[Federal Register Volume 74, Number 145 (Thursday, July 30, 2009)]
[Rules and Regulations]
[Pages 37952-37954]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18263]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 090224231-91118-02]
RIN 0648-AX54


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; State Waters Exemption

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

ACTION:  Final rule.

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SUMMARY:  This final rule allows an exemption from the minimum twine-
top mesh size for vessels issued Federal scallop permits and fishing 
exclusively in State of Maine (ME) waters. In addition, the state 
waters exemption provides an exemption from scallop days-at-sea (DAS) 
for limited access DAS scallop vessels, provided the vessel fishes 
exclusively in ME state waters. The scallop fishery regulations specify 
that a state may be eligible for a state waters exemption if it has a 
scallop fishery and a scallop conservation program that does not 
jeopardize the biomass and fishing mortality/effort limit objectives of 
the Atlantic Sea Scallop Fishery Management Plan (FMP). The regulations 
further state that the Regional Administrator, Northeast Region, NMFS 
(RA), shall determine which states meet those criteria and shall 
authorize the exemption for such states by publishing a rule in the 
Federal Register.

DATES:  Effective August 31, 2009.

ADDRESSES:  Documents supporting this action, including ME's request 
for the exemption, Amendment 11 to the FMP, and Framework 19 to the 
FMP, are available upon request from Patricia A. Kurkul, Regional 
Administrator, NMFS, Northeast Regional Office, 55 Great Republic 
Drive, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT:  Peter Christopher, Policy Analyst, 
978-281-9288; fax 978-281-9135.

SUPPLEMENTARY INFORMATION:

Background

    Amendment 11 to the FMP (Amendment 11), implemented on June 1, 2008 
(73 FR 20090, April 14, 2008), includes a comprehensive new management 
program for the general category scallop fleet. Amendment 11 created a 
Northern Gulf of Maine Scallop Management Area (NGOM Area) that 
includes a total allowable catch (TAC), gear restrictions, and a 
possession limit for the NGOM Area that are more restrictive than 
previous regulations for the area. Under Amendment 11, NMFS determined 
that the state waters exemptions for ME, New Hampshire (NH), and 
Massachusetts (MA), should be suspended, pending submission of 
additional information from those states regarding their state waters 
fisheries and the potential effects of allowing state waters exemptions 
under the Amendment 11 scallop regulations. In response, ME requested a 
state waters exemption and provided background information on the 
State's current scallop fishery management measures, the potential 
state waters scallop fishery, and information regarding potential new 
measures that the State was developing at the time.
    The scallop fishery regulations at Sec.  648.54(c) specify that a 
state may be eligible for the state waters exemption if it has a 
scallop fishery and a scallop conservation program that do not 
jeopardize the biomass and fishing mortality/effort limit objectives of 
the FMP. The regulations further state that the RA shall determine 
which states meet those criteria and shall publish a rule in the 
Federal Register, in accordance with the Administrative Procedure Act, 
to provide the exemption for such states.
    Based on the information submitted, NMFS determined that ME state 
waters qualify for the state waters exemption program under the FMP. 
The majority of ME's scallop fishery restrictions are either equally or 
more restrictive than Federal scallop fishing regulations. The 
exception is that ME allows vessels to use a minimum mesh size of 5.5-
inch (14-cm) twine tops on scallop dredges, while the Federal 
regulations require a 10-inch (25.4-cm) minimum twine-top mesh size. 
The state waters exemption therefore allows an exemption from the 10-
inch (25.4-cm) minimum twine-top mesh size. In addition, the state 
waters exemption provides an exemption from scallop DAS for limited 
access DAS scallop vessels, but does not exempt such vessels from any 
other Federal restrictions other than the minimum twine-top mesh size 
as noted above. To fish under the exemption, owners of scallop vessels 
are required to declare their intent to fish, and the vessel must fish, 
exclusively in ME state waters, subject to more restrictive state 
measures, if applicable. Vessels with Federal Incidental Catch scallop 
permits are still confined to the 40-lb (18-kg) limit under Federal 
regulations. The target TAC was set at 50,000 lb (22,680 kg) for these 
vessels based partly on the very low possession limit. Allowing these 
vessels to harvest more than 40 lb (18 kg) per trip could therefore 
compromise the TAC.
    As required by the scallop fishery regulations, exemptions can only 
be granted if the state's scallop fishery would not jeopardize the 
biomass and fishing mortality/effort limit objectives of the FMP. The 
exemption from the Federal twine-top restriction and DAS has no impact 
on the effectiveness of Federal management measures for the scallop 
fishery overall on the NGOM Area because the remainder of ME's scallop 
fishery regulations are more restrictive and would limit mortality and 
effort beyond the Federal management program. The twine top minimum 
mesh size restrictions are designed to help reduce bycatch in the 
scallop fishery. In particular, larger

[[Page 37953]]

twine top mesh size is effective at reducing the bycatch of flatfish, 
including yellowtail, winter, and summer flounder, in various areas. 
Exempting vessels in this program from the 10-inch (25.4-cm) twine top 
mesh size is not expected to increase bycatch or be inconsistent with 
the Scallop FMP or Magnuson-Sevens Act. The use of 5.5-inch (14-cm) 
twine top mesh size in the ME fishery is confined to approximately 2 
months. The possession limit of 200 lb (91 kg) of scallops in ME's 
waters also limits overall fishing time. In addition, vessels with 
Federal scallop permits may decide not to replace the 10-inch (25.4-cm) 
twine tops for the limited amount of time they might fish in ME state 
waters. Yellowtail and summer flounder are not common in most of ME 
state waters, and winter flounder concentrations are primarily offshore 
during winter months when ME's scallop fishery is open. Low 
concentrations of these flounder species would limit exposure of these 
species to the scallop dredge fishing under the exemption. For these 
reasons, exempting vessels from the 10-inch (25.4-cm) twine top mesh 
size is consistent with the FMP's overall objectives and National 
Standard 9 requirement of minimizing bycatch and bycatch mortality to 
the extent practicable. Compliance with other National Standards is not 
affected by the exemption since it is fully consistent with the Scallop 
FMP, which has been determined to be consistent with the Magnuson-
Stevens Act, including the National Standards and required provisions.
    ME is the only state that has requested an exemption. MA has not 
requested an exemption, and NH state agency staff worked with staff at 
the NMFS Northeast Regional Office to determine that new possession 
limit restrictions in NH state waters alleviated the need for the 
exemption program in NH waters.

Comments and Responses

    Comment: NMFS received one comment on the proposed rule, from ME's 
Department of Marine Resources (MEDMR). MEDMR requested that the final 
rule allow vessels with individual fishing quota (IFQ) scallop permits 
to fish under the ME state waters exemption program without having 
landings deducted from the vessels' IFQs. MEDMR suggested that this 
provision is warranted since vessels with limited access scallop 
permits (i.e., vessels with DAS) would be exempt from DAS if they 
enroll in the ME state waters exemption program.
    Response: Allowing vessels to fish in the state waters exemption 
without having landings deducted from their IFQ would be inconsistent 
with the measures in Amendment 11 for the NGOM Area. Moreover, such an 
exemption is not allowed under the state waters exemption provisions, 
and it is therefore excluded from the ME state waters exemption.
    The regulations for the state waters exemption program only 
authorize exemptions from DAS restrictions, gear, and possession 
limits. Inclusion of this provision would have had to be included in 
Amendment 11 to be considered in this exemption program. In addition, 
exemption from the IFQ program under the state waters exemption would 
not be consistent with conservation goals of the FMP. The measures in 
the NGOM Area were specifically designed to include a disincentive for 
some IFQ vessels to fish in the NGOM. The NGOM is subject to a very 
restrictive TAC, and there was concern that, if landings were not 
counted against a vessel's IFQ, the IFQ vessels would re-direct effort 
to the NGOM and harvest the NGOM Area TAC before vessels with dedicated 
NGOM Area permits could catch much of the TAC. The Council debated this 
issue at length and determined that the landings should count against 
the IFQ so that a vessel would not be inclined to fish in the NGOM Area 
just to avoid having landings count against its IFQ. State waters 
exemptions must be consistent with Federal management measures for the 
scallop fishery.

Classification

    The RA determined that this regulatory amendment is necessary for 
the conservation and management of the scallop fishery and that it is 
consistent with the Magnuson-Stevens Fishery Conservation and 
Management Act and other applicable laws.
    This 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 the 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 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: July 24, 2009.
James W. Balsiger,
Acting Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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


0
2. In Sec.  648.54, paragraphs (a), (b), (c), (d), and (g) are revised 
to read as follows:


Sec.  648.54  State waters exemption.

    (a) State eligibility for exemption. (1) A state may be eligible 
for a state waters exemption if it has a scallop fishery and a scallop 
conservation program that does not jeopardize the biomass and fishing 
mortality/effort limit objectives of the Scallop FMP.
    (2) The Regional Administrator shall determine which states have a 
scallop fishery and which of those states have a scallop conservation 
program that does not jeopardize the biomass and fishing mortality/
effort limit objectives of the Scallop FMP. In such case, the Regional 
Administrator shall publish a rule in the Federal Register, in 
accordance with the Administrative Procedure Act, to provide the 
exemption for such states.
    (3) A state that has been issued a state waters exemption under 
paragraph (a)(4) of this section must immediately notify the Regional 
Administrator of any changes in its scallop conservation program. The 
Regional Administrator shall review these changes and, if a 
determination is made that the state's conservation program jeopardizes 
the biomass and fishing mortality/effort limit objectives of the FMP, 
or that the state no longer has a scallop fishery, the Regional 
Administrator shall publish a rule in the Federal Register, in 
accordance with the Administrative Procedure Act, to eliminate the 
exemption for that state.
    (4) The Regional Administrator has determined that the State of 
Maine has a scallop fishery conservation program for its scallop 
fishery that does not jeopardize the biomass and fishing mortality/
effort limit objectives of the Scallop FMP. A vessel fishing in State 
of Maine waters may fish under the State of Maine state waters 
exemption,

[[Page 37954]]

subject to the exemptions specified in paragraphs (b) and (c) of this 
section, provided the vessel is in compliance with paragraphs (d) 
through (g) of this section.
    (b) Limited access scallop vessel exemption. Any vessel issued a 
limited access scallop permit is exempt from the DAS requirements 
specified in Sec.  648.53(b) while fishing exclusively landward of the 
outer boundary of the waters of a state that has been issued a state 
waters exemption under paragraph (a)(4) of this section, provided the 
vessel complies with paragraphs (d) through (g) of this section.
    (c) Gear and possession limit restrictions. Any vessel issued a 
limited access scallop permit, an LAGC NGOM, or an LAGC IFQ scallop 
permit is exempt from the minimum twine top mesh size for scallop 
dredge gear specified in Sec.  648.51(b)(4)(iv) while fishing 
exclusively landward of the outer boundary of the waters of the State 
of Maine under the state waters exemption specified in paragraph (a)(4) 
of this section, provided the vessel is in compliance with paragraphs 
(d) through (g) of this section.
    (d) Notification requirements. Vessels fishing under the exemptions 
specified in paragraph (b) and/or (c) of this section must notify the 
Regional Administrator in accordance with the provisions of Sec.  
648.10(e).
* * * * *
    (g) Applicability of other provisions of this part. A vessel 
fishing under the exemptions provided by paragraphs (b) and/or (c) of 
this section remains subject to all other requirements of this part.
[FR Doc. E9-18263 Filed 7-29-09; 8:45 am]
BILLING CODE 3510-22-S