Federal Register / Vol. 72, No. 197 / Friday, October 12, 2007 / Proposed Rules 58031 

3 days for submittal of faxed comments. 

Only faxed comments will be granted an 

additional 3 days for submittal. 

DATES: Faxed comments on this 

proposed rule must be received by 

October 15, 2007. 

ADDRESSES: Submit your faxed 

comments to: 202–566–9744. Identify 

comments by Docket ID No. EPA–HQ–

OAR–2005–0172. 

FOR FURTHER INFORMATION CONTACT: Dr. 

David J. McKee, Health and 

Environmental Impacts Division, Office 

of Air Quality Planning and Standards, 

Environmental Protection Agency, Mail 

code C504–06, Research Triangle Park, 

NC 27711, telephone: 919–541–5288; 

fax number: 919–541–0237; e-mail 

address: mckee.dave@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Correction 

In the Federal Register of July 11, 

2007, in FR Document Volume 72, No. 

132, on page 37818, in the second 

column, under the ‘‘ADDRESSES’’

heading the fax number is corrected to 

read: 

• Fax: 202–566–9744. 

Dated: October 9, 2007. 

Mary E. Henigin, 

Acting Director, Office of Air Quality Planning 

and Standards. 

[FR Doc. E7–20246 Filed 10–11–07; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2007–0657; FRL–8479–5] 

Approval and Promulgation of 

Implementation Plans; Revisions to the 

California State Implementation Plan; 

San Francisco Bay Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

under the Clean Air Act a revision to the 

San Francisco Bay Area portion of the 

California State Implementation Plan 

(SIP). This revision consists of 

transportation conformity criteria and 

procedures related to interagency 

consultation and enforceability of 

certain transportation-related control 

measures and mitigation measures. We 

are proposing to approve local 

procedures to update the transportation 

conformity criteria and procedures in 

the applicable SIP. 

DATES: Any comments on this proposal 

must arrive by November 13, 2007. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09–

OAR–2007–0657, by one of the 

following methods: 

1. Federal eRulemaking Portal: 

www.regulations.gov. Follow the on-line 

instructions. 

2. E-mail: vagenas.ginger@epa.gov. 

3. Mail or deliver: Ginger Vagenas 

(AIR–2) U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

www.regulations.gov or e-mail. The 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, and EPA 

will not know your identity or contact 

information unless you provide it in the 

body of your comment. If you send email directly to EPA, your e-mail 

address will be automatically captured 

and included as part of the public 

comment. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: The index to the docket for 

this action is available electronically at 

www.regulations.gov and in hard copy 

at EPA Region IX, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available in 

either location (e.g., CBI). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Ginger Vagenas, EPA Region IX, (415) 

972–3964, vagenas.ginger@epa.gov. 

SUPPLEMENTARY INFORMATION: This 

proposal addresses the San Francisco 

Bay Area Transportation Air Quality 

Conformity Protocol—Conformity 

Procedures and Interagency 

Consultation Procedures, which are 

together referred to as the San Francisco 

Bay Area conformity SIP. In the Rules 

and Regulations section of this Federal 

Register, we are approving these local 

procedures in a direct final action 

without prior proposal because we 

believe this SIP revision is not 

controversial. If we receive adverse 

comments, however, we will publish a 

timely withdrawal of the direct final 

rule and address the comments in 

subsequent action based on this 

proposed rule. Please note that if we 

receive adverse comment on an 

amendment, paragraph, or section of 

this rule and if that provision may be 

severed from the remainder of the rule, 

we may adopt as final those provisions 

of the rule that are not the subject of an 

adverse comment. 

We do not plan to open a second 

comment period, so anyone interested 

in commenting should do so at this 

time. If we do not receive adverse 

comments, no further activity is 

planned. For further information, please 

see the direct final action. 

Dated: September 20, 2007. 

Wayne Nastri, 

Regional Administrator, Region IX. 

[FR Doc. E7–20058 Filed 10–11–07; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[Docket No. 0612243163–7151–01] 

RIN 0648–AU59 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Shrimp 

Fisheries of the Gulf of Mexico and 

South Atlantic; Revision of Bycatch 

Reduction Device Testing Protocols 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: In accordance with the 

framework procedures for adjusting 

management measures specified in 

regulations implementing the Fishery 

Management Plan for the Shrimp 

Fishery of the Gulf of Mexico (Gulf 

FMP) and the Fishery Management Plan 

for the Shrimp Fishery of the South 

Atlantic Region (South Atlantic FMP), 

NMFS proposes to consolidate and 

make modifications to the Bycatch 

Reduction Device Testing Manuals 

(Manual) for the Gulf of Mexico and the 

South Atlantic regions. This proposed 


rfrederick on PROD1PC67 with PROPOSALS
58032 Federal Register / Vol. 72, No. 197 / Friday, October 12, 2007 / Proposed Rules 

rule would also revise the bycatch 

reduction device (BRD) certification 

criterion for the western Gulf of Mexico 

and would certify additional BRDs. The 

intended effect of this proposed rule is 

to improve bycatch reduction in the 

shrimp fisheries and better meet the 

requirements of national standard 9. 

DATES: Comments must be received no 

later than 4:30 p.m., eastern time, on 

November 13, 2007. 

ADDRESSES: You may submit comments, 

identified by 0648–AU59, by any one of 

the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. 

• Fax: 727–824–5308, Attn: Steve 

Branstetter. 

• Mail: Steve Branstetter, Southeast 

Regional Office, NMFS, 263 13th 

Avenue South, St. Petersburg, FL 33701. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments. Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF file formats only. 

Copies of the proposed regulatory 

amendment, which includes an 

Environmental Assessment, an Initial 

Regulatory Flexibility Analysis (IRFA), a 

Regulatory Impact Review (RIR), and a 

Social Impact Assessment/Fishery 

Impact Statement, may be obtained from 

the Gulf of Mexico Fishery Management 

Council, 2203 North Lois Avenue, Suite 

1100, Tampa, FL, 33607; phone: 813–

348–1630; fax: 813–348–1711; email: 

gulfcouncil@gulfcouncil.org. 

Copies of the proposed consolidated 

and revised Bycatch Reduction Device 

Testing Manual and the associated 

IRFA, RIR, and Social Impact 

Assessment/Fishery Impact Statement 

are available from the Southeast 

Regional Office, NMFS, 263 13th 

Avenue South, St. Petersburg, FL 33701; 

phone: 727–824–5305; fax: 727–824–

5308. 

Comments regarding the approved 

collection-of-information requirements 

contained in this rule should be 

submitted in writing to Jason Rueter at 

the Southeast Regional Office address 

(above) and to David Rostker, Office of 

Management and Budget (OMB), by email at DavidlRostker@omb.eop.gov, or 

by fax to 202–395–7285. 

FOR FURTHER INFORMATION CONTACT: 

Steve Branstetter, telephone: 727–824–

5305, fax: 727–824–5308, e-mail: 

Steve.Branstetter@noaa.gov. 

SUPPLEMENTARY INFORMATION: The 

fisheries for shrimp in the exclusive 

economic zone (EEZ) of the Gulf of 

Mexico and the South Atlantic are 

managed under the authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) and regulations 

at 50 CFR part 622. The regulations 

implement the Gulf FMP prepared by 

the Gulf of Mexico Fishery Management 

Council (GMFMC) and the South 

Atlantic FMP prepared by the South 

Atlantic Fishery Management Council 

(SAFMC). 

Background 

Regulations implementing 

Amendment 9 to the Gulf FMP were 

published April 14, 1998 (63 FR 18139). 

The final rule established a requirement, 

with limited exceptions, for the use of 

certified BRDs in shrimp trawls towed 

in the Gulf of Mexico EEZ shoreward of 

the 100–fm (183–m) depth contour west 

of 85° 30′ W. longitude (western Gulf), 

the approximate longitude of Cape San 

Blas, FL. Regulations implementing 

Amendment 9 also required NMFS to 

develop a Manual for the Gulf of Mexico 

outlining testing procedure for 

examining the bycatch reduction 

performance of additional BRD designs. 

BRDs tested under such a procedure and 

determined to reduce bycatch mortality 

of juvenile red snapper by a minimum 

of 44 percent from the average level of 

mortality on these age–0 and age–1 

groups during the years 1984–1989 

would be certified for use in the western 

Gulf shrimp trawl fishery. A final rule 

implementing the requirements for this 

testing procedure was published and 

became effective July 13, 1999 (64 FR 

37690), except for the collection-ofinformation requirements which became 

effective September 29, 1999 (64 FR 

52427). 

NMFS had already published similar 

regulations (62 FR 18536, April 16, 

1997), to implement Amendment 2 to 

the South Atlantic shrimp FMP, 

requiring the use of BRDs in the South 

Atlantic penaeid shrimp fishery. 

Amendment 2 established a bycatch 

reduction certification criterion based 

on 40–percent reductions in the number 

of Spanish mackerel and weakfish. The 

final rule implementing Amendment 2 

also established a Manual for the South 

Atlantic shrimp fishery. 

To better address the requirements of 

national standard 9 of the MagnusonStevens Act, regulations implementing 

Amendment 10 to the Gulf FMP (69 FR 

1538, January 9, 2004) required BRDs in 

shrimp trawls fished in the EEZ east of 

85°30′ W. longitude (eastern Gulf). To 

be certified for use in the EEZ of the 

eastern Gulf, a BRD has to reduce finfish 

bycatch by at least 30 percent, by 

weight. NMFS established this new 

criterion because juvenile red snapper 

are not common in the eastern Gulf. 

Therefore, evaluating the effectiveness 

of a BRD in the eastern Gulf, under a red 

snapper criterion, would not be feasible. 

A general finfish reduction, addressing 

national standard 9, was the more 

appropriate measure to establish for this 

region. 

The final rule implementing 

Amendment 6 the South Atlantic FMP 

(70 FR 73383, December 12, 2005) 

transferred authority to the NMFS 

Southeast Regional Administrator (RA) 

to modify the SAFMC’s Manual, as 

needed, after consultation with the 

SAFMC. The final rule implementing 

Amendment 6 also modified the South 

Atlantic BRD certification criterion to 

match the eastern Gulf criterion of a 30- 

percent finfish reduction, and expanded 

the BRD requirement to include the rock 

shrimp fishery. 

BRD Certification Criterion 

In accordance with the BRD 

framework procedures of regulations 

implementing the Gulf FMP, the 

proposed rule would modify the 

existing BRD certification criterion for 

the western Gulf to be consistent with 

the existing criterion for the eastern gulf 

and the South Atlantic—a 30-percent 

reduction in total finfish catch by 

weight. The existing criterion, 

established in Amendment 9, is based 

on a 1995 stock assessment model no 

longer applicable to the revised red 

snapper rebuilding target. The 1995 

assessment recommended a 50–percent 

reduction in fishing mortality on age 0 

and age 1 red snapper from the average 

mortalities during the 1984 to 1989 

period. The model estimated a fishing 

mortality rate for the 1984 to 1989 

period at 2.06. Recognizing a 10–percent 

reduction in effort had occurred in the 

shrimp fishery since 1989, NMFS 

established a target for a 44–percent 

reduction from BRDs, which achieved 

the goal of reducing fishing mortality to 

approximately 1.03. The rationale for 

this action assumed that such 

reductions, beginning in 1997, would 

meet the existing goal of a 20–percent 

spawning potential ratio for red snapper 

by 2019. 


rfrederick on PROD1PC67 with PROPOSALS
Federal Register / Vol. 72, No. 197 / Friday, October 12, 2007 / Proposed Rules 58033 

This approach was valid based on the 

modeling techniques used for red 

snapper at the time; however, recent 

stock assessments used different 

models, and the rebuilding target for red 

snapper has changed. For example, with 

changes to the red snapper stock and to 

the red snapper and shrimp fisheries, in 

combination with refined assessment 

techniques, the 2005 red snapper stock 

assessment estimated fishing mortality 

on age 0 and age 1 red snapper at 0.74 

for the 1984–1989 time period. This 

does not mean the 1995 assessment 

overestimated fishing mortality, rather 

that the 2005 assessment utilized 

updated information which revised 

estimates of natural mortality (M). In 

running the models with that revised 

estimate of M, other parameters, 

including F, also changed. The 2005 

assessment went through a rigorous 

SEDAR/peer review process. The fishing 

mortality rate for juvenile red snapper 

attributable to the shrimp fishery still 

needs substantial reduction to rebuild 

the red snapper stock by the new 2032 

target; however, the existing BRD 

certification criterion of a 44–percent 

reduction in fishing mortality rate to a 

level of 1.03 is no longer appropriate. 

Although the 1995 assessment model 

could still be used, with a change in 

scaling, to develop a revised BRD 

reduction criterion based on a reduction 

in fishing mortality, there are still 

problems with using a mortality rate 

target as the criterion. The annual 

fishing mortality rates for juvenile age 0 

and age 1 red snapper are dependent on 

seasonal recruitment and the quantity of 

shrimp fishing effort taking juvenile red 

snapper. These variables, in turn, affect 

the ability of a given BRD to reduce 

annual fishing mortality to a specific 

level. Thus, the overall goal of reducing 

the annual juvenile red snapper 

mortality rate in the shrimp fishery 

could be achieved from a high reduction 

of red snapper by BRDs, or by a lesser 

reduction of red snapper by BRDs in 

combination with an overall reduction 

in fishing effort. Under the current 

certification criterion, based on the 

mortality rate for one year compared to 

previous years, it is not possible to 

independently distinguish the 

contribution of the BRD from the 

contribution of overall shrimp effort 

reductions between the two time 

periods. 

A more appropriate measure of the 

efficacy of a BRD to reduce bycatch is 

to evaluate the reductions in catch or 

catch-per-unit-effort (CPUE) of a species 

or species group on a real-time basis. 

Doing so isolates the contribution by the 

BRD and removes the interactions of 

total shrimping effort and annual 

fluctuations in recruitment. The catch 

rate of a net with a BRD can be directly 

compared to the catch rate of a net 

without a BRD, to give reduction levels 

at any given time. Fishing mortality 

reductions can then be calculated based 

on the documented total effort by the 

fleet and the estimates of recruitment for 

any given time frame. This is a more 

appropriate approach than attempting to 

apply mortality rate values for a specific 

year against a previous benchmark 

value, given the fluctuations in 

recruitment, effort, and CPUE values 

which affect estimates of annual 

mortality rates attributable to the shrimp 

fishery. 

In addition, because of the existing 

statistical procedures prescribed in 

association with the bycatch reduction 

criterion, it is difficult to certify new 

BRDs. Only two BRD types have been 

certified since 1998 for use in the 

western Gulf. New BRD designs need to 

be available to shrimp fishermen to 

better reduce bycatch of red snapper 

and achieve recovery goals of this 

overfished stock, to better reduce overall 

finfish bycatch to meet the requirements 

of national standard 9, and to improve 

shrimp retention for a more efficient 

fishery under current economic 

conditions. 

Several potentially effective BRD 

designs could not meet the very specific 

and rigorous mortality-based criterion 

established for the western Gulf. 

However, these experimental BRD 

designs have been demonstrated to 

achieve substantial levels of overall 

finfish reduction, and a moderate and 

consistent level of red snapper 

reduction, exceeding the red snapper 

reduction being achieved by the most 

commonly used configuration of the 

fisheye BRD. In addition, these BRDs are 

similar to the fisheye BRD in terms of 

overall shrimp retention. 

A change in the bycatch reduction 

criterion west of Cape San Blas, FL, 

from a reduction in fishing mortality of 

red snapper to a reduction in finfish 

catch would increase the opportunity to 

certify a greater variety of BRDs for use 

in the fishery, provide a uniform 

bycatch reduction criterion and list of 

certified BRDs for the Gulf of Mexico 

and the South Atlantic regions, and 

improve the overall reduction in 

juvenile red snapper bycatch mortality. 

BRDs may have different capabilities 

under different fishing conditions, and 

having a wider variety of BRDs for use 

in the fishery would allow fishermen to 

choose the most effective BRD for the 

specific local fishing conditions. 

Revisions to the BRD Testing Protocol 

Manual 

Background 

BRD testing is conducted by 

comparing the differences in the catch 

and bycatch of two nets that are towed 

simultaneously by a single vessel. One 

net (control net) is a standard rigged 

shrimp trawl without a BRD, and one 

net (experimental net) is identically 

configured, except it contains the 

experimental BRD. Assuming the two 

nets have equal or similar fishing 

efficiencies, the differences in catch and 

bycatch between the two nets can be 

attributed to the inclusion of the 

experimental BRD in one net. Since the 

Gulf of Mexico and South Atlantic 

Manuals have been in effect, several 

experimental BRDs have been tested for 

certification, but none have been 

certified. Two specific issues appear to 

be impeding the successful testing and 

eventual certification of experimental 

BRDs. 

To be certified by the RA, the BRD 

candidate must demonstrate an 

observed reduction rate meeting the 

bycatch reduction criterion with some 

degree of statistical certainty. Currently, 

a modified Student t-test, a standard 

statistical approach, is used to evaluate 

the data collected during an 

experimental BRD evaluation. The 

criterion for the western Gulf requires 

there be no more than a 5–percent 

probability the true reduction rate is less 

than one standard deviation from the 

observed mean reduction rate. The 

magnitude of any standard deviation of 

a sample is dependent on the data set 

in question, and the analysis is based on 

the assumption the individual data 

points reflect a consistent result among 

sampling trials during a test. In the case 

of evaluating a BRD candidate in the 

marine environment, where organisms 

in the environment are not randomly 

distributed, catch rates can be highly 

variable among successive trawl tows or 

even between nets during a single tow. 

This variability increases the standard 

deviation, and this increase is 

exacerbated by the small minimum 

sample size required by the Manual, 30 

comparative tows. A sample size of 30 

is a recognized minimum standard for 

conducting a Student t-test, but this 

standard assumes the data being 

analyzed have relatively similar values, 

which as noted, is not often true in the 

marine environment. However, this 

sample size was considered necessary to 

minimize the cost and effort involved in 

conducting an experimental BRD test. 

The variability among data points and 

the resulting uncertainty regarding the 

observed sample mean can be reduced 


rfrederick on PROD1PC67 with PROPOSALS
58034 Federal Register / Vol. 72, No. 197 / Friday, October 12, 2007 / Proposed Rules 

in two ways: (1) the researcher must 

ensure the sampling effort will generate 

consistent results between samples, thus 

reducing variability (increase precision); 

or (2) the sample size must be increased 

to better ensure the resulting sample 

mean or average value is more likely 

representative of the true mean value 

(increase accuracy). The first of these 

options is not feasible for most 

biological sampling efforts; as noted, 

organisms are not randomly distributed 

and collections of these organisms 

would never be expected to produce 

consistent results. The second 

alternative can be achieved, but only 

with a greatly increased cost to the 

researcher; initial estimates suggest that 

between a four-fold and eight-fold 

increase in sample size would be 

needed. 

A second and equally critical issue for 

the initial development of experimental 

BRDs involves the field sampling 

procedures prescribed in the Manuals. 

These rigorous procedures were 

established with the intent of reducing 

the inherent variability and uncertainty 

in the data stemming from a small, 30–

tow sample size. Several field tests were 

not completed successfully (e.g., 30 

successful comparative tows could not 

be completed) because of a failure to 

meet one or more of the procedural 

requirements set forth in the Manuals. 

However, not being able to complete a 

field test on potentially effective BRDs 

because of logistical constraints has 

substantial negative consequences for 

conservation. Further development of 

particularly productive concepts may 

cease, and BRD efficiency might never 

rise above the current level. This 

discourages innovative developments to 

improve BRDs. 

These issues were identified at a 1999 

shrimp fishery stakeholder’s workshop 

sponsored by the Gulf and South 

Atlantic Fisheries Foundation, Inc. 

Recommendations stemming from the 

workshop were made available to the 

GMFMC and SAFMC for their 

consideration. Based on this 

information as well as additional public 

input regarding the existing bycatch 

Manuals, the GMFMC and SAFMC 

requested that NMFS develop 

alternative procedures to address and 

alleviate these impediments to testing 

and certifying new BRD candidates, 

while maintaining the statistical 

confidence BRDs will meet the 

established bycatch reduction criterion 

and achieve bycatch reduction goals. 

NMFS is proposing to consolidate and 

make revisions to the Manuals for the 

Gulf of Mexico and the South Atlantic 

region. The new, combined BRD Testing 

Manual implemented under this 

proposed rule would establish 

alternative statistical procedures and 

field sampling procedures. The new 

statistical procedures would address the 

issue of statistical uncertainty due to 

limited sample size when evaluating the 

effectiveness of experimental BRD 

designs. Additionally, the proposed rule 

would modify the Manual to 

incorporate additional flexibility in the 

field sampling procedures. Coupled 

with the proposed modification to the 

statistical approach, alternative 

sampling procedures provide flexibility 

to better meet the logistical constraints 

of field sampling while maintaining an 

acceptable level of statistical precision 

and accuracy. 

Gear Changes During a BRD Test 

According to the current Manuals, if 

the fishing gear used at the start of the 

test incurs damage and requires 

replacing, then the certification test of a 

BRD candidate must begin anew. Under 

actual field conditions, damage to 

fishing gear often occurs before the 

completion of 30 tows. Even if 30 

consecutive tows are completed during 

a test without incident, the data 

represent results collected aboard a 

single vessel using only one trawl 

configuration in a limited area and 

during a specific time frame. Results 

from such a test might not be applicable 

to other vessels fishing at other times of 

the year, in other areas, or using other 

shrimp trawl configurations. 

The proposed rule would modify the 

procedure to allow the compilation of 

results from a series of tests to meet the 

30–tow minimum sample size for a 

complete BRD test. This alternative 

would eliminate the need to reinitiate 

tests after a gear failure. Under the 

proposed modifications, should gear 

failure occur, the applicant would 

replace the damaged gear, conduct 

‘‘tuning’’ tows (see Gear Tuning below) 

to determine the new gear did not affect 

the fishing efficiency between the two 

nets, and then continue the test. Minor 

repairs to the gear (e.g., sewing holes in 

the webbing; replacing a broken tickler 

chain with a new one of the same 

configuration) would not be considered 

a gear change. Additionally, under this 

proposed procedure, it would be 

possible to conduct the test over a 

longer period, aboard different vessels, 

using different fishing gear 

configurations (with the same BRD 

design), or while fishing in different 

areas. Should the data collected in this 

manner demonstrate the BRD meets the 

bycatch reduction criterion, there is a 

greater likelihood the BRD would be 

effective under a broader array of actual 

commercial fishing conditions. 

Tow Times 

Currently, the sampling procedures 

require the selection of a fixed tow time 

before beginning a test. Each tow may 

not deviate more than 10 percent from 

the selected tow time. The fishing 

efficiency of a net changes (decreases) 

during a tow as the catch in the net 

increases. The fixed-tow time 

requirement was intended to reduce that 

source of variability in the data set, thus 

reducing the resulting uncertainty 

associated with the sample mean 

reduction rate. 

However, because of the non-random 

and patchy distribution and abundance 

of organisms in the marine 

environment, a decrease or increase in 

the tow time may be necessary during 

a specific BRD test. For example, the 

total catch taken during a tow may be 

greater than anticipated. If so, it may not 

be possible to keep the catch from each 

net separated for sampling, thus 

precluding a successful sample of the 

catch from a specific net. Under such 

conditions, shorter tow times would 

produce manageable quantities of catch 

for sampling. Conversely, catches of 

shrimp may be lower than anticipated, 

and the vessel captain may want to 

increase the tow time. In either case, 

under the current requirements, the test 

would have to be aborted and reinitiated 

if the tow time were changed in 

increments greater than 10 percent of 

the original tow time. 

This proposed rule would allow the 

tow time to be changed after the 

initiation of a test. The applicant would 

still be required to propose a preferred 

tow time in the operations plan 

submitted to the RA as part of the 

application for a Letter of Authorization 

(LOA). However, the applicant would be 

allowed to make reasonable adjustments 

to the tow times during a given test to 

adapt to local fishing conditions and 

successfully complete the test. 

Because the fishing efficiency of a 

trawl will change depending on the 

amount of catch in the net, and the 

efficiency of the experimental BRD 

similarly may be affected by the amount 

of catch in the net, excessive differences 

in tow times for segments of a complete 

30–tow test sample could introduce a 

bias in the overall results. Therefore, 

any tow time changes would need to be 

described and justified in a report 

submitted to the RA at the conclusion 

of the test. The RA would have to 

approve the changes before the data 

would be evaluated for certification. 

The RA would consult with scientific 

and technical staff, including the 

SEFSC, regarding the acceptability of 


rfrederick on PROD1PC67 with PROPOSALS
Federal Register / Vol. 72, No. 197 / Friday, October 12, 2007 / Proposed Rules 58035 

any alterations prior to making a final 

determination. 

Gear Tuning and Fishing Efficiency Bias 

As noted in the ‘‘Background’’

section, the basic assumption in 

assessing the bycatch reduction 

efficiency of the BRD candidate during 

paired-net tests is the BRD candidate in 

the experimental net represents the only 

factor causing a difference in catch from 

the control net. Therefore, prior to 

beginning a test series, the nets to be 

used in the tests must be calibrated 

(tuned) to minimize, to the extent 

practicable, any differences in catch 

efficiency, or ‘‘bias’’. Nets would need 

to be tuned again after any gear 

modification or change. 

Even so, some efficiency bias may 

remain between nets, or biases may 

develop during the test. To address the 

issue of potential biases in fishing 

efficiency between nets, the current 

procedures require rotation of the 

functioning experimental BRD between 

the port and starboard nets every four to 

six tows (Gulf of Mexico) or daily 

(South Atlantic). The intent of this 

requirement was to negate any 

remaining bias by introducing that bias 

into both the control and experimental 

data on a regular basis, thus reducing 

the uncertainty associated with the 

resulting sample mean reduction rate. 

To move a complex BRD candidate 

integrated into the structure of the trawl 

(e.g., a soft turtle excluding device) may 

require moving large sections of the net, 

or even the entire net, on each side of 

the vessel. This would require loading 

the trawl doors onboard, disconnecting, 

moving and re-connecting the nets, and 

re-deploying the doors and nets 

overboard. This activity can take several 

hours to complete. Not only does this 

increase non-fishing time for the 

commercial vessel, it increases the 

amount of time required to complete a 

BRD test. The need to load and handle 

the heavy trawl doors and other fishing 

equipment on a frequent basis increases 

concerns about vessel crew safety. All of 

these issues can be alleviated by 

allowing greater flexibility in the 

establishment of a rotational schedule 

best meeting the needs of the specific 

proposed test. 

This proposed rule would remove the 

static requirement to rotate the BRD 

every few tows, and allow the applicant 

to propose, as part of the application for 

a LOA from the RA, a reasonable gear 

rotation schedule to accommodate the 

complexity of the gear being tested. The 

proposed rotational schedule would still 

need to ensure equal numbers of tows 

are conducted with the BRD candidate 

in both the port and starboard nets. 

Because the applicant would be 

monitoring the catch rates in each net 

after each tow, if a substantial bias 

develops, the applicant could take 

action to re-tune the gear or increase the 

rotational schedule as needed. The 

applicant’s proposed rotational 

schedule would have to be approved by 

the RA before the LOA would be issued. 

If the rotational schedule is changed 

during the test, the applicant would 

need to provide a rationale for the 

action in the final report submitting the 

data for certification. The RA would 

consult with scientific and technical 

staff regarding the acceptability of any 

changes to the rotational schedule prior 

to making a final determination 

regarding the acceptability of the data. 

Use of a Try Net During a BRD Test 

A try net is a separate, small net 

pulled for brief periods by a shrimp 

trawler during an extended trawling 

effort to test for shrimp concentrations 

or determine fishing conditions. In the 

case of vessels fishing four nets (quadrigged), the nets being used to evaluate 

the experimental BRD are positioned 

beyond the influence of the try net, thus 

the use of a try net on a quad-rigged 

vessel is allowed under the current 

procedures. However, on a vessel 

pulling only two nets (twin-rigged) the 

try net is fishing in front of the main net 

on the same side of the vessel. In that 

case, the try net is removing or diverting 

some catch before the catch could enter 

the main net, and introducing bias. 

To avoid that bias, the current 

requirements in the Gulf of Mexico 

prohibit the use of a try net during BRD 

tests conducted aboard twin-rigged 

vessels. Nevertheless, the use of a try 

net is an integral part of normal 

shrimping activities, ensuring the vessel 

is fishing on commercial quantities of 

shrimp during each extended tow. 

Because BRD candidate tests are 

intended to be conducted aboard 

actively fishing commercial vessels, 

even if a state government, academic 

institution, or other entity is the 

applicant of record, the quantity of 

shrimp and incidental catch should 

reflect real fishing conditions. Use of a 

try net is necessary to ensure the catch 

levels reflect those expected during 

normal commercial shrimping 

operations. 

The proposed rule would modify the 

procedures in the Manual to allow the 

use of a try net during BRD tests aboard 

twin-rigged vessels with the try net 

fishing directly in front of one of the 

main test nets. To minimize and negate 

the potential bias, NMFS is proposing a 

condition requiring the fishing time for 

the try net to remain a consistent 

percentage of the total tow time for each 

tow throughout the course of the test. 

This condition would expose both the 

control and experimental nets (as they 

are rotated) to equivalent effects 

introduced by the try net. This 

requirement should adequately address 

the shrimp fishermen’s need to use a try 

net as part of the commercial operation 

while negating any potential bias 

introduced from the use of the try net. 

Data Collection 

The current procedures require the 

collection of information on a variety of 

species taken as catch and bycatch in 

shrimp trawls. The current SAFMC 

Manual requires the collection of 

information on 25 species or species 

groups of finfishes. However, the 

certification criterion is a 30-percent 

reduction, by weight, in total finfish, in 

aggregate, not individual species. 

Therefore, the species specific data 

requirement is outdated, and while 

informative, is not needed to determine 

whether a BRD meets the existing 

certification criterion. For the western 

Gulf, currently a BRD is certified only 

on its ability to reduce the bycatch 

mortality of juvenile red snapper. 

However, this proposed rule would 

revise the western Gulf criterion to also 

be a 30-percent reduction in total 

finfish, and the specific requirements to 

sample red snapper would no longer be 

appropriate. 

The proposed rule would reduce 

mandatory data collection requirements 

for tests conducted to certify a BRD. 

Mandatory data collection during a 

certification test would be limited to 

recording the total catch of each net, the 

total catch of commercial shrimp in 

each net, and the total catch (or total 

catch in a pre-determined sample) of all 

finfish species in aggregate. For tests 

conducted in the western Gulf, 

applicants would be encouraged to 

record the total catch of red snapper in 

each net, but these data would not be 

used in making a decision to certify a 

BRD. Similarly, for all areas, data 

collection for any other specific portions 

of the catch (i.e., specific finfish species) 

is encouraged but voluntary, as this 

information is not required for the 

certification of the BRD candidate. 

Statistical Evaluation 

The current certification approach 

was developed from the procedures 

used in the Congressionally-mandated 

BRD research program of the early 

1990s. From a statistical standpoint, the 

goal is to develop a procedure that has 

zero chance of passing a device with a 

true reduction less than the target value, 

and zero chance of failing a device with 


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true reduction greater than the target 

value. Realistically, there will always be 

some probability a BRD with true 

reduction less than the target criterion 

will pass (Type I error), and some 

probability a BRD with true reduction 

greater than the target criterion will fail 

(Type II error). In a certification context, 

a Type II error (rejecting an acceptable 

BRD) has important negative 

conservation consequences, i.e., not 

being able to use a more effective BRD, 

or not having a wider variety of BRD 

types available for use. A Type I error 

(accepting an unsatisfactory BRD) may 

also have negative conservation 

consequences. 

The concept of Type II errors is of 

general concern to the statistical 

community, and has prompted 

substantial statistical research and 

scientific publications on the properties 

of Type II error. The probability of a 

Type II error of a hypothesis test is 

known as the power of the test. Power 

analyses of the existing BRD data 

indicated, because of the inherent 

variability, certification of devices was 

unlikely unless the BRD demonstrated a 

60- to 70–percent sample mean 

reduction rate. This was not the intent 

when NMFS established certification 

criteria of substantially lesser values. 

It is preferable to be able to evaluate 

an experimental BRD via probability 

statements of the form ‘‘There is at least 

’X’ probability the true reduction meets 

the target.’’ SEFSC scientists have 

recommended the use of a statistical 

standard, based on a Bayesian approach, 

as a more applicable method than the 

current use of the ‘‘classical’’ Student-t 

test, or frequentist approach. The 

Bayesian approach is more instructive 

about how competing risks (Type I and 

Type II errors) can be controlled, given 

the new information now available 

regarding the statistical power of the 

data and approaches. Additionally, the 

Bayesian approach allows for the 

development and evaluation of the 

capabilities of an experimental BRD in 

terms of probability statements. 

The proposed rule would replace the 

current ‘‘classical’’ statistical approach 

with a Bayesian approach. Under a 

Bayesian approach, two probability 

statements would address the existing 

null hypothesis regarding the 

certification of a BRD. These probability 

statements would be: (1) The probability 

the true reduction meets the target is at 

least ’A’; and (2) The probability the 

true reduction is less than some 

minimum threshold is not more than 

’B’. The probability statements are based 

on observed data sets. 

To be certified, the data set for a BRD 

candidate would need to demonstrate a 

best point estimate (sample mean) 

meeting the certification criterion. 

Additionally, the BRD candidate would 

have to satisfy both probability 

statements above. The statistical 

properties of the data being collected 

dictate a 50-percent probability value 

for ’A’. For any BRD, even if it were 

tested indefinitely under identical 

conditions, there would be an evernarrowing probability distribution on 

either side of the mean observed 

reduction rate. Nevertheless, half the 

probability distribution would include 

values less than the mean, and half of 

the distribution would include values 

greater than the mean. Therefore, to 

certify BRDs capable of meeting the 

target, NMFS has determined the first 

probability statement can be adequately 

expressed as: ‘‘There is at least a 50–

percent probability the true reduction 

meets the bycatch reduction criterion.’’

This would be similar to other NMFS 

actions that have at least a 50–percent 

probability of achieving a stock 

rebuilding target. 

There will always be some risk the 

data set generated for a specific device 

will result in a sample mean reduction 

rate meeting the certification criterion, 

when the device’s true reduction rate is 

less than the certification criterion. 

Therefore, selecting a value for a 

minimum threshold and a value for ’B’

is a greater focus to managing the risk 

of accepting a BRD not meeting the 

criterion. To address this issue, it is 

necessary to establish a minimum 

threshold level, below the target 

criterion, which is completely 

unacceptable, and set ’B’ accordingly, 

such that there is only a low risk of 

accepting a BRD because of chance 

variation in the available data. 

Based on the statistical results 

generated from data sets certifying the 

BRDs currently in use in the South 

Atlantic and Gulf of Mexico shrimp 

fisheries, SEFSC scientists have 

determined the second probability 

statement can be adequately expressed 

as: ‘‘There is no more than a 10–percent 

probability the reduction rate of the 

BRD candidate is more than 5 percent 

less than the bycatch reduction 

criterion.’’ In other words, for the 

current 30-percent finfish reduction 

target, there is no more than a 10–

percent probability the true reduction 

rate of the BRD candidate is less than 25 

percent. 

The proposed change would increase 

the opportunity to certify a greater 

variety of BRDs for use in the fishery, 

while maintaining a statistical 

confidence in regard to the efficiency of 

the BRD. BRDs may have different 

capabilities under different fishing 

conditions, and having a wider variety 

of BRDs for use in the fishery would 

allow fishermen to choose the most 

effective BRD for the specific local 

fishing conditions. This would enhance 

compliance with national standard 9 of 

the Magnuson-Stevens Act, and in the 

western Gulf of Mexico, potentially 

accelerate the rebuilding efforts for the 

overfished red snapper resource in the 

Gulf of Mexico. 

Provisional Certification 

In addition to revising the statistical 

evaluation for BRD certification, NMFS 

proposes to create a ‘‘provisional 

certification’’ category for experimental 

BRDs. A provisional certification would 

apply to an experimental BRD not quite 

meeting the criteria for certification, but 

deemed likely to meet the criteria with 

further testing. To be provisionally 

certified, statistical analyses of the test 

results for an experimental BRD must 

demonstrate there is at least a 50–

percent probability the true reduction 

rate of the BRD candidate is no more 

than 5 percent less than the bycatch 

reduction criterion. 

In other words, the BRD candidate 

must demonstrate a best point estimate 

(sample mean) within 5 percent of the 

certification criterion. 

A provisional certification of a BRD 

would be effective for 2 years from the 

date of publication in the Federal 

Register of any final rule determining 

provisional certification. This time 

period would allow additional widescale industry evaluation of the BRD 

candidate. The intent would be to 

further refine the design or application 

of the experimental BRD so it could 

eventually meet the certification 

criterion. 

Certification of New BRDs 

The new BRD certification criterion to 

be established with this proposed rule, 

along with the revisions to the Manual, 

especially the addition of a ‘‘provisional 

certification,’’ would allow new and 

more effective BRDs to be certified for 

use in the fishery. There would be no 

change to the status of the existing 

certification of the Jones Davis BRD in 

the southeast shrimp fishery. The 

original data used to certify that BRD 

indicate it achieves a 58–percent 

reduction in total finfish bycatch; there 

is a 100–percent probability the true 

reduction rate meets the certification 

criterion. 

The proposed rule would certify the 

Modified Jones Davis BRD for use by the 

shrimp fishery throughout EEZ of the 

Gulf and South Atlantic. This device 

has been demonstrated to provide a 33–

percent reduction in total finfish 


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bycatch. The power test indicates this 

device has a 98–percent probability the 

true reduction rate of the BRD is greater 

than the certification criterion, and 

there is less than a 1–percent probability 

the true reduction rate of the BRD is 25 

percent or less. 

The proposed rule would also 

provisionally certify the extended 

funnel BRD for use in the western Gulf. 

The extended funnel BRD is currently 

certified for use in the eastern Gulf and 

South Atlantic. The data set from the 

1990’s certifying the extended funnel 

BRD indicated it reduced total finfish by 

30 to 35 percent. Newer information 

collected during 2001 through 2003 in 

the Gulf indicates the extended funnel 

BRD is reducing finfish by only about 27 

percent. Therefore, the extended funnel 

BRD would not meet the proposed new 

certification criterion. However, 

consistent with the proposed criterion 

for provisional certification, there is a 

74–percent probability the true 

reduction rate of the BRD is at least 25 

percent. Therefore, this proposed rule 

would change the status of the extended 

funnel BRD in the Gulf to a provisional 

certification which would remain 

effective for two years from the date of 

publication of any final rule to 

implement this regulatory amendment. 

NMFS anticipates additional work on 

the extended funnel BRD would 

improve its performance, and allow it to 

meet the certification criterion. No new 

information is available regarding the 

efficacy of the extended funnel BRD in 

the South Atlantic. The shrimp fishery 

in the South Atlantic tends to operate in 

shallower water and has a different 

species composition to its bycatch. The 

new information on the extended funnel 

BRD was all collected in the Gulf of 

Mexico; there are no new data collected 

from the South Atlantic fishery to 

indicate the BRDs are not meeting the 

bycatch reduction targets. Therefore, the 

BRD will remain certified in the South 

Atlantic based on prior determinations 

the BRD meets the criterion in that part 

of the fishery. 

This proposed rule would also 

provisionally certify one new design, 

the composite panel BRD, for use in the 

Gulf and South Atlantic shrimp 

fisheries. This BRD design has only 

been tested in the Gulf, but with a 

provisional certification, this BRD can 

be more extensively evaluated for its use 

in the South Atlantic. The mean sample 

reduction rate is 25.1 percent. There is 

a 52- percent probability the true 

reduction rate of this BRD design is at 

least 25 percent. Therefore, NMFS 

proposes to provisionally certify this 

BRD design. This provisional 

certification would remain effective for 

two years from the date of publication 

of any final rule to implement this 

regulatory amendment; NMFS 

anticipates this would allow sufficient 

time to further test this design in both 

the Gulf and South Atlantic fisheries. 

The fisheye BRD was one of two BRD 

designs originally certified under the 

existing criterion for use in the western 

Gulf. Because of its simplistic design 

and low cost, it became the industry 

standard. The most common 

configuration and placement in the 

trawl is greater than 10.5 ft (3.2 m) from 

the trawl’s cod end tie-off. According to 

NMFS’ SEFSC estimates, the fisheye 

BRD in this configuration is achieving 

between 11- and 25–percent reductions 

in fishing mortality on juvenile red 

snapper and a 14- to 23–percent 

reduction in finfish bycatch by weight. 

Thus, it does not meet the current red 

snapper morality target or the proposed 

30–percent finfish reduction criterion. 

Whether the criterion is changed or not, 

NMFS would not be able to maintain 

the certification of the industry-standard 

fisheye BRD placed 10.5 ft (3.2 m) 

forward because it does not meet the 

existing red snapper criterion or the 

proposed 30–percent finfish reduction 

criterion. However, placed in other 

areas of the cod end, this type of BRD 

is more effective, and NMFS is 

developing subsequent rulemaking to 

modify the allowable placement of the 

fisheye BRD in trawl nets. The analysis 

in this proposed rule discusses indirect 

impacts arising from the change in the 

certification criterion, and its potential 

impact on the future certification and 

possible decertification or revision to 

allowable BRDs. For example, it appears 

at this time that the fisheye BRD would 

be restricted in its allowable placement 

in the shrimp trawl net. NMFS is 

developing separate rulemaking to 

address this additional change, and the 

potential direct economic impacts 

associated with Gulf shrimp vessels 

having to change or modify the current 

placement of BRDs in their shrimp trawl 

nets will be fully analyzed in the 

subsequent rule. 

Similarly, it appears the efficiency of 

the expanded mesh BRD, currently 

certified for use in the eastern Gulf and 

South Atlantic, has decreased. During 

the original tests of the expanded mesh 

BRD in the mid–1990s, the BRD 

achieved between 30- and 35–percent 

reduction in total finfish. Recent tests of 

the expanded mesh BRD in the Gulf 

indicate it is only achieving about a 17–

percent reduction in total finfish, thus, 

it does not meet the criteria to be 

certified or provisionally certified. 

NMFS may revise the certification status 

of the expanded mesh BRD in a separate 

rulemaking. 

For all of these BRD designs, the 

potential of the BRDs has not changed, 

but it appears fishing behavior, or some 

other factor in the fleet, has changed. 

Actions to maximize shrimp retention, 

without concurrently maintaining fish 

reductions, have diminished the BRDs’

effectiveness to reduce bycatch. There 

have been numerous technological 

changes to the overall construction of 

shrimp trawl gear, such as new turtle 

excluder devices and longer nets. In 

addition, there have been changes in 

fishing practices to help increase shrimp 

retention, such as faster towing speeds 

and modified retrieval procedures. The 

exact reasons for the BRDs’ change in 

efficiency are not known. 

The new BRDs would actually 

improve red snapper bycatch reduction 

and general finfish reduction relative to 

what the industry is currently achieving 

with its use of the forward-placed 

fisheye BRD because these new BRDs 

have a better exclusion rate than the 

industry standard. The forward-placed 

fisheye BRD reduces fishing mortality 

on juvenile red snapper by about 11 

percent and reduces the biomass of 

finfish by about 14 percent. The 

Modified Jones Davis BRD reduces red 

snapper mortality by approximately 31 

percent and reduces finfish by 33 

percent. The extended funnel BRD 

reduces juvenile red snapper mortality 

by approximately 25 percent and 

reduces finfish biomass by about 27 

percent. 

NMFS is now addressing red snapper 

management through measures 

proposed in the Joint Amendment 27 to 

the FMP for the Reef Fish Resources of 

the Gulf of Mexico and Amendment 14 

to the FMP for the Shrimp Fishery of the 

Gulf of Mexico. NMFS has initiated 

review of this joint amendment and 

announced the availability of this joint 

amendment for public comment on July 

26, 2007 (72 FR 41046). Given the 

current declines in the number of 

participants and effort expended by the 

shrimp fishery, it is more practicable to 

control red snapper mortality in the 

shrimp fishery through effort controls of 

that fishery versus the use of BRDs. 

However, BRDs still play an important 

role in addressing national standard 9 

for total bycatch reduction potential. 

Classification 

Pursuant to section 304(b)(1)(A) of the 

Magnuson-Stevens Act, I have 

determined that this proposed rule is 

consistent with the regulatory 

amendment proposing these BRDrelated revisions, other provisions of the 

Magnuson-Stevens Act, and other 


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58038 Federal Register / Vol. 72, No. 197 / Friday, October 12, 2007 / Proposed Rules 

applicable law, subject to further 

consideration after public comment. 

This proposed rule has been 

determined to be significant for 

purposes of Executive Order 12866. 

NMFS prepared an IRFA, as required 

by section 603 of the Regulatory 

Flexibility Act, for this proposed rule. 

The IRFA describes the economic 

impact this proposed rule, if adopted, 

would have on small entities. A 

description of the action, why it is being 

considered, and the legal basis for this 

action are contained at the beginning of 

this section in the preamble and in the 

SUMMARY section of the preamble. A 

copy of the full analysis is available 

from NMFS (see ADDRESSES). A 

summary of the IRFA follows. 

The Magnuson-Stevens Act provides 

the statutory basis for the proposed rule. 

The proposed rule would modify the 

procedures for field testing BRD 

candidates for use in the Gulf of Mexico 

and South Atlantic EEZ commercial 

shrimp fisheries and would modify the 

bycatch reduction criterion for 

certifying BRDs for use in the penaeid 

shrimp fishery in the Gulf EEZ west of 

Cape San Blas, FL. 

The purpose of this proposed rule is 

to implement more practical field 

testing procedures for BRD certification 

candidates and to establish a realistic 

bycatch reduction threshold for the Gulf 

EEZ commercial shrimp fishery. 

No duplicative, overlapping or 

conflicting Federal rules have been 

identified. 

The primary entities that are expected 

to apply for the BRD certification 

process are state government, academic, 

and not-for-profit entities. Independent 

commercial shrimping operations in 

either the Gulf or South Atlantic may 

also be included among applicants. 

NMFS estimates up to 24 applicants 

will apply for the BRD certification 

process during the first year and a 

smaller number in following years. 

While the identity of entities that might 

pursue future BRD testing cannot be 

determined with any certainty, based on 

past applicants, BRD testing is expected 

to be undertaken by NOAA Fisheries 

Service, the Texas Parks and Wildlife 

Department, the Florida Department of 

Environmental Protection, Texas A&M 

University, the University of Georgia, 

other institutions, and owners of shrimp 

vessels in the Gulf. 

There are approximately 700 vessels 

permitted to operate in the South 

Atlantic EEZ commercial shrimp 

fishery. The most current assessment of 

the South Atlantic commercial shrimp 

fishery covers the period 2000–2002 and 

encompasses vessels that operated in 

both state and EEZ waters. While this 

assessment covered a larger universe of 

vessels, an average of approximately 

1,900 vessels per year, and different 

economic conditions, it represents the 

best profile available at this time. Over 

this period, average gross revenue per 

vessel ranged from approximately 

$71,000 to approximately $81,000. The 

highest gross revenue per vessel from all 

commercial harvesting activities did not 

exceed $1.0 million. 

For the Gulf EEZ, as of March 26, 

2007, a moratorium permit is required 

to fish for shrimp. Although it is 

unknown how many eligible applicants 

will apply for a moratorium permit, 

2,666 vessels would qualify for the 

permit and are assumed to constitute 

the universe of indirectly affected 

shrimping vessels. 

An evaluation of revenue distribution 

by vessel size indicates substantial 

differences in yearly average revenues 

between large (at least 60 ft (18.3 m) in 

length) and small vessels in the Gulf 

EEZ commercial shrimp fishery. For the 

large vessel group, average annual 

revenues per vessel in 2004 was 

approximately $140,000, while the 

comparable value for small vessels was 

approximately $27,000. Across all 

vessels, the average annual gross 

revenue per vessel was approximately 

$110,000. Maximum yearly gross 

revenue reported by a qualifying vessel 

was approximately $1,046,000. 

On average, ‘‘small’’ vessels are also 

‘‘smaller’’ in regards to almost all of 

their physical attributes (e.g. they use 

smaller crews, fewer and smaller nets, 

have less engine horsepower and fuel 

capacity, etc.). Small vessels are also 

older on average. Larger vessels also 

tend to be steel-hulled. Fiberglass hulls 

are most prominent among small 

vessels, though steel and wood hulls are 

also common. Nearly two-thirds of large 

vessels have freezing capabilities while 

few small vessels have such equipment. 

Small vessels still rely on ice for 

refrigeration and storage, though more 

than one-third of large vessels also rely 

on ice. Some vessels are so small that 

they rely on live wells for storage. 

An important difference between 

large and small Gulf EEZ commercial 

shrimp vessels is with respect to their 

dependency on the food shrimp fishery. 

The percentage of revenues arising from 

food shrimp landings is approximately 

81 percent for large vessels, but only 

approximately 58 percent for small 

vessels. Thus, on average, large vessels 

are more dependent than their smaller 

counterparts on the food shrimp fishery. 

However, dependency on food shrimp is 

much more variable within the small 

vessel sector than the large vessel sector. 

Many small vessels are quite dependent 

on food shrimp landings, while others 

illustrate little if any dependency. 

Finally, according to recent 

projections, on average, both small and 

large Gulf EEZ commercial shrimp 

vessels are experiencing significant 

economic losses, ranging from a -27 

percent rate of return in the small vessel 

sector to a -36 percent rate of return in 

the large vessel sector (-33 percent on 

average for the fishery as a whole). 

Therefore, almost any but the most 

minor additional financial burden 

would be expected to generate a 

significant adverse impact on affected 

vessels and potentially hasten 

additional exit from the fishery. 

The Small Business Administration 

(SBA) defines a small organization as 

any not-for-profit enterprise that is 

independently owned and operated and 

not dominant in its field of operation. 

This definition includes private 

educational institutions. The SBA also 

defines a small governmental 

jurisdiction as the government of cities, 

counties, towns, townships, villages, 

school districts, or special districts with 

a population less than 50,000. Finally, 

the SBA defines a small business in the 

commercial fishing activity as an entity 

that is independently owned and 

operated, is not dominant in its field of 

operation (including its affiliates), and 

has average annual total receipts not in 

excess of $4.0 million annually (NAICS 

codes 114111 and 114112, finfish and 

shellfish fishing). 

While the identity of entities that 

might pursue future BRD testing cannot 

be determined with any certainty, based 

on past applicants, BRD testing is 

expected to be undertaken by NOAA 

Fisheries Service, the Texas Parks and 

Wildlife Department, the Florida 

Department of Environmental 

Protection, Texas A&M University, the 

University of Georgia, other institutions, 

and owners of shrimp vessels in the 

Gulf. The respective state agencies are 

extensions of the respective state 

governments and, as such, clearly 

exceed the SBA population thresholds 

for small government entities. Similarly, 

both Texas A&M University and the 

University of Georgia are, as public 

universities, extensions of the respective 

state government educational systems, 

with staff being state employees, and, 

therefore, would similarly be 

appropriately classified as large entities. 

Although no private colleges or 

universities that might apply for the 

BRD testing process have been 

identified, as private rather than public 

educational institutions, while some 

exceptions may exist, private 

educational institutions generally are 

understood to be smaller in terms of 


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student population, staff, and 

operational budgets than public 

institutions and, as such, are 

determined for the purpose of this 

analysis to be small entities. Given the 

aforementioned maximum annual 

revenue figures for Gulf and South 

Atlantic commercial shrimping 

operations, vessels that would be 

expected to participate in the 

certification program are determined to 

be small business entities for the 

purpose of this analysis. Thus, most 

entities that may apply for the BRD 

certification process are likely to be 

small entities, and only a maximum of 

24 entities would be expected to apply 

the first year, with fewer entities 

applying in subsequent years. 

All entities that would qualify for the 

Gulf EEZ commercial shrimp fishery 

moratorium permit, 2,666 vessels, 

would be expected to be indirectly 

affected by the proposed Gulf bycatch 

reduction criterion. Given the maximum 

revenue provided above for Gulf EEZ 

commercial shrimping operations, all 

shrimp vessels that have the potential to 

be indirectly impacted by the proposed 

change in the Gulf bycatch reduction 

criterion are determined to be small 

entities for the purpose of this analysis. 

The outcome of ‘‘significant economic 

impact’’ can be ascertained by 

examining two issues: 

disproportionality and profitability. 

The disproportionality question is: do 

the proposed regulations place a 

substantial number of small entities at a 

significant competitive disadvantage to 

large entities? Revision to the Manual 

would not be expected to result in any 

direct or indirect adverse economic 

impacts to any affected entities since the 

reporting burden per applicant will not 

increase and the revisions, in and of 

themselves, will not cause any BRDs to 

be certified, provisionally certified, or 

decertified in future actions. Therefore, 

the issue of disproportionate impacts 

would not apply to this action. 

Similarly, the proposed change to the 

Gulf EEZ commercial shrimp fishery 

bycatch reduction criterion would not 

result in any direct adverse economic 

impacts on participants in the Gulf EEZ 

commercial shrimp fishery. However, 

the change in the bycatch reduction 

criterion would be expected to generate 

indirect impacts on vessels in the Gulf 

EEZ commercial shrimp fishery as a 

result of future certification, provisional 

certification, and/or decertification 

actions. All of these vessels have been 

determined to be small business 

entities. Hence, the issue of 

disproportionality would also not apply 

to this action. 

The proposed certifications and 

provisional certifications would also 

impact all vessels in the Gulf EEZ 

commercial shrimp fishery, as well as 

vessels in the South Atlantic EEZ 

commercial shrimp fishery in some 

cases. As all of these entities were 

determined to be small entities, the 

issue of disproportionality would not 

apply to these proposed actions. 

The profitability question is: do the 

regulations significantly reduce profit 

for a substantial number of small 

entities? 

The proposed revision of the Manual 

would not directly affect fishery 

participation or harvest because it 

merely establishes procedures under 

which research and gear development 

may proceed. The proposed bycatch 

reduction criterion for the Gulf EEZ 

commercial shrimp fishery is not 

expected to result in any direct adverse 

economic impacts the participants in 

this fishery because it is an 

administrative action. 

The proposed criterion would, 

however, be expected to result in 

decertification of some currently used 

BRDs/configurations through 

subsequent regulatory action. This 

decertification would require the use of 

alternative certified or provisionally 

certified BRDs and would result in 

increased operating costs. Among the 

BRDs currently in use, the maximum 

increase in operating costs that would 

be incurred as a result of future 

decertification would be the first-year 

BRD replacement costs, ranging from 

$2,550 to $4,250 per vessel per year, 

associated with the Jones-Davis BRD-- 

the most expensive of the remaining 

certified BRDs. This increase would 

represent between 2.3 percent and 3.8 

percent of an average vessel’s annual 

revenues. Industry-wide, the re-gearing 

costs for the Gulf EEZ commercial 

shrimp fishery would be expected to 

range from approximately $2.8-$10.1 

million for all moratorium permit 

qualifiers, or approximately $2.2-$7.7 

million if only active qualifiers elect to 

obtain moratorium permits. However, 

these costs would directly accrue only 

to a subsequent rule and not to the 

current proposed action. 

The proposed criterion would also 

allow for the Modified Jones-Davis BRD 

to be certified for use in the Gulf of 

Mexico and South Atlantic EEZ shrimp 

fisheries, the extended funnel BRD to be 

provisionally certified for use in the 

western Gulf EEZ shrimp fishery, and 

the composite panel BRD to be 

provisionally certified for use in the 

Gulf of Mexico and South Atlantic EEZ 

shrimp fisheries, as is proposed in this 

rule. However, these three BRDs are 

used by few shrimp vessel owners at 

present, are more costly to purchase, 

and attain higher levels of shrimp loss 

on average relative to the predominantly 

used fisheye BRD. As such, no shrimp 

vessel owners would be expected to 

voluntarily switch from their currently 

used BRDs to these BRDs. As such, no 

direct impacts would result from their 

certification or provisional certification. 

Therefore, this proposed rule would not 

be expected to result in any direct 

impact on the profitability of any small 

business entities in the shrimp fishery 

or associated industries. However, 

substantial reductions in annual gross 

revenues could occur as a result of 

subsequent BRD decertification 

associated with future rulemaking. 

Depending upon the BRD type currently 

used and the availability of 

replacements, small vessels could lose 

from approximately $300 to $4,000, or 

from less than 1 percent to more than 

8 percent of annual gross revenues, 

while large vessels could experience a 

small gain of approximately $600 to a 

loss of $26,000, or a less than 1 percent 

gain to a greater than 14 percent loss. 

Even assuming net shop supply is able 

to meet demand, if all vessels are able 

to switch to certified BRDs, the range of 

impacts is only reduced to a maximum 

projected annual loss of $1,400 (3 

percent) for small vessels and $14,000 (8 

percent) for large vessels, though this 

last figure would apply to relatively few 

vessels, with the majority of large 

vessels projected to experience a loss of 

$3,500 to $4,000 (2 percent) reductions 

in annual gross revenues. 

The management measures 

considered in this proposed rule do not 

affect the reporting or record-keeping 

requirements for shrimp vessels. This 

proposed action, which only modifies 

the performance standards used in BRD 

certification, does not require additional 

records or report preparation. 

Two alternatives, the proposed 

alternative and the status quo, were 

considered for the action to modify the 

Manual. The status quo would continue 

overly restrictive and inflexible testing 

procedures and would not achieve 

NMFS’ objectives. 

Three alternatives, including the 

status quo, were considered for the 

action to change the BRD bycatch 

reduction criterion. Two alternatives 

contained multiple options, resulting in 

seven effective alternatives. As 

previously discussed, changing the 

criterion is an administrative action and 

would not simultaneously decertify 

BRDs currently in use or require 

immediate replacement. Decertification, 

with attendant costs, however, could be 


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expected to occur through subsequent 

action. 

The status quo would be expected to 

result in the decertification of the 

fisheye BRD for use in the Gulf 

commercial shrimp fishery, inducing 

industry-wide replacement costs of 

approximately $6.0-$10.1 million for all 

moratorium permit qualifiers, or 

approximately $4.6-$7.7 million if only 

active qualifiers elect to obtain 

moratorium permits. The minimum 

range of these costs is greater than that 

of the proposed rule because while the 

proposed rule could also lead to the 

decertification of the fisheye BRD via 

subsequent action, it would allow the 

use of the cheaper modified Jones-Davis 

BRD. 

The second alternative would 

continue to base the bycatch reduction 

target on juvenile red snapper, similar to 

the status quo, but considered three 

different minimum thresholds. The two 

lower thresholds (12 percent and 20 

percent) would be expected to allow 

continued use of the fisheye BRD, 

which is the most commonly used BRD, 

resulting in no direct adverse economic 

impacts and no increased indirect costs. 

Neither threshold, however, would meet 

the objective of national standard 9, 

which requires that bycatch be reduced 

to the extent practicable. Hence, these 

lower thresholds would not meet the 

Magnuson-Stevens Act’s requirements. 

The highest threshold (30 percent) 

would be expected to result in the same 

effects as the status quo, resulting in 

greater indirect adverse economic 

impacts than the proposed rule. 

The third alternative would base the 

bycatch reduction criterion on all finfish 

and considered four minimum 

thresholds, ranging from 10–40 percent. 

The two lower thresholds (10 percent 

and 20 percent) would be expected to 

allow continued use of fisheye BRDs, 

resulting in no direct adverse economic 

impacts and increased indirect gear 

costs. However, neither threshold would 

meet the Magnuson-Stevens Act 

requirement of achieving bycatch 

reduction to the extent practicable. The 

highest threshold (40 percent) would 

not be expected to result in any direct 

adverse economic impacts but would be 

expected to result in indirect increased 

gear costs equal to those of the status 

quo, which are higher than those of the 

proposed rule. This alternative would 

also set an excessive standard that few 

BRD designs could achieve. 

This rule contains approved 

collection-of-information requirements-- 

namely, the BRD certification process, 

consisting of applications for precertification or certification of a new 

BRD, pre-certification adjusting, the 

testing itself, the submission of the test 

results, application for observer 

position, and references for observers, 

subject to the Paperwork Reduction Act 

(PRA). These collection-of-information 

requirements have been approved by 

OMB under Control Number 0648–0345. 

The public reporting burden for this 

collection of information which 

includes the application, precertification phase, testing, and 

submission of results, is estimated to 

average 194 hours per test. The public 

reporting burden for applying for an 

observer position will average 1 hour 

per response, and the burden for 

obtaining references will average 1 hour 

per response. The collection consists of 

an Application Form, Vessel 

Information Form, Gear Specification 

Form, TED/BRD Specification Form, 

Station Sheet Form, Species 

Characterization Form, Length 

Frequency Form, and Condition and 

Fate Form. The average response time 

for each of these forms is 20 minutes, 

except for the Species Characterization 

Form which has a 2.8-hour response 

time and the Application Form which 

has a 2.3-hour response time. In 

addition, 4 hours will be needed to 

prepare the final report. These burden 

estimates include the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

Send comments regarding these burden 

estimates or any other aspect of the 

collection-of-information requirement, 

including suggestions for reducing the 

burden, to NMFS and to OMB (see 

ADDRESSES). 

Notwithstanding any other provision 

of law, no person is required to respond 

to, nor shall a person be subject to a 

penalty for failure to comply with, a 

collection of information subject to the 

requirements of the PRA unless that 

collection of information displays a 

currently valid OMB control number. 

List of Subjects in 50 CFR Part 622 

Fisheries, Fishing, Puerto Rico, 

Reporting and recordkeeping 

requirements, Virgin Islands. 

Dated: October 9, 2007. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

For the reasons set out in the 

preamble, 50 CFR part 622 is proposed 

to be amended as follows: 

PART 622—FISHERIES OF THE 

CARIBBEAN, GULF, AND SOUTH 

ATLANTIC 

1. The authority citation for part 622 

continues to read as follows: 

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

2. In § 622.41, paragraph (h) is 

removed and reserved and paragraph (g) 

is revised to read as follows: 

§ 622.41 Species specific limitations. 

* * * * * 

(g) BRD requirement for Gulf and 

South Atlantic shrimp. On a shrimp 

trawler in the Gulf EEZ or South 

Atlantic EEZ, each net that is rigged for 

fishing must have a BRD installed that 

is listed in paragraph (g)(2) of this 

section and is certified or provisionally 

certified for the area in which the 

shrimp trawler is located, unless 

exempted as specified in paragraphs 

(g)(1)(i) through (iv) of this section. A 

trawl net is rigged for fishing if it is in 

the water, or if it is shackled, tied, or 

otherwise connected to a sled, door, or 

other device that spreads the net, or to 

a tow rope, cable, pole, or extension, 

either on board or attached to a shrimp 

trawler. 

(1) Exemptions from BRD 

requirement—(i) Royal red shrimp 

exemption. A shrimp trawler is exempt 

from the requirement to have a certified 

or provisionally certified BRD installed 

in each net provided that at least 90 

percent (by weight) of all shrimp on 

board or offloaded from such trawler are 

royal red shrimp. 

(ii) Try net exemption. A shrimp 

trawler is exempt from the requirement 

to have a certified or provisionally 

certified BRD installed in a single try 

net with a headrope length of 16 ft (4.9 

m) or less provided the single try net is 

either pulled immediately in front of 

another net or is not connected to 

another net. 

(iii) Roller trawl exemption. A shrimp 

trawler is exempt from the requirement 

to have a certified or provisionally 

certified BRD installed in up to two 

rigid-frame roller trawls that are 16 ft 

(4.9 m) or less in length used or 

possessed on board. A rigid-frame roller 

trawl is a trawl that has a mouth formed 

by a rigid frame and a grid of rigid 

vertical bars; has rollers on the lower 

horizontal part of the frame to allow the 

trawl to roll over the bottom and any 

obstruction while being towed; and has 

no doors, boards, or similar devices 

attached to keep the mouth of the trawl 

open. 

(iv) BRD certification testing 

exemption. A shrimp trawler that is 

authorized by the RA to participate in 

the pre-certification testing phase or to 


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test a BRD in the EEZ for possible 

certification, has such written 

authorization on board, and is 

conducting such test in accordance with 

the ‘‘Bycatch Reduction Device Testing 

Manual’’ is granted a limited exemption 

from the BRD requirement specified in 

this paragraph (g). The exemption from 

the BRD requirement is limited to those 

trawls that are being used in the 

certification trials. All other trawls 

rigged for fishing must be equipped 

with certified or provisionally certified 

BRDs. 

(2) Procedures for certification and 

decertification of BRDs. The process for 

the certification of BRDs consists of two 

phases--an optional pre-certification 

phase and a required certification phase. 

The RA may also provisionally certify a 

BRD. 

(i) Pre-certification. The precertification phase allows a person to 

test and evaluate a new BRD design for 

up to 60 days without being subject to 

the observer requirements and rigorous 

testing requirements specified for 

certification testing in the ‘‘Bycatch 

Reduction Device Testing Manual.’’

(A) A person who wants to conduct 

pre-certification phase testing must 

submit an application to the RA, as 

specified in the ‘‘Bycatch Reduction 

Device Testing Manual.’’ The ‘‘Bycatch 

Reduction Device Testing Manual’’, 

which is available from the RA, upon 

request, contains the application forms. 

(B) After reviewing the application, 

the RA will determine whether to issue 

a letter of authorization (LOA) to 

conduct pre-certification trials upon the 

vessel specified in the application. If the 

RA authorizes pre-certification, the RA’s 

LOA must be on board the vessel during 

any trip involving the BRD testing. 

(ii) Certification. A person who 

proposes a BRD for certification for use 

in the Gulf EEZ or South Atlantic EEZ 

must submit an application to test such 

BRD, conduct the testing, and submit 

the results of the test in accordance with 

the ‘‘Bycatch Reduction Device Testing 

Manual.’’ The RA will issue a LOA to 

conduct certification trials upon the 

vessel specified in the application if the 

RA finds that: The operation plan 

submitted with the application meets 

the requirements of the ‘‘Bycatch 

Reduction Device Testing Manual’’; the 

observer identified in the application is 

qualified; and the results of any precertification trials conducted have been 

reviewed and deemed to indicate a 

reasonable scientific basis for 

conducting certification testing. If 

authorization to conduct certification 

trials is denied, the RA will provide a 

letter of explanation to the applicant, 

together with relevant recommendations 

to address the deficiencies resulting in 

the denial. If a BRD meets the 

certification criterion, as determined 

consistent with the ‘‘Bycatch Reduction 

Device Testing Manual’’, NMFS, 

through appropriate rulemaking 

procedures, will add the BRD to the list 

of certified BRDs in paragraph (g)(3) of 

this section; and provide the 

specifications for the newly certified 

BRD, including any special conditions 

deemed appropriate based on the 

certification testing results. 

(iii) Provisional certification. Based on 

data provided consistent with the 

‘‘Bycatch Reduction Device Testing 

Manual’’, the RA may provisionally 

certify a BRD if there is at least a 50–

percent probability the true reduction 

rate of the BRD is no more than 5 

percent less than the bycatch reduction 

criterion. Through appropriate 

rulemaking procedures, NMFS will add 

the BRD to the list of provisionally 

certified BRDs in paragraph (g)(3) of this 

section; and provide the specifications 

for the BRD, including any special 

conditions deemed appropriate based 

on the certification testing results. A 

provisional certification is effective for 

2 years from the date of publication of 

the notification in the Federal Register 

announcing the provisional 

certification. 

(iv) Decertification. The RA will 

decertify a BRD if NMFS determines the 

BRD does not meet the requirements for 

certification or provisional certification. 

Before determining whether to decertify 

a BRD, the RA will notify the 

appropriate Fishery Management 

Council in writing, and the public will 

be provided an opportunity to comment 

on the advisability of any proposed 

decertification. The RA will consider 

any comments from the Council and 

public, and if the RA elects to decertify 

the BRD, the RA will proceed with 

decertification via appropriate 

rulemaking. 

(3) Certified and provisionally 

certified BRDs—(i) Certified BRDS. The 

following BRDs are certified for use in 

the Gulf EEZ and South Atlantic EEZ 

unless indicated otherwise. 

Specifications of these certified BRDs 

are contained in Appendix D to this 

part. 

(A) Fisheye. 

(B) Gulf fisheye. 

(C) Jones-Davis. 

(D) Modified Jones-Davis. 

(E) Expanded mesh. 

(F) Extended funnel -South Atlantic 

EEZ only. 

(ii) Provisionally certified BRDs. The 

following BRDs are provisionally 

certified for use in the areas and for the 

time periods indicated. Specifications of 

these provisionally certified BRDs are 

contained in Appendix D to this part. 

(A) Extended funnel- Gulf EEZ only; 

through the date that is 2 years after the 

date of publication of the final rule 

implementing this regulatory 

amendment. 

(B) Composite panel -Gulf EEZ and 

South Atlantic EEZ; through the date 

that is 2 years after the date of 

publication of the final rule 

implementing this regulatory 

amendment. 

* * * * * 

3. In Appendix D to part 622, sections 

F and G are added to read as follows: 

Appendix D to Part 622—Specifications 

for Certified BRDs 

* * * * * 

F. Modified Jones-Davis. 

1. Description. The Modified Jones-Davis 

BRD is a variation to the alternative funnel 

construction method of the Jones-Davis BRD 

except the funnel is assembled by using 

depth-stretched and heat-set polyethylene 

webbing instead of the flaps formed from the 

extension webbing. In addition, no hoops are 

used to hold the BRD open. 

2. Minimum Construction and Installation 

Requirements. The Modified Jones-Davis 

BRD must contain all of the following. 

(a) Webbing extension. The webbing 

extension must be constructed from a single 

piece of 1 5/8–inch (4.1–cm) stretch mesh 

number 30 nylon 39 1⁄2 meshes by 150 

meshes. A tube is formed from the extension 

webbing by sewing the 39 1⁄2–mesh side 

together. 

(b) Funnel. The funnel must be constructed 

from two sections of 1 5/8–inch (4.1–cm) 

heat-set and depth-stretched polypropylene 

or polyethylene webbing. The two side 

sections must be rectangular in shape, 25 

meshes on the leading edge by 21 meshes 

deep. The 25–mesh leading edge of each 

polyethylene webbing section must be sewn 

evenly two meshes in from the front of the 

extension webbing starting 25 meshes from 

the top center on each side. The 21–mesh 

edge must be sewn to the extension webbing 

on a 9–bar and 1–mesh angle in the top and 

bottom, forming a V-shape funnel. 

(c) Cutting the escape opening. The leading 

edge of the escape openings must be located 

within 18 inches (45.7 cm) of the posterior 

edge of the turtle excluder device (TED) grid. 

The area of the escape opening must total at 

least 635 inches2 (4,097 cm2). Two escape 

openings, 6 meshes wide by 12 meshes deep, 

must be cut 4 meshes apart in the extension 

webbing, starting at the top center extension 

seam, 7 meshes back from the leading edge, 

and 30 meshes to the left and to the right 

(total of four openings). The four escape 

openings must be double selvaged for 

strength. 

(d) Cone fish deflector. The cone fish 

deflector is constructed of 2 pieces of 1 5/8– 

inch (4.1–cm) polypropylene or polyethylene 

webbing, 40 meshes wide by 20 meshes in 

length and cut on the bar on each side 

forming a triangle. Starting at the apex of the 

two triangles, the two pieces must be sewn 


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together to form a cone of webbing. The apex 

of the cone fish deflector must be positioned 

within 12 inches (30.5 cm) of the posterior 

edge of the funnel. 

(e) 11–inch (27.9–cm) cable hoop for cone 

deflector. A single hoop must be constructed 

of 5/16–inch (0.79–cm) or 3/8–inch (0.95–

cm) cable 34 1⁄2inches (87.6 cm) in length. 

The ends must be joined by a 3–inch (7.6–

cm) piece of 3/8–inch (0.95–cm) aluminum 

pipe pressed together with a 1/4–inch (0.64–

cm) die. The hoop must be inserted in the 

webbing cone, attached 10 meshes from the 

apex and laced all the way around with 

heavy twine. 

(f) Installation of the cone in the extension. 

The apex of the cone must be installed in the 

extension within 12 inches (30.5 cm) behind 

the back edge of the funnel and attached in 

four places. The midpoint of a piece of 

number 60 twine (or at least 4–mesh wide 

strip of number 21 or heavier webbing) 4 ft 

(1.22 m) in length must be attached to the 

apex of the cone. This piece of twine or 

webbing must be attached within 5 meshes 

of the aft edge of the funnel at the center of 

each of its sides. Two 12–inch (30.5–cm) 

pieces of number 60 (or heavier) twine must 

be attached to the top and bottom of the 11–

inch (27.9–cm) cone hoop. The opposite ends 

of these two pieces of twine must be attached 

to the top and bottom center of the extension 

webbing to keep the cone from inverting into 

the funnel. 

G. Composite Panel. 

1. Description. The Composite Panel BRD 

is a variation to the alternative funnel 

construction method of the Jones-Davis BRD 

except the funnel is assembled by using 

depth stretched and heat set polyethylene 

webbing with square mesh panels on the 

inside instead of the flaps formed from the 

extension webbing. In addition, no hoops are 

used to hold the BRD open. 

2. Minimum Construction and Installation 

Requirements. The Composite Panel BRD 

must contain all of the following: 

(a) Webbing extension. The webbing 

extension must be constructed from a single 

piece of 1 5/8–inch (4.1–cm) stretch mesh 

number 30 nylon 24 1⁄2 meshes by 150 

meshes. A tube is formed from the extension 

webbing by sewing the 24 1⁄2–mesh side 

together. The leading edge of the webbing 

extension must be attached no more than 4 

meshes from the posterior edge of the TED 

grid. 

(b) Funnel. The V-shaped funnel consists 

of two webbing panels attached to the 

extension along the leading edge of the 

panels. The top and bottom edges of the 

panels are sewn diagonally across the 

extension toward the center to form the 

funnel. The panels are 2–ply in design, each 

with an inner layer of 1 5/8–inch (4.1- cm) 

heat-set and depth-stretched polyethylene 

webbing and an outer layer constructed of 2–

inch (5.1–cm) square mesh webbing (1–inch 

bar). The inner webbing layer must be 

rectangular in shape, 36 meshes on the 

leading edge by 20 meshes deep. The 36- 

mesh leading edges of the polyethylene 

webbing should be sewn evenly to 24 meshes 

of the extension webbing 1 1⁄2 meshes from 

and parallel to the leading edge of the 

extension starting 12 meshes up from the 

bottom center on each side. Alternately sew 

2 meshes of the polyethylene webbing to 1 

mesh of the extension webbing then 1 mesh 

of the polyethylene webbing to 1 mesh of the 

extension webbing toward the top. The 

bottom 20–mesh edges of the polyethylene 

layers are sewn evenly to the extension 

webbing on a 2 bar 1 mesh angle toward the 

bottom back center forming a v-shape in the 

bottom of the extension webbing. The top 

20–mesh edges of the polyethylene layers are 

sewn evenly along the bars of the extension 

webbing toward the top back center. The 

square mesh layers must be rectangular in 

shape and constructed of 2–inch (5.1–cm) 

webbing that is 18 bars or squares on the 

leading edge and 32 bars or squares down 

each side. The 18 bar leading edge of each 

square mesh layer must be sewn evenly 1 bar 

to 2 meshes of the 36–mesh leading edge of 

the polyethylene section and the 32–bar sides 

are sewn evenly (in length) to the 20–mesh 

edges of the polyethylene webbing. This will 

form a v-shape funnel using the top of the 

extension webbing as the top of the funnel 

and the bottom of the extension webbing as 

the bottom of the funnel. 

(c) Cutting the escape opening. There are 

two escape openings on each side of the 

funnel. The leading edge of the escape 

openings must be located on the same row 

of meshes in the extension webbing as 

leading edge of the composite panels. The 

lower openings are formed by starting at the 

first attachment point of the composite 

panels and cutting 9 meshes in the extension 

webbing on an even row of meshes toward 

the top of the extension. Next, turn 90 

degrees and cut 15 points on an even row 

toward the back of the extension webbing. At 

this point turn and cut 18 bars toward the 

bottom front of the extension webbing. Finish 

the escape opening by cutting 6 points 

toward the original starting point. The top 

escape openings start 5 meshes above and 

mirror the lower openings. Starting at the 

leading edge of the composite panel and 5 

meshes above the lower escape opening, cut 

9 meshes in the extension on an even row of 

meshes toward the top of the extension. Next, 

turn 90 degrees, and cut 6 points on an even 

row toward the back of the extension 

webbing. Then cut 18 bars toward the bottom 

back of the extension. To complete the 

escape opening, cut 15 points forward toward 

the original starting point. The area of each 

escape opening must total at least 212 in2

(1,368 cm2). The four escape openings must 

be double salvaged for strength. 

Note: The ‘‘Bycatch Reduction Device 

Testing Manual’’ is published, excluding the 

Manual’s appendices, as an appendix to this 

document. See the contact under ADDRESSES

to obtain a complete Manual. This appendix 

will not appear in the Code of Federal 

Regulations. 

Appendix—Bycatch Reduction Device 

Testing Manual Definitions 

Bycatch reduction criterion is the standard 

by which a BRD candidate will be evaluated. 

To be certified for use by the shrimp fishery 

in the Exclusive Economic Zone off the 

southeastern United States (North Carolina 

through Texas), the BRD candidate must 

demonstrate a successful reduction of total 

finfish bycatch by at least 30 percent by 

weight. 

Bycatch reduction device (BRD) is any gear 

or trawl modification designed to allow 

finfish to escape from a shrimp trawl. 

BRD candidate is a BRD to be tested for 

certification for use in the commercial 

shrimp fishery of southeastern United States. 

Certified BRD is a BRD that has been tested 

according to the procedure outlined herein 

and has been determined by the RA as having 

met the bycatch reduction criterion. 

Control trawl means a trawl that is not 

equipped with a BRD during the evaluation. 

Evaluation and oversight personnel means 

scientists, observers, and other technical 

personnel who, by reason of their occupation 

or scientific expertise or training, are 

approved by the RA as qualified to evaluate 

and review the application and testing 

process. 

Experimental trawl means the trawl that is 

equipped with the BRD candidate during an 

evaluation. 

Net/side bias means when the net(s) being 

fished on one side of the vessel demonstrate 

a different catch rate (fishing efficiency) than 

the net(s) being fished on the other side of 

the vessel during paired-net tests. 

Observer means a person on the list 

maintained by the RA of individuals 

qualified (see Appendix H) to supervise and 

monitor a BRD certification test. 

Paired-net test means a tow during 

certification trials where a control net and an 

experimental net are fished simultaneously, 

and the catches and catch rates between the 

nets are compared. 

Provisional Certification Criterion means a 

secondary benchmark which would allow a 

BRD candidate to be used for a time-limited 

period in the southeastern shrimp fishery. To 

meet the criterion, the BRD candidate must 

demonstrate a successful reduction of total 

finfish bycatch by at least 25 percent by 

weight. 

Provisionally certified BRD means a BRD 

that has been tested according to the 

procedure outlined herein and has been 

determined by the RA as having met the 

provisional certification criterion. A BRD 

meeting the provisional certification criterion 

would be certified by the RA for a period of 

2 years. 

Regional Administrator (RA) means the 

Southeast Regional Administrator, National 

Marine Fisheries Service. 

Required measurements refers to the 

quantification of gear characteristics such as 

the dimensions and configuration of the 

trawl, the BRD candidate, the doors, or the 

location of the BRD in relation to other parts 

of the trawl gear that are used to assess the 

performance of the BRD candidate. 

Sample size means the number of 

successful tows (a minimum of 30 tows per 

test are required). 

Shrimp trawler means any vessel that is 

equipped with one or more trawl nets whose 

on-board or landed catch of shrimp is more 

than 1 percent, by weight, of all fish 

comprising its on-board or landed catch. 

Successful tow means that the control and 

experimental trawl were fished in accordance 

with the requirements set forth herein and 


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the terms and conditions of the letter of 

authorization, and there is no indication 

problematic events, such as those listed in 

Appendix D–5, occurred during the tow to 

impact or influence the fishing efficiency 

(catch) of one or both nets. 

Tow time means the total time (hours and 

minutes) an individual trawl was fished (i.e., 

the time interval beginning when the winch 

is locked after deploying the net overboard, 

and ending when retrieval of the net is 

initiated). 

Trawl means a net and associated gear and 

rigging used to catch shrimp. The terms trawl 

and net are used interchangeably throughout 

this Manual. 

Try net means a separate net pulled for 

brief periods by a shrimp trawler to test for 

shrimp concentrations or determine fishing 

conditions (e.g., presence of absence of 

bottom debris, jellyfish, bycatch, and 

seagrasses). 

Tuning a net means adjusting the trawl and 

its components to minimize or eliminate any 

net/side bias that exists between the two nets 

that will be used as the control and 

experimental trawls during the certification 

test. 

I. Introduction 

This Bycatch Reduction Device Testing 

Manual (Manual) establishes a standardized 

process for evaluating the ability of bycatch 

reduction device (BRD) candidates to meet 

the established bycatch reduction criterion, 

and be certified for use in the EEZ by the 

southeastern shrimp fishery. BRDs are 

required for use in shrimp trawls fished 

shoreward of the 100–fathom (183–meter) 

depth contour in the Gulf of Mexico, and 

within the EEZ of the South Atlantic region. 

Various BRD requirements also exist in 

state waters in the South Atlantic and off 

Florida and Texas in the Gulf of Mexico. 

Persons wishing to conduct BRD candidate 

evaluations exclusively in state waters do not 

need to apply to NMFS for authorization to 

conduct these tests, but should contact the 

appropriate state officials for authorizations. 

However, for data collected in such 

evaluations to be considered by NMFS for 

certification, the operations plan and data 

collection procedures must meet the criteria 

established in this Manual. 

II. BRD Candidate Evaluations 

A. Application 

Persons interested in evaluating the 

efficiency of a BRD candidate must apply for, 

receive, and have on board the vessel during 

the evaluation, a Letter of Authorization 

(LOA) from the Regional Administrator (RA). 

To receive an LOA, the applicant must 

submit the following documentation to the 

RA: (1) a completed application form 

(Appendix A); (2) a brief statement of the 

purpose and goal of the activity for which the 

LOA is requested; (3) an operations plan (see 

Section C below) describing the scope, 

duration, dates, and location of the test, and 

methods that will be used to conduct the test; 

(4) an 8.5- inch x 11–inch (21.6–cm x 27.9–

cm) diagram drawn to scale of the BRD 

design; (5) an 8.5–inch x 11–inch (21.6–cm 

x 27.9–cm) diagram drawn to scale of the 

BRD in the shrimp trawl; (6) a description of 

how the BRD is supposed to work; (7) a copy 

of the testing vessel’s U.S. Coast Guard 

documentation or its state registration; and 

(8) a copy of the testing vessel’s Federal 

commercial shrimp vessel permit. 

An applicant requesting an LOA to test an 

unapproved turtle excluder device (TED) as 

a BRD (including modifications to a TED that 

would enhance finfish exclusion) must first 

apply for and obtain from the RA an 

experimental TED authorization pursuant to 

50 CFR 223.207(e)(2). Applicants should 

contact the Protected Resources Division of 

NMFS’ Southeast Regional Office for further 

information. The LOA applicant must 

include a copy of that authorization with the 

application. 

Incomplete applications will be returned to 

the applicant along with a letter from the RA 

indicating what actions the applicant may 

take to make the application complete. 

There is no cost to the applicant for the 

RA’s administrative expenses such as 

reviewing applications, issuing LOAs, 

evaluating test results, or certifying BRDs. 

However, all other costs associated with the 

actual testing activities are the responsibility 

of the applicant, or any associated sponsor. 

If an application for an LOA is denied, the 

RA will provide a letter of explanation to the 

applicant, together with relevant 

recommendations to address the deficiencies 

that resulted in the denial. 

B. Allowable Activities 

Issuance of an LOA to test a BRD candidate 

in the South Atlantic or Gulf of Mexico 

allows the applicant to remove or disable the 

existing certified BRD in one outboard net (to 

create a control net), and to place the BRD 

candidate in another outboard net in lieu of 

a certified BRD (to create an experimental 

net). All other trawls under tow during the 

test must have a certified BRD, unless these 

nets are specifically exempted in the LOA. 

All trawls under tow during the test must 

have an approved TED unless operating 

under an authorization issued pursuant to 50 

CFR 223.207(e)(2), whereby the test is being 

conducted on an experimental TED. The 

LOA, and experimental TED authorization if 

applicable, must be on board the vessel while 

the test is being conducted. The term of the 

LOA will be 60 days; should circumstances 

require a longer test period, the applicant 

may apply to the RA for a 60-day extension. 

C. Operations Plan 

An operations plan should be submitted 

with the application describing a method to 

compare the catches of shrimp and fish in a 

control net (net without a BRD candidate 

installed) to the catches of the same species 

in an experimental net (a net configured 

identically to the control net but also 

equipped with the BRD candidate). 

The applicant may choose to conduct a 

pre-certification test of a prototype BRD 

candidate. A pre-certification test would be 

conducted when the intent is to assess the 

preliminary effectiveness of a prototype BRD 

candidate under field conditions, and to 

make modifications to the prototype BRD 

candidate during the field test. For precertification testing, the operations plan must 

include only a description of the scope, 

duration, dates, and location of the test, along 

with a description of methods that will be 

used to conduct the test. No observer is 

required for a pre-certification test, but the 

applicant may choose to use an observer to 

maintain a written record of the test. The 

applicant will maintain a written record for 

both the control and experimental net during 

each tow. Mandatory data collection is 

limited to the weight of the shrimp catch and 

the weight of the total finfish catch in each 

test net during each tow. These data must be 

submitted to NMFS at the conclusion of the 

test. Although not required, the applicant 

may wish to incorporate some or all the 

certification test requirements listed below. 

For a BRD candidate to be considered for 

certification, the operations plan must be 

more detailed and address the following 

topics: 

(1) The primary assumption in assessing 

the bycatch reduction efficiency of the BRD 

candidate during paired net tests is that the 

inclusion of the BRD candidate in the 

experimental net is the only factor causing a 

difference in catch from the control net. 

Therefore, the nets to be used in the tests 

must be calibrated (tuned) to minimize, to 

the extent practicable, any net/side bias in 

catch efficiency prior to beginning a test 

series, and tuned again after any gear 

modification or change. Additional 

information on tuning shrimp trawls to 

minimize bias is available from the 

Harvesting Technology Branch, Mississippi 

Laboratories, Pascagoula Facility, 3209 

Frederic Street, Pascagoula, MS 39568 1207; 

phone (601) 762 4591. 

(2) A standard tow time for a proposed 

evaluation should be defined. Tow times 

must be representative of the tow times used 

by commercial shrimp trawlers. The 

applicant should indicate what alternatives 

will be considered should the proposed tow 

time need adjustment once the test begins. 

(3) A minimum sample size of 30 

successful tows using a specific BRD 

candidate design is required for the statistical 

analysis described in Section F. No 

alterations of the BRD candidate design are 

allowed during a specific test series. If the 

BRD candidate design is altered, a new test 

series must be started. If a gear change (i.e., 

changing nets, doors, or rigging) is required, 

the nets should be tuned again before 

proceeding with further tests to complete the 

30–tow series. Minor repairs to the gear (e.g., 

sewing holes in the webbing; replacing a 

broken tickler chain with a new one of the 

same configuration) are not considered a gear 

change. 

(4) Biases that might result from the use of 

a try net should be reduced to the extent 

practicable. Total fishing times for a try net 

must be a consistent percentage of the total 

tow time during each tow made in the test. 

(5) To incorporate any net/side bias that 

remains after the tuning tows (e.g., the effect 

of a try net), or to accommodate for bias that 

develops between the control and 

experimental nets during the test, the 

operations plan should outline a timetable 

ensuring that an equal number of successful 

tows are made with the BRD candidate 

employed in both the port and starboard nets. 

(6) Mandatory data to be collected during 

a test includes: (1) detailed gear 

specifications as set forth in Appendices B 

and C, and (2) pertinent information 

concerning the location, duration and catch 


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from individual tows as set forth in 

Appendices D and F. 

(7) Following each paired tow, the catches 

from the control and experimental nets must 

be examined separately. This requires that 

the catch from each net be kept separate from 

each other, as well as from the catch taken 

in other nets fished during that tow. 

Mandatory data collections include recording 

the weight of the total catch of each test net 

(control and experimental nets), the catch of 

shrimp (i.e., brown, white, pink, rock, or 

other shrimp by species) in each test net, and 

the catch of total finfish in aggregate in each 

test net. 

(8) When recording the detailed 

information on the species found in the 

catch, if the catch in a net does not fill one 

standard 1–bushel [ca. 10 gallon] (30 liters) 

polyethylene shrimp basket (ca. 70 lb) (31.8 

kg), but the tow is otherwise considered 

successful, data must be collected on the 

entire catch of the net, and recorded as a 

‘‘select’’ sample (see Appendices D and F), 

indicating that the values represent the total 

catch of the particular net. If the catch in a 

net exceeds 70 lb (31.8 kg), a well-mixed 

sample consisting of one standard 1–bushel 

[ca. 10 gallon] (30 liters) polyethylene shrimp 

basket must be taken from the total catch of 

the net. The total weight of the sample must 

be recorded, as well as the weights (and 

numbers as applicable) of the various species 

or species groups found within that sample. 

These sample values can then be 

extrapolated to estimate the quantity of those 

species or species groups found in the total 

catch of the particular net. 

(9) Although not a criterion for 

certification, applicants testing BRD 

candidates are encouraged to collect 

additional information that may be pertinent 

to addressing bycatch issues in their 

respective regions. For example, In the 

western Gulf of Mexico applicants are 

especially encouraged to collect information 

on red snapper. If the applicant chooses to 

collect these data, the total (‘‘select’’) catch of 

the target species from each test net (not just 

from the sample) should be recorded along 

with lengths for as many as individuals per 

net per tow as set forth in Appendices E and 

F. Additional information in regard to the 

catch can be recorded on forms such as 

Appendix G. 

The operations plan should address what 

the applicant will do should it become 

necessary to deviate from the primary 

procedures outlined in the operations plan. 

The plan should describe in detail what will 

be done to continue the test in a reasonable 

manner that is consistent with the primary 

procedures. For example, it may become 

necessary to alter the pre-selected tow time 

to adapt to local fishing conditions to 

successfully complete the test. Prior to 

issuing a LOA, the RA may consult with 

evaluation personnel to review the 

acceptability of these proposed alterations. 

D. Observer Requirements 

It is the responsibility of the applicant to 

ensure that a qualified observer (see 

Appendix H) is on board the vessel during 

the certification tests. A list of qualified 

observers is available from the RA. Observers 

may include employees or individuals acting 

on behalf of NMFS, state fishery management 

agencies, universities, or private industry 

who meet the minimum requirements 

outlined in Appendix H. Any change in 

information or testing circumstances, such as 

replacement of the observer, must be 

reported to the RA within 30 days. Under 50 

CFR 600.746, when any fishing vessel is 

required to carry an observer as part of a 

mandatory observer program under the 

Magnuson-Stevens Fishery Conservation and 

Management Act (16 U.S.C. 1801, et seq.), the 

owner or operator of the vessel must comply 

with guidelines, regulations, and conditions 

to ensure their vessel is adequate and safe to 

carry an observer, and to allow normal 

observer functions to collect information as 

described in this Manual. A vessel owner is 

deemed to meet this requirement if the vessel 

displays one of the following: (i) a current 

Commercial Fishing Vessel Safety 

Examination decal, issued within the last 2 

years, that certifies compliance with 

regulations found in 33 CFR chapter I, and 

46 CFR chapter I; (ii) a certificate of 

compliance issued pursuant to 46 CFR 

28.710; or (iii) a valid certificate of inspection 

pursuant to 46 U.S.C. 3311. The observer has 

the right to check for major safety items, and 

if those items are absent or unserviceable, the 

observer may choose not to sail with the 

vessel until those deficiencies are corrected. 

E. Reports 

A report on the BRD candidate test results 

must be submitted by the applicant or 

associated sponsor before the RA will 

consider the BRD for certification. The report 

must contain a comprehensive description of 

the tests, copies of all completed data forms 

used during the tests, and photographs, 

drawings, and similar material describing the 

BRD. The captain, vessel owner, or the 

applicant must sign and submit the cover 

form (Appendix I). The report must include 

a description and explanation of any 

unanticipated deviations from the operations 

plan which occurred during the test. These 

deviations must be described in sufficient 

detail to indicate the tests were continued in 

a reasonable manner consistent with the 

approved operations plan procedures. 

Applicants must provide information on the 

cost of materials, labor, and installation of 

the BRD candidate. In addition, any unique 

or special circumstances of the tests, such as 

special operational characteristics or fishing 

techniques which enhance the BRD’s 

performance, should be described and 

documented as appropriate. 

F. Certification 

The RA will determine whether the 

required reports and supporting materials are 

sufficient to evaluate the BRD candidate’s 

efficiency. The determination of sufficiency 

would be based on whether the applicant 

adhered to the prescribed testing procedure 

or provided adequate justification for any 

deviations from the procedure during the 

test. If the RA determines that the data are 

sufficient for evaluation, the BRD candidate 

will be evaluated to determine if it meets the 

bycatch reduction criterion. In making a 

decision, the RA may consult with evaluation 

and oversight personnel. Based on the data 

submitted for review, the RA will determine 

the effectiveness of the BRD candidate, using 

appropriate statistical procedures such as 

Bayesian analyses, to determine if the BRD 

candidate meets the following criteria: 

(1) There is at least a 50–percent 

probability that the true reduction rate of the 

BRD candidate meets the bycatch reduction 

criterion (i.e., the BRD candidate 

demonstrates a best point estimate [sample 

mean] that meets the certification criterion); 

and 

(2) There is no more than a 10–percent 

probability that the true reduction rate of the 

BRD candidate is more than 5 percent less 

than the bycatch reduction criterion. 

To be certified for use in the fishery, the 

BRD candidate will have to satisfy both 

criteria. Criterion 1 will ensure that the 

observed reduction rate of the BRD candidate 

has an acceptable level of certainty that it 

meets the bycatch reduction criterion. 

Criterion 2 will ensure BRD candidates 

meeting the bycatch reduction criterion also 

demonstrate a reasonable degree of certainty 

that the observed reduction rate represents 

the true reduction rate of the BRD candidate. 

This determination ensures the operational 

use of the BRD candidate in the shrimp 

fishery will, on average, provide a level of 

bycatch reduction that meets the established 

bycatch reduction criterion. Interested parties 

may obtain details regarding the hypothesis 

testing procedure to be used by contacting 

the Harvesting Technology Branch, 

Mississippi Laboratories, Pascagoula Facility, 

3209 Frederic Street, Pascagoula, MS 39568 

1207; phone (228) 762 4591. Following a 

favorable determination of the certification 

analysis, the RA will certify the BRD (with 

any appropriate conditions as indicated by 

test results) and add the BRD to the list of 

certified BRDs in the Federal Register 

through appropriate rulemaking procedures. 

In addition, based on the data provided, 

the RA may provisionally certify a BRD 

candidate through appropriate rulemaking 

procedures based on the following criterion: 

There is at least a 50–percent probability 

that the true reduction rate of the BRD 

candidate is no more than 5 percent less than 

the bycatch reduction criterion (i.e., the BRD 

candidate demonstrates a best point estimate 

[sample mean] within 5 percent of the 

certification criterion). 

A provisional certification will be effective 

for 2 years from the date of publication in the 

Federal Register of a determination of 

provisional certification. This time period 

will allow additional wide scale industry 

evaluation of the BRD candidate, during 

which additional effort would be made to 

improve the efficiency of the BRD to meet the 

certification criterion. 

III. BRDs Not Certified and Resubmission 

Procedures 

The RA will advise the applicant, in 

writing, if a BRD is not certified. This 

notification will explain why the BRD was 

not certified and what the applicant may do 

to either modify the BRD or the testing 

procedures to improve the chances of having 

the BRD certified in the future. If certification 

was denied because of insufficient 

information, the RA will explain what 

information is lacking. The applicant must 

provide the additional information within 60 

days from receipt of such notification. If the 


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additional information is not provided 

within 60 days, the application will be 

deemed abandoned. If the RA subsequently 

certifies the BRD, the RA will announce the 

certification in the Federal Register. 

IV. Decertification of BRDs 

The RA will decertify a BRD whenever 

NMFS determines a BRD no longer satisfies 

the bycatch reduction criterion. Before 

determining whether to decertify a BRD, the 

RA will notify the appropriate Fishery 

Management Council in writing, and the 

public will be provided an opportunity to 

comment on the advisability of any proposed 

decertification. The RA will consider any 

comments from the Council and public, and 

if the RA elects to proceed with 

decertification of the BRD, the RA will 

publish proposed and final rules in the 

Federal Register with a comment period of 

not less than 15 days on the proposed rule. 

A provisionally certified BRD is valid for 

use in the fishery for 2 years from the date 

of publication of a notice in the Federal 

Register. If no new data are submitted to 

indicate the efficiency of the BRD has been 

improved, the RA will remove the BRD from 

the list of provisionally certified BRDs. 

V. Interactions with Sea Turtles 

The following section is provided for 

informational purposes. Sea turtles are listed 

under the Endangered Species Act as either 

endangered or threatened. The following 

procedures apply to incidental take of sea 

turtles under 50 CFR 223.206(d)(1): 

‘‘Any sea turtles taken incidentally during 

the course of fishing or scientific research 

activities must be handled with due care to 

prevent injury to live specimens, observed 

for activity, and returned to the water 

according to the following procedures: 

(A) Sea turtles that are actively moving or 

determined to be dead (as described in 

paragraph (B)(4) below) must be released 

over the stern of the boat. In addition, they 

must be released only when fishing or 

scientific collection gear is not in use, when 

the engine gears are in neutral position, and 

in areas where they are unlikely to be 

recaptured or injured by vessels. 

(B) Resuscitation must be attempted on sea 

turtles that are comatose or inactive by: 

(1) Placing the turtle on its bottom shell 

(plastron) so that the turtle is right side up 

and elevating its hindquarters at least 6 

inches (15.2 cm) for a period of 4 to 24 hours. 

The amount of elevation depends on the size 

of the turtle; greater elevations are needed for 

larger turtles. Periodically, rock the turtle 

gently left to right and right to left by holding 

the outer edge of the shell (carapace) and 

lifting one side about 3 inches (7.6 cm) then 

alternate to the other side. Gently touch the 

eye and pinch the tail (reflex test) 

periodically to see if there is a response. 

(2) Sea turtles being resuscitated must be 

shaded and kept damp or moist but under no 

circumstance be placed into a container 

holding water. A water-soaked towel placed 

over the head, carapace, and flippers is the 

most effective method in keeping a turtle 

moist. 

(3) Sea turtles that revive and become 

active must be released over the stern of the 

boat only when fishing or scientific 

collection gear is not in use, when the engine 

gears are in neutral position, and in areas 

where they are unlikely to be recaptured or 

injured by vessels. Sea turtles that fail to 

respond to the reflex test or fail to move 

within 4 hours (up to 24, if possible) must 

be returned to the water in the same manner 

as that for actively moving turtles. 

(4) A turtle is determined to be dead if the 

muscles are stiff (rigor mortis) and/or the 

flesh has begun to rot; otherwise, the turtle 

is determined to be comatose or inactive and 

resuscitation attempts are necessary. 

Any sea turtle so taken must not be 

consumed, sold, landed, offloaded, 

transshipped, or kept below deck.’’

[FR Doc. 07–5061 Filed 10–10–07; 11:09 am] 

BILLING CODE 3510–22–S 


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