[Federal Register Volume 82, Number 205 (Wednesday, October 25, 2017)]
[Rules and Regulations]
[Pages 49297-49299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23133]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 170301213-7869-02]
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: Final rule.

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SUMMARY: NMFS approves and implements an exemption for vessels with 
Federal Limited Access General Category Individual Fishing Quota 
permits from the State of Maine and the Commonwealth of Massachusetts. 
This exemption enables the vessels 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 program 
specifies that a state may be eligible for a state waters exemption to 
specific Federal regulations 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. Based on the information that Maine and Massachusetts 
have submitted, NMFS has determined that both states qualify for this 
exemption and that this exemption will not have an impact on the 
effectiveness of Federal management measures for the scallop fishery 
overall or within the Northern Gulf of Maine management area.

DATES: Effective October 25, 2017.

ADDRESSES: Documents supporting this action, including the State of 
Maine and Commonwealth of Massachusetts requests for the exemption, the 
Categorical Exclusion, 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 Atlantic 
Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 
01930.
    Copies of the Permit Holder Letter are available from John K. 
Bullard, Regional Administrator, NMFS, Greater Atlantic Regional 
Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930-2298, 
or available on the Internet at http://www.greateratlantic.fisheries.noaa.gov/sustainable/species/scallop/.

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

SUPPLEMENTARY INFORMATION:

Background

    The Scallop State Waters Exemption Program, described at Sec.  
648.54, 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 and effort 
limit objectives of the Scallop FMP. Under the Program, if NMFS 
determines that a state is eligible, federally permitted scallop 
vessels fishing in state waters may be exempted from specific Federal 
scallop regulations. One of these exemptions enables some scallop 
vessels to continue to fish in state waters within the Northern Gulf of 
Maine (NGOM) management area once the Federal NGOM total allowable 
catch (TAC) is reached. Any state interested in applying for this 
exemption must identify the scallop-permitted vessels that would be 
subject to the exemption (i.e., limited access, limited access general 
category (LAGC) individual fishing quota (IFQ), LAGC incidental, or 
LAGC NGOM). No vessel is permitted to fish for scallops in the Federal 
portion of the NGOM once the TAC is harvested. We provided a broader 
description of the Scallop State Waters Exemption Program in the 
preamble of the proposed rule (82 FR 29470; June 29, 2017) for this 
action. We are not repeating that information here.
    We received a request from Maine to expand its current exemptions 
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 
once we project the Federal TAC to be fully harvested. Massachusetts 
also sent a request to exempt LAGC IFQ and NGOM-federally permitted 
vessels that also hold a state permit. 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

[[Page 49298]]

scallops. Of these LAGC vessels with dual permits, six traditionally 
fish in both Federal and state waters while the other six only fish in 
Federal waters. We do not anticipate any other vessels would fish under 
this exemption because it would not be economically beneficial. This 
provision allows vessels to continue to fish in state waters along with 
state permitted vessels that do not have Federal permits.
    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 submitted 
regarding their scallop conservation programs, and considering comments 
received during the public comment period, we determined that both 
states qualify for the NGOM state waters exemption under the Scallop 
FMP. Maine's regulations are the same as when they applied for this 
exemption for NGOM-permitted vessels in 2015. 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 approval of the Director 
of Marine Fisheries. Therefore, increased additional 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 (90.7 kg). This possession limit is equivalent to the NGOM 
management area, but more restrictive than the 600-lb (272.2-kg) 
Federal possession limit for IFQ vessels south of the NGOM area in 
Federal waters. Both Maine and Massachusetts's scallop fishery 
restrictions are as restrictive as Federal scallop fishing regulations 
and this exemption will not jeopardize the biomass and fishing 
mortality and effort limit objectives of the FMP. Allowing for this 
NGOM exemption will 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. In addition, LAGC IFQ vessels cannot 
land scallops beyond the vessel's yearly allocation or any additional 
quota that is leased in. 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 TAC is 
fully harvested.

Comments and Responses

    We received eight comments on the proposed rule during the public 
comment period. Four of the eight comments were from industry members. 
Two were from industry-based organizations (the Maine Coast Fishermen's 
Association (MCFA) and The Cape Cod Commercial Fisherman's Alliance 
(CCCFA)). Two comments from the public had no relevance to the rule and 
are not addressed further.
    Comment 1: One industry member commented that IFQ vessels should be 
allowed to land scallops beyond their IFQ allocations when fishing in 
state waters because scallops from within state waters are not 
considered in setting the NGOM TAC or the overall overfishing limit/
annual biological catch.
    Response: Extending the exemption to allow LAGC IFQ permits land 
scallops over their IFQ limits was not requested by Maine or 
Massachusetts. Even if it were, extending the exemption is beyond the 
scope of the state waters exemption program because it would alter the 
underpinnings of the current LAGC IFQ program and would require 
consideration by the New England Fishery Management Council, likely as 
part of an amendment to the FMP. Moreover, allowing harvesting of 
scallops over the limit of the Federal quota for these vessels would 
not be consistent with the current Federal management program.
    Comment 2: The CCCFA, MCFA, and two members of the industry 
commented that these exemptions would give the industry members more 
flexibility and stability, and it will support shoreside operations and 
businesses.
    Response: We agree.
    Comment 3: MCFA's comment implied that Limited Access permits were 
included in the exemption, in addition to LAGC IFQ and NGOM permits.
    Response: To clarify MCFS's comment, the exemption in this rule 
only includes NGOM and LAGC IFQ-permitted vessels. Maine did not 
request any exemptions for limited access vessels. Limited access 
vessels fishing in state waters in Maine currently are not subject to 
days at sea, but have no other exemptions in state waters or in other 
states.
    Comment 4: One member of the industry expressed frustration with 
the disparity of how we manage the NGOM Management Area between the 
LAGC and Limited Access (LA) fleets in relation to the NGOM TAC.
    Response: The allocations for the NGOM TAC for both the LA and LAGC 
fleets and how they are currently managed is beyond the scope of the 
state waters exemption program and this rule. However, for the 2018-
2019 scallop fishing year, the New England Fishery Management Council 
has made the future management of the NGOM a priority.

Changes From the Proposed Rule

    There are no changes from the proposed rule.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this final rule is 
consistent with the FMP, other provisions of the Magnuson-Stevens Act, 
and other applicable law.
    The Office of Management and Budget (OMB) has determined that this 
rule is not significant according to Executive Order (E.O.) 12866.
    This final rule does not contain policies with federalism or 
``takings'' implications, as those terms are defined in E.O. 13132 and 
E.O. 12630, respectively.
    The Assistant Administrator for Fisheries has determined that the 
need to implement these measures in an expedited manner, in order to 
relieve restrictions on the scallop fleet, constitutes good cause, 
under authority contained in 5 U.S.C. 553(d)(1) and (3) to waive the 
30-day delay in effectiveness so that the State Waters Program 
exemptions become effective upon publication in the Federal Register.
    The exemptions approved under this final rule for the State Waters 
Program will allow Maine and Massachusetts permitted scallop LAGC and 
NGOM vessels to continue fishing operations that would not be possible 
without this rule. The NGOM area was closed to fishing by LAGC vessels 
on March 23, 2017, and without this exemption would remain closed to 
these vessels

[[Page 49299]]

until April 1, 2018. As long as this area is closed, the LAGC NGOM 
permitted vessels can no longer fish in the NGOM, including in state 
waters. LAGC IFQ vessels with homeports north of the NGOM boundary must 
now travel further from home in order to harvest scallops. Longer trips 
mean more operating expenses and less profits for individual vessels. 
Delaying the implementation of the exemptions in this rule would delay 
the positive economic benefits of resumed fishing activity to these 
vessels. For these reasons, there is good cause to implement this rule 
immediately.
    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.
    This final rule is considered an E.O. 13771 deregulatory action. As 
noted above and in the proposed rule, this rule will allow Maine 
vessels with an LAGC IFQ permit and Massachusetts vessels with LAGC IFQ 
and NGOM permits to continue fishing in their respective state's waters 
after the federal NGOM TAC has been harvested. When the NGOM TAC is 
harvested 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 per year 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, the number of vessels that participate in the exemption, and 
the given fishing year, but will have an overall positive economic 
benefit.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: October 19, 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 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, 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. 2017-23133 Filed 10-24-17; 8:45 am]
 BILLING CODE 3510-22-P