (1--alpha) 100<SUP>th percentile score 
in the t distribution with (n--1) degrees of freedom.
    The computation of beta (for various assumed reduction rates, 
R<INF>1 < R<INF>0) is somewhat involved and requires the knowledge 
of unknown parameters (or at least good estimates) of 
<greek-m><INF>c and alpha<SUP>2<INF>d0. Note that alpha<SUP>2<INF>d0 
is dependent on the R<INF>o specified (under H<INF>0) and equals:
    (1--R<INF>o)<SUP>2 alpha<SUP>2<INF>xi + alpha<SUP>2<INF>yi--
2(1--R<INF>o)p <bullet> alpha<INF>xi <bullet> alpha<INF>yi, where p 
is the population correlation coefficient between x<INF>i and 
y<INF>i values.
    The computation of beta in advance (in the absence of any 
preliminary data, i.e., without good parameter estimates) is almost 
impossible. More work in this direction is still needed. However, it 
is clear that beta could be reduced by increasing alpha or n or 
both.
    A (1--alpha) 100-percent two-sided confidence interval on R 
consists of all values of R<INF>o for which
    Ho: R = R<INF>o (versus H<diffl>R <not-eq>R<INF>o) cannot be 
rejected at the level of significance of alpha. One-sided confidence 
intervals on R could also be computed appropriately.

[FR Doc. 97-9816 Filed 4-15-97; 8:45 am]
BILLING CODE 3510-22-P