81 FR 95056 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Shrimp Fishery of the Gulf of Mexico; Revision of Bycatch Reduction Device Testing Manual
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration Federal Register Volume 81, Issue 248 (December 27, 2016)
National Oceanic and Atmospheric Administration
Federal Register Volume 81, Issue 248 (December 27, 2016)
| Page Range | 95056-95059 | |
| FR Document | 2016-31067 |
[Federal Register Volume 81, Number 248 (Tuesday, December 27, 2016)] [Rules and Regulations] [Pages 95056-95059] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-31067] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 160815740-6740-01] RIN 0648-BG28-X Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Shrimp Fishery of the Gulf of Mexico; Revision of Bycatch Reduction Device Testing Manual 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), NMFS makes administrative revisions to the Bycatch Reduction Device Testing Manual (BRD Manual). The BRD Manual contains procedures for the testing and certification of BRDs for use in shrimp trawls in the exclusive economic zone (EEZ) in the Gulf of Mexico (Gulf) and South Atlantic. The changes to the BRD Manual remove outdated or obsolete data collection forms previously appended to the BRD Manual, and revise the text to make several procedural steps outlined in the BRD Manual clearer and easier to understand. The purpose of these revisions is to increase understanding of the BRD certification protocols. DATES: This final rule is effective January 26, 2017. ADDRESSES: For the complete BRD Manual, contact the Southeast Regional Office, Sustainable Fisheries Division at 727-824-5305, or download the BRD Manual from the Southeast Regional Office Web site at http://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_fisheries/shrimp/brd/index.html. FOR FURTHER INFORMATION CONTACT: Susan Gerhart, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected]. SUPPLEMENTARY INFORMATION: The shrimp fishery in the Gulf EEZ is managed under the Gulf FMP. The Gulf FMP was prepared by the Gulf of Mexico Fishery Management Council (Gulf Council) and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. The shrimp fishery in the South Atlantic EEZ is managed under the FMP for the Shrimp Fishery of the South Atlantic Region (South Atlantic FMP). The South Atlantic FMP was prepared by the South Atlantic Fishery Management Council (South Atlantic Council) and is implemented by NMFS under the authority of the Magnuson-Stevens Act by regulations at 50 CFR part 622. On September 29, 2016, NMFS published a proposed rule for the revisions to the BRD Manual and requested public comment (81 FR 66912). The proposed rule outlines the rationale for the action contained in this final rule. A summary of the BRD Manual revisions implemented by this final rule is provided below. The BRD Manual contains procedures for the testing and certification process of BRDs required for use in shrimp trawls in the Gulf and South Atlantic EEZs. NMFS has revised some text and instructions in the BRD Manual to make the manual clearer and easier to understand. Over time, the various data collection forms used by NMFS have been revised or discarded, making many of the forms included in the appendices to BRD Manual obsolete. NMFS has removed the applicable forms and revised the text within the BRD Manual to remove references to those forms. In addition, this final rule revises the instructions to state the required information that an applicant must submit for the testing and certification process. This information was previously on the now obsolete forms. Last, NMFS has revised the BRD Manual to use consistent terms. The changes to the BRD Manual were presented to the Gulf and South Atlantic Councils for their consideration and no substantive comments were received from either Council regarding these administrative changes. These changes to management measures do not add to or change any existing Federal regulations. Therefore, no codified text is associated with these changes to management measures. Comments and Responses No comments were received on either the BRD Manual or the proposed rule. Classification The Regional Administrator for the NMFS Southeast Region has determined that this final rule is consistent with the Gulf and South Atlantic FMPs, 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 Magnuson-Stevens Act provides the statutory basis for this rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this final rule. 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 rule would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination was published in the proposed rule and is not repeated here. No comments were received regarding the certification and NMFS has not received any new information that would affect its determination. As a result, a final regulatory flexibility analysis is not required and none was prepared. 0 The BRD Manual published as an appendix to a final rule published in the Federal Register on February 13, 2008 (73 FR 8219, February 13, 2008), is revised to read as follows. [[Page 95057]] Note: The following appendix will publish in the Federal Register but will not appear in the Code of Federal Regulations. See the contacts under ADDRESSES to obtain the complete BRD Manual. 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 (EEZ) 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 bycatch reduction device 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 a test. Experimental trawl means the trawl that is equipped with the BRD candidate during a test. 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. Gear Test Authorization (GTA) means a document signed by the RA that specifically exempts a person/vessel from Federal regulations requiring the use of BRDs in Federal waters. This GTA must be issued prior to conducting any tests on BRD candidates in Federal waters. 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 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 that 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. Shrimp trawler means any vessel that is equipped with one or more trawl nets where the 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 the terms and conditions of the Letter of Authorization, and there is no indication problematic events occurred during the tow that would impact or influence the fishing efficiency (catch) of one or both nets. Tow time means the total time (hours and minutes) an individual trawl was fished (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, although in most instances, ``trawl'' is used to reflect the entire fishing rig (e.g., doors, tickler chain, net, turtle excluder device, etc.), whereas a ``net'' is used to reflect a component of that fishing rig. 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 (BRD Manual) establishes a standardized process for evaluating whether bycatch reduction device (BRD) candidates meet the established bycatch reduction criterion. BRDs that meet the criterion can be certified for use in the EEZ by the southeastern shrimp fishery. Requirements for BRDs used in shrimp trawls in the Gulf of Mexico and South Atlantic can be found in 50 CFR part 622. The requirement to use BRDs in state waters varies by state. Persons wishing to conduct BRD candidate tests exclusively in state waters do not need to apply to the National Marine Fisheries Service (NOAA Fisheries) for authorization to conduct these tests but should contact the appropriate state officials for authorizations. However, for NOAA Fisheries to certify a BRD candidate for use in Federal waters, tests conducted in state waters must meet the criteria for the operations plan and data collection procedures established in this manual. II. BRD Candidate Tests A. Application Persons interested in evaluating the effectiveness of a BRD candidate to reduce finfish from a shrimp trawl must apply for, receive, and have on board the approved vessel(s) during the test, a Gear Test Authorization (GTA) from the NOAA Fisheries Southeast Regional Office Regional Administrator (RA). To receive a GTA, the applicant must submit the following documentation to the RA: (1) Name, address, and contact information of the applicant; (2) a list of vessels to be used during the sampling program, including the vessels' U.S. Coast Guard documentation numbers or state registration numbers; (3) name, address, and contact information of the vessel owners and/or vessel operators; (4) a brief statement of the purpose and goal of the activity for which the GTA is requested; (5) 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; (6) an 8.5 inch x 11 inch (21.6 cm x 27.9 cm) diagram drawn to scale of the BRD candidate design; (7) 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; and (8) a description of the mechanism by which the BRD candidate is expected to exclude finfish. An applicant requesting an GTA to test an unapproved turtle excluder device (TED) as a BRD (including modifications to a certified TED where the modifications would make the configuration of the TED illegal) 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 NOAA Fisheries Southeast Regional Office for further information. The GTA 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 GTA, 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 a GTA 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 a GTA 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 [[Page 95058]] test must have a certified BRD, unless these nets are specifically exempted in the GTA. All nets 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 GTA, and experimental TED authorization if applicable, must be on board the vessel(s) while the test is being conducted. The term of the GTA will be 60 days; should circumstances require a longer test period, the applicant may request 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 pre-certification 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. 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:The primary assumption in assessing the bycatch reduction effectiveness of a 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 NOAA Fisheries, Harvesting Technology Branch, Mississippi Laboratories, Pascagoula Facility, 3209 Frederic Street, Pascagoula, MS 39567; phone 601-762-4591. 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. 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.'' For tests conducted on twin-rig vessels (one net on the port side and one net on the starboard side), biases that might result from the use of a try net should be minimized. Total fishing times for a try net must be a consistent percentage of the total tow time during each tow made in the test. To incorporate any potential 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. Mandatory data to be collected during a test includes: (1) Detailed vessel and gear specifications and (2) pertinent information concerning the location, duration, and catch from individual tows as set forth in forms available from the Science and Research Director (SRD) of the Southeast Fisheries Science Center. Applicants should contact the NOAA Fisheries, Galveston Laboratory, 4700 Avenue U, Galveston, TX 77551; phone 409-766-3500. 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), and the weight of the total shrimp catch (i.e., brown, white, pink, rock, or other shrimp by species) in each test net. To determine the total finfish catch in each test net, two procedures may be used under different conditions. If the total catch in a net does not fill one standard 1-bushel (ca. 10 gal or 30 L) polyethylene shrimp basket (ca. 70 lb [31.8 kg] of catch), but the tow is otherwise considered successful, data must be collected on the entire catch of the net, and recorded as a ``select'' sample, 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 gal] (30 L) 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 weight (and number as applicable) of finfish in aggregate. The forms available from the SRD include record keeping opportunities for additional species; collection of this information is optional for certification evaluation purposes. However, 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 the bycatch of juvenile red snapper. Such data collection would follow the same procedure as sampling the total finfish catch. 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 GTA, the RA may consult with evaluation personnel to review the acceptability of these proposed alterations. D. Observer Requirement It is the responsibility of the applicant to ensure that a qualified observer is on board the vessel during the certification tests. Observers may include employees or individuals acting on behalf of NOAA Fisheries, state fishery management agencies, universities, or private industry. 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: (1) 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; (2) a certificate of compliance issued pursuant to 46 CFR 28.710; or (3) 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 test, copies of all completed data forms used during the test, and photographs, drawings, and similar material describing the BRD. The report must include a description and explanation of any unanticipated deviations from the operations plan that [[Page 95059]] occurred during the test. These deviations must be described in sufficient detail to allow evaluation and oversight personnel selected by NOAA Fisheries to determine if 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 effectiveness. 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 conditions: (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 percentage points less than the bycatch reduction criterion. To be certified for use in the fishery, the BRD candidate will have to satisfy both conditions. The first condition ensures that the observed reduction rate of the BRD candidate has an acceptable level of certainty that it meets the bycatch reduction criterion. The second condition ensures the BRD candidate demonstrates a reasonable degree of certainty 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 NOAA Fisheries, Harvesting Technology Branch, Mississippi Laboratories, Pascagoula Facility, 3209 Frederic Street, Pascagoula, MS 39567; 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 publish the notice of certification in the Federal Register. In addition, based on the data provided, if the BRD candidate does not meet the bycatch reduction certification criterion in accordance with the conditions outlined above, the RA may provisionally certify a BRD candidate based on the following condition: There is at least a 50-percent probability that the true reduction rate of the BRD candidate is no more than 5 percentage points less than the bycatch reduction criterion (i.e., the BRD candidate demonstrates a best point estimate [sample mean] within 5 percentage points of the certification criterion). A provisional certification will be effective for 2 years from the date of publication of a notice in the Federal Register announcing this 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 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 NOAA Fisheries 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(s) in writing, and the public will be provided an opportunity to comment on any proposed decertification through a publication of a proposed rule in the Federal Register with a comment period of not less than 15 days. The RA will consider any comments from the affected Council(s) and public, and if the RA elects to proceed with decertification of the BRD, the RA will publish a final rule in the Federal Register, which would remove the BRD from the certified list of 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. Authority: 16 U.S.C. 1801 et seq. Dated: December 19, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 2016-31067 Filed 12-23-16; 8:45 am] BILLING CODE 3510-22-P
![95056 Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Rules and Regulations
appears and add in their place ‘‘CCAA’’; for use in shrimp trawls in the exclusive of the forms included in the appendices
and economic zone (EEZ) in the Gulf of to BRD Manual obsolete. NMFS has
■ f. Revise paragraph (d)(8) to read as set Mexico (Gulf) and South Atlantic. The removed the applicable forms and
forth below: changes to the BRD Manual remove revised the text within the BRD Manual
outdated or obsolete data collection to remove references to those forms. In
§ 17.32 Permits—general. forms previously appended to the BRD addition, this final rule revises the
* * * * * Manual, and revise the text to make instructions to state the required
(d) * * * several procedural steps outlined in the information that an applicant must
(2) * * * BRD Manual clearer and easier to submit for the testing and certification
(ii) The implementation of the terms understand. The purpose of these process. This information was
of the CCAA is reasonably expected to revisions is to increase understanding of previously on the now obsolete forms.
provide a net conservation benefit to the the BRD certification protocols. Last, NMFS has revised the BRD Manual
affected covered species by contributing DATES: This final rule is effective to use consistent terms.
to the conservation of the species January 26, 2017. The changes to the BRD Manual were
included in the permit, and the CCAA ADDRESSES: For the complete BRD presented to the Gulf and South Atlantic
otherwise complies with the Candidate Manual, contact the Southeast Regional Councils for their consideration and no
Conservation Agreement with Office, Sustainable Fisheries Division at substantive comments were received
Assurances policy available from the 727–824–5305, or download the BRD from either Council regarding these
Service; Manual from the Southeast Regional administrative changes.
* * * * * Office Web site at http:// These changes to management
(8) Duration. The duration of a CCAA sero.nmfs.noaa.gov/sustainable_ measures do not add to or change any
covered by a permit issued under this fisheries/gulf_fisheries/shrimp/brd/ existing Federal regulations. Therefore,
paragraph (d) must be sufficient to index.html. no codified text is associated with these
achieve a net conservation benefit to the changes to management measures.
FOR FURTHER INFORMATION CONTACT:
species covered by the permit and the Susan Gerhart, NMFS Southeast Comments and Responses
Agreement and otherwise comply with Regional Office, telephone: 727–824– No comments were received on either
the Candidate Conservation Agreement 5305, email: susan.gerhart@noaa.gov. the BRD Manual or the proposed rule.
with Assurances policy available from
SUPPLEMENTARY INFORMATION: The
the Service. shrimp fishery in the Gulf EEZ is Classification
Dated: December 20, 2016. managed under the Gulf FMP. The Gulf The Regional Administrator for the
Daniel M. Ashe, FMP was prepared by the Gulf of NMFS Southeast Region has determined
Director, U.S. Fish and Wildlife Service. Mexico Fishery Management Council that this final rule is consistent with the
[FR Doc. 2016–31060 Filed 12–23–16; 8:45 am] (Gulf Council) and is implemented by Gulf and South Atlantic FMPs, the
BILLING CODE 4333–15–P NMFS under the authority of the Magnuson-Stevens Act, and other
Magnuson-Stevens Fishery applicable laws.
Conservation and Management Act This final rule has been determined to
(Magnuson-Stevens Act) by regulations be not significant for purposes of
DEPARTMENT OF COMMERCE Executive Order 12866.
at 50 CFR part 622.
The shrimp fishery in the South The Magnuson-Stevens Act provides
National Oceanic and Atmospheric the statutory basis for this rule. No
Administration Atlantic EEZ is managed under the FMP
for the Shrimp Fishery of the South duplicative, overlapping, or conflicting
Atlantic Region (South Atlantic FMP). Federal rules have been identified. In
50 CFR Part 622 addition, no new reporting, record-
The South Atlantic FMP was prepared
[Docket No. 160815740–6740–01] by the South Atlantic Fishery keeping, or other compliance
Management Council (South Atlantic requirements are introduced by this
RIN 0648–BG28–X final rule.
Council) and is implemented by NMFS
under the authority of the Magnuson- The Chief Counsel for Regulation of
Fisheries of the Caribbean, Gulf of the Department of Commerce certified
Mexico, and South Atlantic; Shrimp Stevens Act by regulations at 50 CFR
part 622. to the Chief Counsel for Advocacy of the
Fishery of the Gulf of Mexico; Revision Small Business Administration during
of Bycatch Reduction Device Testing On September 29, 2016, NMFS
published a proposed rule for the the proposed rule stage that this rule
Manual would not have a significant economic
revisions to the BRD Manual and
AGENCY: National Marine Fisheries requested public comment (81 FR impact on a substantial number of small
Service (NMFS), National Oceanic and 66912). The proposed rule outlines the entities. The factual basis for this
Atmospheric Administration (NOAA), rationale for the action contained in this determination was published in the
Commerce. final rule. A summary of the BRD proposed rule and is not repeated here.
ACTION: Final rule. Manual revisions implemented by this No comments were received regarding
final rule is provided below. the certification and NMFS has not
SUMMARY: In accordance with the The BRD Manual contains procedures received any new information that
framework procedures for adjusting for the testing and certification process would affect its determination. As a
asabaliauskas on DSK3SPTVN1PROD with RULES
management measures of the Fishery of BRDs required for use in shrimp result, a final regulatory flexibility
Management Plan for the Shrimp trawls in the Gulf and South Atlantic analysis is not required and none was
Fishery of the Gulf of Mexico (Gulf EEZs. NMFS has revised some text and prepared.
FMP), NMFS makes administrative instructions in the BRD Manual to make ■ The BRD Manual published as an
revisions to the Bycatch Reduction the manual clearer and easier to appendix to a final rule published in the
Device Testing Manual (BRD Manual). understand. Over time, the various data Federal Register on February 13, 2008
The BRD Manual contains procedures collection forms used by NMFS have (73 FR 8219, February 13, 2008), is
for the testing and certification of BRDs been revised or discarded, making many revised to read as follows.
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![95058 Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Rules and Regulations
test must have a certified BRD, unless these will be considered should the proposed tow additional species; collection of this
nets are specifically exempted in the GTA. time need adjustment once the test begins. information is optional for certification
All nets under tow during the test must have • A minimum sample size of 30 successful evaluation purposes. However, applicants
an approved TED unless operating under an tows using a specific BRD candidate design testing BRD candidates are encouraged to
authorization issued pursuant to 50 CFR is required for the statistical analysis collect additional information that may be
223.207(e)(2), whereby the test is being described in Section F. No alterations of the pertinent to addressing bycatch issues in
conducted on an experimental TED. The BRD candidate design are allowed during a their respective regions. For example, in the
GTA, and experimental TED authorization if specific test series. If the BRD candidate western Gulf of Mexico applicants are
applicable, must be on board the vessel(s) design is altered, a new test series must be especially encouraged to collect information
while the test is being conducted. The term started. If a gear change (i.e., changing nets, on the bycatch of juvenile red snapper. Such
of the GTA will be 60 days; should doors, or rigging) is required, the nets should data collection would follow the same
circumstances require a longer test period, be tuned again before proceeding with procedure as sampling the total finfish catch.
the applicant may request a 60-day further tests to complete the 30-tow series. The operations plan should address what
extension. Minor repairs to the gear (e.g., sewing holes the applicant will do should it become
in the webbing; replacing a broken tickler necessary to deviate from the primary
C. Operations Plan chain with a new one of the same procedures outlined in the operations plan.
An operations plan should be submitted configuration) are not considered a ‘‘gear The plan should describe in detail what will
with the application describing a method to change.’’ be done to continue the test in a reasonable
compare the catches of shrimp and fish in a • For tests conducted on twin-rig vessels manner that is consistent with the primary
control net (net without a BRD candidate (one net on the port side and one net on the procedures. For example, it may become
installed) to the catches of the same species starboard side), biases that might result from necessary to alter the pre-selected tow time
in an experimental net (a net configured the use of a try net should be minimized.
to adapt to local fishing conditions to
identically to the control net but also Total fishing times for a try net must be a
successfully complete the test. Prior to
equipped with the BRD candidate). consistent percentage of the total tow time
issuing a GTA, the RA may consult with
The applicant may choose to conduct a during each tow made in the test.
evaluation personnel to review the
pre-certification test of a prototype BRD • To incorporate any potential net/side
bias that remains after the tuning tows (e.g., acceptability of these proposed alterations.
candidate. A pre-certification test would be
conducted when the intent is to assess the the effect of a try net), or to accommodate for D. Observer Requirement
preliminary effectiveness of a prototype BRD bias that develops between the control and
It is the responsibility of the applicant to
candidate under field conditions, and to experimental nets during the test, the
ensure that a qualified observer is on board
make modifications to the prototype BRD operations plan should outline a timetable
ensuring that an equal number of successful the vessel during the certification tests.
candidate during the field test. For pre- Observers may include employees or
tows are made with the BRD candidate
certification testing, the operations plan must individuals acting on behalf of NOAA
employed in both the port and starboard nets.
include only a description of the scope, Fisheries, state fishery management agencies,
• Mandatory data to be collected during a
duration, dates, and location of the test, along universities, or private industry. Any change
test includes: (1) Detailed vessel and gear
with a description of methods that will be specifications and (2) pertinent information in information or testing circumstances, such
used to conduct the test. No observer is concerning the location, duration, and catch as replacement of the observer, must be
required for a pre-certification test, but the from individual tows as set forth in forms reported to the RA within 30 days. Under 50
applicant may choose to use an observer to available from the Science and Research CFR 600.746, when any fishing vessel is
maintain a written record of the test. The Director (SRD) of the Southeast Fisheries required to carry an observer as part of a
applicant will maintain a written record for Science Center. Applicants should contact mandatory observer program under the
both the control and experimental net during the NOAA Fisheries, Galveston Laboratory, Magnuson Stevens Fishery Conservation and
each tow. Mandatory data collection is 4700 Avenue U, Galveston, TX 77551; phone Management Act (16 U.S.C. 1801, et seq.), the
limited to the weight of the shrimp catch and 409–766–3500. owner or operator of the vessel must comply
the weight of the total finfish catch in each • Following each paired tow, the catches with guidelines, regulations, and conditions
test net during each tow. Although not from the control and experimental nets must to ensure their vessel is adequate and safe to
required, the applicant may wish to be examined separately. This requires that carry an observer, and to allow normal
incorporate some or all the certification test the catch from each net be kept separate from observer functions to collect information as
requirements listed below. each other, as well as from the catch taken described in this Manual. A vessel owner is
For a BRD candidate to be considered for in other nets fished during that tow. deemed to meet this requirement if the vessel
certification, the operations plan must be Mandatory data collections include recording displays one of the following: (1) A current
more detailed and address the following the weight of the total catch of each test net Commercial Fishing Vessel Safety
topics: (control and experimental nets), and the Examination decal, issued within the last 2
• The primary assumption in assessing the weight of the total shrimp catch (i.e., brown, years, that certifies compliance with
bycatch reduction effectiveness of a BRD white, pink, rock, or other shrimp by species) regulations found in 33 CFR, chapter I, and
candidate during paired net tests is that the in each test net. 46 CFR, chapter I; (2) a certificate of
inclusion of the BRD candidate in the • To determine the total finfish catch in compliance issued pursuant to 46 CFR
experimental net is the only factor causing a each test net, two procedures may be used 28.710; or (3) a valid certificate of inspection
difference in catch from the control net. under different conditions. If the total catch pursuant to 46 U.S.C. 3311. The observer has
Therefore, the nets to be used in the tests in a net does not fill one standard 1-bushel the right to check for major safety items, and
must be calibrated (tuned) to minimize, to (ca. 10 gal or 30 L) polyethylene shrimp if those items are absent or unserviceable, the
the extent practicable, any net/side bias in basket (ca. 70 lb [31.8 kg] of catch), but the observer may choose not to sail with the
catch efficiency prior to beginning a test tow is otherwise considered successful, data vessel until those deficiencies are corrected.
series, and tuned again after any gear must be collected on the entire catch of the
modification or change. Additional E. Reports
net, and recorded as a ‘‘select’’ sample,
information on tuning shrimp trawls to indicating that the values represent the total A report on the BRD candidate test results
minimize bias is available from NOAA catch of the particular net. If the catch in a must be submitted by the applicant or
asabaliauskas on DSK3SPTVN1PROD with RULES
Fisheries, Harvesting Technology Branch, net exceeds 70 lb (31.8 kg), a well-mixed associated sponsor before the RA will
Mississippi Laboratories, Pascagoula Facility, sample consisting of one standard 1-bushel consider the BRD for certification. The report
3209 Frederic Street, Pascagoula, MS 39567; [ca. 10 gal] (30 L) polyethylene shrimp basket must contain a comprehensive description of
phone 601–762–4591. must be taken from the total catch of the net. the test, copies of all completed data forms
• A standard tow time for a proposed The total weight of the sample must be used during the test, and photographs,
evaluation should be defined. Tow times recorded, as well as the weight (and number drawings, and similar material describing the
must be representative of the tow times used as applicable) of finfish in aggregate. BRD. The report must include a description
by commercial shrimp trawlers. The • The forms available from the SRD and explanation of any unanticipated
applicant should indicate what alternatives include record keeping opportunities for deviations from the operations plan that
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![Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Rules and Regulations 95059
occurred during the test. These deviations In addition, based on the data provided, if paragraph (B)(4) below) must be released
must be described in sufficient detail to the BRD candidate does not meet the bycatch over the stern of the boat. In addition, they
allow evaluation and oversight personnel reduction certification criterion in must be released only when fishing or
selected by NOAA Fisheries to determine if accordance with the conditions outlined scientific collection gear is not in use, when
the tests were continued in a reasonable above, the RA may provisionally certify a the engine gears are in neutral position, and
manner consistent with the approved BRD candidate based on the following
in areas where they are unlikely to be
operations plan procedures. Applicants must condition:
provide information on the cost of materials, There is at least a 50-percent probability recaptured or injured by vessels.
labor, and installation of the BRD candidate. that the true reduction rate of the BRD (B) Resuscitation must be attempted on sea
In addition, any unique or special candidate is no more than 5 percentage turtles that are comatose or inactive by:
circumstances of the tests, such as special points less than the bycatch reduction (1) Placing the turtle on its bottom shell
operational characteristics or fishing criterion (i.e., the BRD candidate (plastron) so that the turtle is right side up
techniques, which enhance the BRD’s demonstrates a best point estimate [sample and elevating its hindquarters at least 6
performance, should be described and mean] within 5 percentage points of the inches (15.2 cm) for a period of 4 to 24 hours.
documented as appropriate. certification criterion). The amount of elevation depends on the size
A provisional certification will be effective
F. Certification of the turtle; greater elevations are needed for
for 2 years from the date of publication of a
notice in the Federal Register announcing larger turtles. Periodically, rock the turtle
The RA will determine whether the
required reports and supporting materials are this provisional certification. This time gently left to right and right to left by holding
sufficient to evaluate the BRD candidate’s period will allow additional wide-scale the outer edge of the shell (carapace) and
effectiveness. The determination of industry evaluation of the BRD candidate, lifting one side about 3 inches (7.6 cm) then
sufficiency would be based on whether the during which additional effort would be alternate to the other side. Gently touch the
applicant adhered to the prescribed testing made to improve the efficiency of the BRD eye and pinch the tail (reflex test)
procedure or provided adequate justification to meet the certification criterion. periodically to see if there is a response.
for any deviations from the procedure during III. BRDs Not Certified and Resubmission (2) Sea turtles being resuscitated must be
the test. If the RA determines that the data Procedures shaded and kept damp or moist but under no
are sufficient for evaluation, the BRD circumstance be placed into a container
candidate will be evaluated to determine if The RA will advise the applicant, in
writing, if a BRD is not certified. This holding water. A water-soaked towel placed
it meets the bycatch reduction criterion. In
notification will explain why the BRD was over the head, carapace, and flippers is the
making a decision, the RA may consult with
evaluation and oversight personnel. Based on not certified and what the applicant may do most effective method in keeping a turtle
the data submitted for review, the RA will to either modify the BRD or the testing moist.
determine the effectiveness of the BRD procedures to improve the chances of having (3) Sea turtles that revive and become
candidate, using appropriate statistical the BRD certified in the future. If certification active must be released over the stern of the
procedures such as Bayesian analyses, to was denied because of insufficient boat only when fishing or scientific
determine if the BRD candidate meets the information, the RA will explain what collection gear is not in use, when the engine
following conditions: information is lacking. The applicant must
gears are in neutral position, and in areas
(1) There is at least a 50-percent probability provide the additional information within 60
days from receipt of such notification. If the where they are unlikely to be recaptured or
that the true reduction rate of the BRD injured by vessels. Sea turtles that fail to
candidate meets the bycatch reduction RA subsequently certifies the BRD, the RA
will announce the certification in the Federal respond to the reflex test or fail to move
criterion (i.e., the BRD candidate
Register. within 4 hours (up to 24, if possible) must
demonstrates a best point estimate [sample
mean] that meets the certification criterion); be returned to the water in the same manner
IV. Decertification of BRDs
and as that for actively moving turtles.
The RA will decertify a BRD whenever (4) A turtle is determined to be dead if the
(2) There is no more than a 10-percent NOAA Fisheries determines a BRD no longer
probability that the true reduction rate of the muscles are stiff (rigor mortis) and/or the
satisfies the bycatch reduction criterion.
BRD candidate is more than 5 percentage flesh has begun to rot; otherwise, the turtle
Before determining whether to decertify a
points less than the bycatch reduction BRD, the RA will notify the appropriate is determined to be comatose or inactive and
criterion. Fishery Management Council(s) in writing, resuscitation attempts are necessary.
To be certified for use in the fishery, the and the public will be provided an Any sea turtle so taken must not be
BRD candidate will have to satisfy both opportunity to comment on any proposed consumed, sold, landed, offloaded,
conditions. The first condition ensures that decertification through a publication of a transshipped, or kept below deck.
the observed reduction rate of the BRD proposed rule in the Federal Register with a
candidate has an acceptable level of certainty comment period of not less than 15 days. The Authority: 16 U.S.C. 1801 et seq.
that it meets the bycatch reduction criterion. RA will consider any comments from the
The second condition ensures the BRD affected Council(s) and public, and if the RA Dated: December 19, 2016.
candidate demonstrates a reasonable degree elects to proceed with decertification of the Samuel D. Rauch III,
of certainty the observed reduction rate BRD, the RA will publish a final rule in the Deputy Assistant Administrator for
represents the true reduction rate of the BRD Federal Register, which would remove the Regulatory Programs, National Marine
candidate. This determination ensures the BRD from the certified list of BRDs.
operational use of the BRD candidate in the Fisheries Service.
shrimp fishery will, on average, provide a V. Interactions With Sea Turtles [FR Doc. 2016–31067 Filed 12–23–16; 8:45 am]
level of bycatch reduction that meets the The following section is provided for BILLING CODE 3510–22–P
established bycatch reduction criterion. informational purposes. Sea turtles are listed
Interested parties may obtain details under the Endangered Species Act as either
regarding the hypothesis testing procedure to endangered or threatened. The following
be used by contacting NOAA Fisheries, procedures apply to incidental take of sea
asabaliauskas on DSK3SPTVN1PROD with RULES
Harvesting Technology Branch, Mississippi turtles under 50 CFR 223.206(d)(1):
Laboratories, Pascagoula Facility, 3209 Any sea turtles taken incidentally during
Frederic Street, Pascagoula, MS 39567; phone the course of fishing or scientific research
228–762–4591. Following a favorable activities must be handled with due care to
determination of the certification analysis, prevent injury to live specimens, observed
the RA will certify the BRD (with any for activity, and returned to the water
appropriate conditions as indicated by test according to the following procedures:
results) and publish the notice of certification (A) Sea turtles that are actively moving or
in the Federal Register. determined to be dead (as described in
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Document Created: 2018-02-14 09:13:36
Document Modified: 2018-02-14 09:13:36
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective January 26, 2017. | |
| Contact | Susan Gerhart, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected] | |
| FR Citation | 81 FR 95056 | |
| RIN Number | 0648-BG28 |
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