[Federal Register Volume 82, Number 124 (Thursday, June 29, 2017)]
[Proposed Rules]
[Pages 29470-29473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13579]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 170301213-7213-01]
RIN 0648-BG70


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: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to allow an exemption to enable 
vessels with Federal Limited Access General Category Individual Fishing 
Quota permits from the State of Maine and Commonwealth of Massachusetts 
to continue fishing in their respective state waters once NMFS has 
announced that the Federal Northern Gulf of Maine total allowable catch 
has been fully harvested in a given year. Additionally, Massachusetts 
has requested that Federal Limited Access General Category Northern 
Gulf of Maine permits also be included in its exemption. Both states 
have requested this exemption as part of the Scallop State Water 
Exemption Program. This proposed rule is necessary to solicit comments 
on the state requests and to inform the public that NMFS is considering 
granting the requests.

DATES: Comments must be received by 5 p.m., local time, on July 14, 
2017.

ADDRESSES: Documents supporting this action, including the State of 
Maine's and Commonwealth of Massachusetts' requests for the exemption 
and Framework Adjustment 28 to the Atlantic Sea Scallop Fishery 
Management Plan (FMP) are available upon request from John K. Bullard, 
Regional Administrator, NMFS, Greater

[[Page 29471]]

Atlantic Regional Fisheries Office, 55 Great Republic Drive, 
Gloucester, MA 01930.
    You may submit comments on this document, identified by NOAA-NMFS- 
2017-0042, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0042, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: John K. Bullard, Regional Administrator, NMFS, 
Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, 
Gloucester, MA 01930. Mark the outside of the envelope, ``Comments on 
Maine and Massachusetts State Waters Exemption Program.''
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).

FOR FURTHER INFORMATION CONTACT: Shannah Jaburek, Fishery Management 
Specialist, 978-282-8456.

SUPPLEMENTARY INFORMATION:

Background

    The Scallop State Waters Exemption Program has been in place as an 
element of the Scallop FMP since 1994 (Amendment 4 to the FMP, Final 
Rule published January 19, 1994, 59 FR 2757). At that time, the purpose 
of the program was to allow Federal permit holders to fish in the state 
waters fishery (where Federal and state laws are inconsistent) and 
alongside state-only permitted vessels. The program specifies that a 
state with a scallop fishery may be eligible for state waters 
exemptions if it has a scallop conservation program that does not 
jeopardize the biomass and fishing mortality/effort limit objectives of 
the FMP. Amendment 11 to the FMP (April 14, 2008, 73 FR 20089) and 
Framework 26 to the FMP (April 21, 2015, 80 FR 22119) expanded the 
program to include the Northern Gulf of Maine (NGOM) measures. If we 
find that a state is eligible for the Program, we can exempt federally 
permitted scallop vessels fishing in state waters from a limited number 
of Federal scallop regulations as follows: Limited access scallop 
vessels may fish in state waters outside of scallop days-at-sea; 
limited access and limited access general category (LAGC) individual 
fishing quota (IFQ) vessels may be exempt from Federal gear and 
possession limit restrictions; and vessels with selected scallop permit 
types may be exempted from regulations pertaining to the NGOM 
management area.
    Originally, we authorized exemptions for Maine, New Hampshire, and 
Massachusetts under Amendment 4 to the Scallop FMP. When we implemented 
Amendment 11 to the FMP in 2008, we suspended the original exemptions 
pending additional information from the states regarding their state 
waters fisheries. Maine was the only state to request a new exemption, 
and has received the state waters exemptions from gear and effort 
control restrictions for vessels issued Federal scallop permits and 
fishing exclusively in Maine waters since August of 2009.
    Framework 26 to the FMP specifically added the exemption that would 
enable some scallop vessels to continue to fish in state waters within 
the NGOM management area after the Federal NGOM total allowable catch 
(TAC) is reached. Any state interested in applying for this new 
exemption must identify the scallop-permitted vessels to which this 
would apply (i.e., limited access, LAGC IFQ, LAGC incidental, or LAGC 
NGOM). Vessels would still not be able to fish for scallops in the 
Federal portion of the NGOM once the TAC is harvested. Maine 
subsequently revised its exemption in 2015 to allow NGOM vessels to 
fish in state waters after the NGOM closes. This exemption was issued 
in November 2015, and will remain in place for the foreseeable future. 
Maine has requested an additional exemption for the upcoming season. 
Massachusetts has requested its first state waters exemption since we 
suspended it with the implementation of Amendment 11.
    We received a request from Maine on December 9, 2016, to expand its 
current exemption to allow the four IFQ-permitted vessels with Maine 
state-waters permits to fish in the Maine state-waters portion of the 
NGOM management area. Maine's scallop fishery restrictions have not 
changed from 2015; therefore, they remain either equally or more 
restrictive than Federal scallop fishing regulations and would still 
limit mortality and effort.
    Massachusetts also sent a request on November 10, 2016, to exempt 
LAGC IFQ federally permitted vessels that also hold a state permit. 
Massachusetts also requested that NGOM federally permitted vessels be 
exempt as well; this is the same exemption that was granted to Maine in 
2015. Only the northern portion of Massachusetts state waters, 
approximately Boston and north, fall within the NGOM management area. 
The fishery in this area has traditionally been split between a handful 
of state-only vessels and 12 vessels with both Federal and state 
permits to fish for scallops. Of these vessels with dual permits, six 
traditionally fish in both Federal and state waters while the other six 
only fish in Federal waters.
    After reviewing Massachusetts's request, we required some 
additional information, which we received on December 19, 2016. After 
further review, we determined that Massachusetts has a robust 
management program with controls in place that are equal to or more 
restrictive than Federal regulations when fishing for scallops in state 
waters. Massachusetts restricts scallop fishing activity in its waters 
with limited entry by requiring the state Coastal Access Permit, for 
which there is currently a moratorium and is only transferrable with 
the State Director of Marine Fisheries approval. Therefore, increased 
fishing effort in the future is not a significant concern. Vessels 
fishing for scallops in Massachusetts state waters also have a daily 
scallop possession limit of 200 lb (90.7kg). This possession limit is 
equivalent to the NGOM management area, but more restrictive than the 
600-lb (272.1-kg) Federal possession limit for IFQ vessels south of the 
NGOM area in Federal waters.
    Scallop effort has increased in the NGOM in recent years as the 
stock has improved in both state and Federal waters. In 2016, the NGOM 
management area TAC was fully harvested and was closed for the first 
time since the management area was created in 2008. In 2017, the area 
was closed on March 23, just over three weeks into the new fishing year 
and approximately two months earlier than in 2016. State-only permitted 
scallop vessels are able to fish in state waters after the Federal 
closure, and this provision would allow those vessels with the 
requested Federal permit to continue to fish in state waters along with 
vessels without Federal permits. Based on the information Maine and 
Massachusetts have submitted regarding their scallop conservation 
programs, NMFS has preliminarily determined that

[[Page 29472]]

Massachusetts qualifies for the NGOM state waters exemptions under the 
Scallop FMP as requested and Maine qualifies for the expansion of the 
state waters exemption for Maine waters. 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.
    Allowing for this NGOM exemption would have no impact on the 
effectiveness of Federal management measures for the scallop fishery 
overall or within the NGOM management area because the NGOM Federal TAC 
is set based only on the Federal portion of the resource. Maine and 
Massachusetts are the only states that have requested a NGOM closure 
exemption, and only for state permit holders that also hold a Federal 
LAGC IFQ or NGOM scallop permit. As such, all other federally permitted 
scallop vessels would be prohibited from retaining, possessing, and 
landing scallops from within the NGOM management area, in both Federal 
and state waters, once the NGOM hard TAC is fully harvested.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the FMP, other provisions of the Magnuson-Stevens Act, 
and other applicable law, subject to further consideration after public 
comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Council for Regulation of the Department of Commerce 
certified to the Chief Council for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities.
    The ability for states with territorial waters located within the 
NGOM management area to apply for this specific exemption was included 
into the Scallop FMP through Framework 26, which was implemented in May 
2015.
    Entities that own vessels with Federal LAGC NGOM and IFQ permits 
are the business entities affected by this action. The Small Business 
Administration (SBA) defines a small business in shellfish fishery as a 
firm that is independently owned and operated with receipts of less 
than $11 million annually (see NMFS final rule revising the small 
business size standard for commercial fishing, 80 FR 81194, December 
29, 2015). NMFS issued 217 LAGC IFQ permits in 2015, and 119 of these 
vessels actively fished for scallops that year. Of the 217 vessels 
issued LAGC IFQ permits, 88 are homeported in Massachusetts and 6 are 
homeported in Maine. NMFS issued 99 LAGC NGOM permits in 2015, and 24 
of these vessels actively fished. However, out of the 99 LAGC NGOM 
permitted vessels, 44 are homeported in Massachusetts and 40 are 
homeported in Maine. NMFS has determined that all 84 LAGC NGOM 
permitted vessels and 94 LAGC IFQ permitted vessels from both states 
could benefit from this action. Fishing year 2015 data were used for 
this certification because these data are the most recent complete data 
set for a fishing year. Although any of these 119 LAGC IFQ and 44 LAGC 
NGOM vessels could be impacted, Maine and Massachusetts estimated that 
the action would impact 4 Maine vessels and 12 Massachusetts vessels. 
The discussion therefore focuses on the impacts to these 16 vessels, 
but the impacts described below would increase with additional vessels.
    Individually-permitted vessels may hold permits for several 
fisheries, harvesting species of fish that are regulated by several 
different fishery management plans, even beyond those impacted by the 
proposed action. Furthermore, multiple permitted vessels and/or permits 
may be owned by entities with various personal and business 
affiliations. For the purposes of this certification, ``ownership 
entities'' are defined as those entities with common ownership as 
listed on the permit application. Only permits with identical ownership 
are categorized as an ``ownership entity.'' For example, if five 
permits have the same seven persons listed as co-owners on their permit 
applications, those seven persons would form one ``ownership entity,'' 
that holds those five permits. If two of those seven owners also co-own 
additional vessels, that ownership arrangement would be considered a 
separate ``ownership entity'' for the purpose of this certification.
    On June 1 of each year, ownership entities are identified based on 
a list of all permits for the most recent complete calendar year. 
Matching the potentially impacted 2015 fishing year LAGC IFQ permits to 
calendar year 2015 ownership data results in 87 distinct ownership 
entities for the LAGC IFQ fleet. Of these, and based on the SBA 
guidelines, 84 of the LAGC IFQ entities are categorized as small. The 
remaining 3 entities were determined to be large businesses classified 
as a shellfish business. Based on available information for LAGC NGOM 
permits, NMFS has determined that all 44 NGOM permitted vessels from 
Massachusetts that would be impacted by this rule are small entities 
under the SBA guidelines.
    If vessels harvest the full NGOM TAC before the end of a given 
fishing year, this exemption allowing vessels to continue to fish in 
their state's respective waters would positively impact 4 LAGC IFQ-
permitted vessels home ported in Maine, and up to 12 vessels home 
ported in Massachusetts that have either an LAGC IFQ or NGOM Federal 
permit. When Framework 26 added the exemption in 2015, using fishing 
year 2013 data the average landings value was determined to be $240,159 
per LAGC IFQ permit and $39,693 per LAGC NGOM permit. These values 
include scallops that were landed in state waters because both LAGC IFQ 
and NGOM vessels have the option to fish in state waters when the NGOM 
management area is open. When the NGOM TAC is reached and the area 
closes, the LAGC NGOM permitted vessels can no longer fish and the LAGC 
IFQ vessels must travel further from home in order to harvest scallops; 
therefore, the vessel's individual income is affected. Massachusetts 
estimates that with this exemption, vessels could harvest up to an 
additional 100,000 lb worth an estimated $1.23 million dollars at a 
2015 average price of $12.26/lb. Maine estimates that with this 
exemption, the four vessels would save on fuel, food, and maintenance 
costs associated with steaming to fishing grounds outside of the NGOM 
management area by fishing closer to individual homeports. These cost 
savings would vary by individual vessel, but would have an overall 
positive economic benefit. If additional vessels take advantage of the 
proposed exemption (e.g., more of the potentially impacted small 
business entities as described above), the positive impacts would only 
increase. As a result, an initial regulatory flexibility analysis is 
not required and none has been prepared.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: June 23, 2017.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

[[Page 29473]]

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, paragraph (a)(4) is revised to read as follows:


Sec.  648.54   State waters exemption.

    (a) * * *
    (4) The Regional Administrator has determined that the State of 
Maine and Commonwealth of Massachusetts both have 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, subject to the exemptions 
specified in paragraphs (b) and (c) of this section, provided the 
vessel is in compliance with paragraphs (e) through (g) of this 
section. In addition, a vessel issued a Federal Northern Gulf of Maine 
or Limited Access General Category Individual Fishing Quota permit 
fishing in State of Maine or Commonwealth of Massachusetts waters may 
fish under their respective state waters exemption specified in 
paragraph (d) of this section, provided the vessel is in compliance 
with paragraphs (e) through (g) of this section.
* * * * *
[FR Doc. 2017-13579 Filed 6-28-17; 8:45 am]
 BILLING CODE 3510-22-P