[Federal Register Volume 63, Number 106 (Wednesday, June 3, 1998)]
[Proposed Rules]
[Pages 30174-30176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-14593]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 980427104-8104-01; I.D. 072897B]
RIN 0648-AK29


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Shrimp Fishery Off the Southern Atlantic States; 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: NMFS issues this proposed rule to prescribe additional 
procedures for the testing and certification of bycatch reduction 
devices (BRDs) for use in penaeid shrimp trawls in the exclusive 
economic zone (EEZ) in the South Atlantic. The use of BRDs in all such 
trawls became mandatory under the final rule implementing Amendment 2 
to the Fishery Management Plan for the Shrimp Fishery of the South 
Atlantic Region (FMP). In addition, the proposed rule would add a 
paragraph to the Testing Protocol for BRD Certification providing 
details on the additional testing and certification procedures. The 
proposed rule also would add four measures to the list of measures that 
may be implemented or modified through the framework procedures 
contained in Amendment 2 for adjusting management measures. The 
additional testing and certification procedures that would be 
prescribed by the proposed rule should foster the development of 
alternative BRDs that meet the bycatch reduction criterion for Spanish 
mackerel and weakfish, while minimizing inconvenience to fishermen and/
or loss of shrimp. The addition of management measures that may be 
adjusted via the framework procedures is intended to enhance the 
ability of the South Atlantic Fishery Management Council (Council) and 
NMFS to react in a timely manner to changes in the fishery or to new 
data.

DATES: Written comments must be received on or before July 6, 1998.

ADDRESSES: Comments on the proposed rule must be sent to the Southeast 
Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, 
FL 33702.
    Comments regarding the collection-of-information requirement 
contained in this rule should be sent to Edward E. Burgess, Southeast 
Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, 
FL 33702, 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 Bycatch Reduction Device Testing 
Protocol Manual, should be sent to 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 shrimp fishery in the EEZ of the South 
Atlantic is managed under the FMP. The FMP was prepared by the Council 
and is implemented through regulations issued under the authority of 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) at 50 CFR part 622.
    The availability of Amendment 2 to the FMP was announced in the 
Federal Register on November 25, 1996 (61 FR 59856). The final rule 
implementing Amendment 2 to the FMP (62 FR 18536, April 16, 1997) 
requires the use of certified BRDs in all penaeid shrimp trawls in the 
EEZ in the South Atlantic, identifies the three BRDs certified by NMFS 
for such use, and sets forth administrative procedures and a testing 
protocol for certifying additional BRDs meeting Amendment 2's bycatch 
reduction criterion for Spanish mackerel and weakfish. The criterion 
for certification of a BRD for use in shrimp trawls in the South 
Atlantic EEZ is a reduction of at least 40 percent in the number of 
weakfish and Spanish mackerel caught incidentally in shrimp trawls or a 
reduction of at least 50 percent in the bycatch component of fishing 
mortality for Spanish mackerel and weakfish. The Testing Protocol for 
BRD Certification was published as an uncodified appendix to the final 
rule, and was corrected on September 4, 1997 (62 FR 46679). This rule 
proposes to establish additional testing and certification procedures 
and to add a paragraph to the Testing Protocol for BRD Certification 
regarding those

[[Page 30175]]

procedures. Specifically, this rule would require a person seeking 
certification of a BRD for use in shrimp trawls in the South Atlantic 
EEZ to apply for and obtain a letter of authorization from the Regional 
Administrator, Southeast Region, NMFS (Regional Administrator) before 
conducting any tests in the EEZ, to test the BRD in accordance with the 
Testing Protocol for BRD Certification, and to submit the test results 
to the Regional Administrator. The paragraph that would be added to the 
Testing Protocol for BRD Certification would require notification of 
state directors where appropriate and would add details regarding the 
application and letter of authorization process.
    The existing Testing Protocol for BRD Certification describes the 
background and rationale for BRD testing, details basic testing 
procedures, requires that all tests be conducted with an approved 
observer onboard, specifies the type of data to be collected, and 
describes the statistical procedures and approach for analyzing the 
data. The Testing Protocol for BRD Certification requires that a trawl 
fitted with a BRD and a trawl without a BRD be towed simultaneously 
under commercial conditions and that the total catch, finfish catch, 
and shrimp catch from each trawl be compared. The Testing Protocol for 
BRD Certification requires that tow times, time of day, and fishing 
techniques simulate commercial fishing conditions. A minimum sample 
size of 30 successful tows is required. A successful tow is defined as 
one in which at least five weakfish or one Spanish mackerel are caught, 
regardless of which trawl they were caught in. Additional tows may be 
needed to obtain an adequate statistical sample. Data collected under 
the Testing Protocol for BRD Certification is analyzed using a modified 
paired t-test, which is a method for determining whether the average of 
two sets of observations is significantly different, especially with 
small sampling sizes. A 95-percent confidence interval must be 
calculated for the bycatch reduction estimate.
    The Testing Protocol for BRD Certification as well as standardized 
forms for describing the tests and reporting their results have been 
included in a Bycatch Reduction Testing Protocol Manual (Manual) 
available from NMFS (see ADDRESSES). Appendices to the Manual contain 
data entry codes, illustrations of fish measurements, statistical 
reporting zones, proper techniques for statistical analyses, 
illustrations of key species, and other information concerning the 
proper conduct of testing, including data management instructions. 
Additional details are contained in the Manual.
    Amendment 2 contains framework procedures for establishing or 
modifying specified types of management measures. The procedures for 
certifying BRDs and publishing their specifications was discussed in 
the preamble to the initial proposed rule (62 FR 720, January 6, 1997) 
and is not repeated here. In this rule, NMFS proposes to add at 50 CFR 
622.48(h) four other measures listed in Amendment 2 that may be 
established or modified in accordance with the FMP's framework 
procedures: the BRD certification criteria, the BRD testing protocol, 
nets required to use BRDs, and times and locations for the required use 
of BRDs. The procedures for establishing or modifying these four 
measures are set forth in Amendment 2 and require that changes be 
initiated by the Council's BRD Advisory Panel, reviewed by the Council 
and its Science and Statistical Committee, discussed at a public 
hearing, submitted for the Regional Administrator's concurrence that 
they are consistent with the FMP and the Magnuson-Stevens Act, and 
published as proposed and final rules.

Classification

    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    The Assistant General Counsel for Legislation and 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:

    Testing of BRDs is expected to be undertaken by state agencies 
of Georgia, North Carolina and South Carolina, by the University of 
Georgia, and by owners of vessels that harvest shrimp in South 
Atlantic waters. The state agencies and the University of Georgia 
are not small entities.
    For the 1994 fishing season, about 1,400 large shrimp vessels 
were licensed in Florida, Georgia, North Carolina and South 
Carolina. In addition, there were probably 1,000 or more small 
vessels that have a significant dependence on shrimp trawling off 
these states, mostly in North Carolina waters. These entities are 
considered small entities for purposes of the Regulatory Flexibility 
Act.
    Although owners of shrimp vessels who voluntarily conduct BRD 
certification testing can be expected to incur significant costs, 
less than 1 percent of such owners are expected to attempt to 
certify new BRDs. Accordingly, the provisions for BRD certification 
would not have a significant economic impact on a substantial number 
of small entities.
    The addition of measures that may be established or modified in 
accordance with the framework procedures would have no economic 
impacts. The economic impacts on small entities of any measures that 
would be proposed for establishment or modification under the 
framework procedures would be evaluated when they are proposed.

    As a result, a regulatory flexibility analysis was not prepared.
    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 a collection-of-information requirement subject 
to the PRA--namely, the BRD certification process, consisting of an 
application for the testing of a new BRD, the testing itself, and the 
submission of the test results. This requirement has been submitted to 
OMB for approval. The public reporting burden for this collection of 
information is estimated at 151 hours per application, testing, and 
submission of results. Send comments regarding this burden estimate or 
any other aspect of the data 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 the use of automated collection techniques or of 
other forms of information technology.

List of Subjects in 50 CFR Part 622

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

    Dated: May 27, 1998.
Rolland A. Schmitten,
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:


[[Page 30176]]


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

    2. In Sec. 622.7, 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).
    3. In Sec. 622.41, the first sentence of paragraph (g)(1) is 
revised and paragraph (g)(3) is added to read as follows:


Sec. 622.41  Species specific limitations.

* * * * *
    (g) * * *
    (1) * * * Except as exempted in paragraph (g)(3)(ii) of this 
section, 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. * * *
* * * * *
    (3) Certification of BRDs--(i) A person who seeks to have a BRD 
certified for use in the South Atlantic EEZ must submit an application 
to test such BRD, conduct the testing, and submit to the RD the results 
of the test conducted and recorded in accordance with the Testing 
Protocol for BRD Certification, which along with forms and procedures, 
is included in the Bycatch Reduction Device Testing Protocol Manual 
which is available from the SAFMC, One Southpark Circle, Suite 306, 
Charleston, SC 29407-4699, and from the RD. A BRD that meets the 
certification criterion, as determined under the Testing Protocol for 
BRD Certification, will be added to the list of certified BRDs in 
paragraph (g)(2) of this section.
    (ii) A penaeid shrimp trawler that is authorized to test a BRD in 
the EEZ for possible certification, has such authorization on board, 
and is conducting such test in accordance with the Testing Protocol for 
BRD Certification is exempt from the BRD requirement specified in 
paragraph (g)(1) of this section.
    4. In Sec. 622.48, paragraph (h) is revised to read as follows:


Sec. 622.48  Adjustment of management measures.

* * * * *
    (h) South Atlantic shrimp. BRD certification criteria, BRD 
specifications, BRD testing protocol, certified BRDs, nets required to 
use BRDs, and times and locations when the use of BRDs is required.
    The Testing Protocol for BRD Certification published as an 
uncodified appendix to the final rule implementing Amendment 2 to the 
FMP on April 16, 1997 (62 FR 18536) is revised by adding the following 
paragraph at the end thereof:

Appendix--Testing Protocol for BRD Certification

    Before conducting any certification test, or series of tests, the 
appropriate state director or designee, must be notified. In the event 
that the applicant plans to submit the certification proposal directly 
to the RD, the applicant must notify the RD in writing. This 
notification should identify the sponsor of the tests, when and where 
the tests will be conducted, the vessel or vessels involved, any 
special conditions or requirements of the tests, the statistical design 
that will be followed, the names and affiliations of the observers, 
data that will be collected, a complete description of the BRDs 
including detailed descriptions of how the BRDs will be installed in 
the nets, and types of TEDs that will be used. The appropriate state 
director or designee, will review the notification and if adequate will 
authorize the applicant to conduct tests in state waters. Similarly, if 
testing in the EEZ is required, the state director will submit the 
applicant's notification to the RD, with the director's recommendation. 
Once the RD determines that the notification is complete and all 
applicable regulations are satisfied, the RD will issue the applicant a 
letter of authorization to conduct BRD testing in Federal waters.
[FR Doc. 98-14593 Filed 6-2-98; 8:45 am]
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