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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 622
          - [Docket No. 100121040-0177-01]
          - RIN 0648-AY58

# AGENCY:

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

# ACTION:

Final rule.

# SUMMARY:

In accordance with the framework procedures for adjusting management measures of 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 provisionally recertifies two bycatch reduction devices (BRDs) and revises the construction and installation requirements of one of these BRD designs in the southeastern shrimp fishery. The intended effect of this rule is to improve bycatch reduction in the shrimp fishery and better meet the requirements of National Standard 9.

# DATES:

This rule is effective June 23, 2010.

# ADDRESSES:

Copies of supporting documentation for this final rule, which includes a regulatory impact review and a regulatory flexibility act analysis may be obtained from Steve Branstetter, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701-5505.

# FOR FURTHER INFORMATION CONTACT:

Steve Branstetter, telephone: 727-824-5305.

# SUPPLEMENTARY INFORMATION:

The fishery for shrimp in the exclusive economic zone (EEZ) of the Gulf is managed under the FMP prepared by the Gulf of Mexico Fishery Management Council. The fishery for shrimp in the EEZ of the South Atlantic is managed under the FMP prepared by the South Atlantic Fishery Management Council. The FMPs are implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

## Background

Regulations implementing Amendment 2 to the South Atlantic Shrimp FMP (73 FR 18536, April 16, 1997) established BRD requirements in the South Atlantic EEZ. The rule established a certification criterion, descriptions of BRD designs and configurations allowed for use in the South Atlantic shrimp fishery, as well as procedures to develop and test new BRDs for certification.

                    Regulations implementing Amendment 9 to the Gulf Shrimp FMP were published April 14, 1998 (63 FR 18139), and established a requirement, with limited exceptions, for the use of certified BRDs in shrimp trawls towed in the Gulf 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. The rule established descriptions of BRD designs and configurations allowed for use in the western Gulf shrimp fishery.                          ( print page 28761)    

To better address the requirements of National Standard 9 of the Magnuson-Stevens 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).

In accordance with the BRD framework procedures of the Gulf FMP, NMFS recently modified the existing BRD certification criterion for the western Gulf (73 FR 8219, February 13, 2008) to be consistent with the criterion for the eastern Gulf and South Atlantic. The new standardized certification criterion for the Gulf of Mexico and the South Atlantic specifies data must demonstrate a BRD achieves a 30-percent reduction in the weight of finfish bycatch to be certified for use in the southeastern shrimp fishery. In addition, this rule established a provisional certification criterion. To be provisionally certified, on a time-limited basis, the data must demonstrate that there is at least a 50-percent probability that the BRD reduces the weight of finfish bycatch by 25 percent.

In accordance with these new criteria, NMFS provisionally certified the Extended Funnel BRD for use in the Gulf of Mexico, and the Composite Panel BRD for use in both the Gulf of Mexico and the South Atlantic. By regulation, the provisional certification of both BRDs automatically expired on February 16, 2010. However, no new information exists regarding the effectiveness of these BRDs as they are used in the fisheries that would indicate if the BRDs have been improved, or that they do not continue to meet the provisional certification requirement. Collection of new data and sufficient industry-level evaluation of these BRDs was hindered, in part, because of delays in getting compatible regulations allowing their use in state waters off Texas and state waters off both the Gulf of Mexico and South Atlantic coasts of Florida. Texas developed compatible regulations allowing the use of these two BRDs in November 2008; Florida in December 2009. Thus, fishermen in these states have not had the opportunity to use these new BRDs or to make improvements to them. In addition, net shops that would be manufacturing these BRDs needed to wait on the final regulatory specifications before they could begin producing the BRDs, thus there was an initial shortage of these BRDs.

Therefore, to address the expiration of the initial provisional certification of these two BRDs and allow for sufficient evaluation of these designs by industry, on April 20, 2010, NMFS published a proposed rule (75 FR 20548) to provisionally recertify the extended funnel BRD and the composite panel BRD and revise the construction and installation requirements of the composite panel BRD design in the southeastern shrimp fishery.

Because no new information exists to decertify these BRDs, and because of the limited time fishermen in two major shrimping states have had to evaluate these BRDs, this final rule renews the provisional certification for these two BRD types for an additional two years through May 24, 2012. This final rule also revises the construction and installation requirements for the Composite Panel BRD in order to provide more flexibility for what material and size mesh may be used to construct this particular BRD design. The intended effect of this rule is to maintain adequate bycatch reduction in the shrimp fishery and better meet the requirements of National Standard 9.

NMFS received no comments on the proposed rule and, therefore, no changes have been made in this final rule.

## Classification

The Administrator, Southeast Region, NMFS, determined that this final rule is necessary for the conservation and management of the southeastern shrimp fishery and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

# List of Subjects in 50 CFR Part 622

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

Dated: May 18, 2010.

Eric C. Schwaab,

Assistant Administrator For Fisheries, National Marine Fisheries Service.

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

# PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

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

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

2. In § 622.41, paragraphs (g)(3)(ii)(A) and (B) are revised to read as follows: 

§ 622.41

(g) * * *

(3) * * *

(ii) * * *

(A) Extended funnel—Gulf EEZ only; through May 24, 2012.

(B) Composite Panel—Gulf EEZ and South Atlantic EEZ; through May 24, 2012.

3. In Appendix D to part 622, section G, the first sentence of paragraph 2(a), and paragraph 2(b) are revised to read as follows: 

# Appendix D to Part 622—Specifications for Certified BRDs

G. * * *

2. * * *

                            (a) * * * The webbing extension must be constructed from a single rectangular piece of 1                             1/2                            -inch to 1                             3/4                            -inch (3.8-cm to 4.5-cm) stretch mesh with dimensions of 24                             1/2                             meshes by 150 to 160 meshes. * * *                        

                            (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                             1/2                            -inch to 1                             5/8                            -inch (3.8-cm to 4.1-cm) heat-set and depth-stretched polyethylene webbing and an outer layer constructed of no larger than 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 no larger than 2-inch (5.1-cm) webbing that is 18 inches (45.7 cm) in length on the leading edge. The depth                                   ( print page 28762)                                of the square mesh layer must be no more than 2 inches (5.1 cm) less than the 20 mesh side of the inner polyethylene layer when stretched taught. The 18-inch (45.7-cm) leading edge of each square mesh layer must be sewn evenly to the 36-mesh leading edge of the polyethylene section and the 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.                        

[FR Doc. 2010-12384 Filed 5-21-10; 8:45 am]

BILLING CODE 3510-22-S