Federal Register / Vol. 74, No. 145 / Thursday, July 30, 2009 / Rules and Regulations 37949 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by September 28, 

2009. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this action for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements (see section 

307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: July 10, 2009. 

Jane Diamond, 

Acting Regional Administrator, Region IX. 

■ Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for Part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart F—California 

■ 2. Section 52.220, is amended by 

adding paragraph (c)(354)(i)(E) to read 

as follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(354) * * * 

(i) * * * 

(E) San Joaquin Valley Unified Air 

Pollution Control District 

(1) Rule 4662, ‘‘Organic Solvent 

Degreasing Operations,’’ Adoption April 

11, 1991 and amended September 20, 

2007 

(2) Rule 4663, ‘‘Organic Cleaning 

Storage, and Disposal,’’ Adoption 

December 20, 2001 and amended 

September 20, 2007 

* * * * * 

[FR Doc. E9–18001 Filed 7–29–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 40 

[Docket OST–2003–15245] 

RIN 2105–AD89 

Procedures for Transportation 

Workplace Drug and Alcohol Testing 

Programs 

AGENCY: Office of the Secretary, DOT. 

ACTION: Final rule. 

SUMMARY: This amendment reinstates 

the requirement for direct observation 

collections for all return-to-duty and 

follow-up tests. This provision was 

stayed by the United States Court of 

Appeals for the District of Columbia 

Circuit effective November 1, 2008, but 

that stay was lifted on July 1, 2009. This 

amendment, therefore, restores language 

to the version that became a final rule 

on June 25, 2008. 

DATES: Effective Date: August 31, 2009. 

FOR FURTHER INFORMATION CONTACT: Jim 

L. Swart, Director, U.S. Department of 

Transportation, Office of Drug and 

Alcohol Policy and Compliance, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590; (202) 366–3784 (voice), (202) 

366–3897 (fax), or jim.swart@dot.gov; or 

Robert C. Ashby, Deputy Assistant 

General Counsel for Regulation and 

Enforcement, U.S. Department of 

Transportation, same address, (202) 

366–9310 (voice), (202) 366–9313 (fax), 

or bob.ashby@dot.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

The Department issued a final rule on 

June 25, 2008 (73 FR 35961) that, among 

other changes, modified 49 CFR 40.67(b) 

and added a new paragraph (i) 

concerning the use of direct observation 

collections, a very significant tool the 

Department employs to combat attempts 

by employees to cheat on their drug 

tests. The amendment to 49 CFR 

40.67(b) required direct observation 

collections for all return-to-duty and 

follow-up tests. Section 40.67(i) 

required that direct observations be 

conducted so as to allow the observer to 

check the individual for prosthetic or 

other cheating devices. 

Several petitioners asked the 

Department to delay the effective date of 

these two provisions, seek further 

comment on them, and reconsider them. 

In response, the Department issued a 

notice delaying the effective date of 49 

CFR 40.67(b)—the provision for making 

direct observation collections 

mandatory for all return-to-duty and 


erowe on DSK5CLS3C1PROD with RULES
37950 Federal Register / Vol. 74, No. 145 / Thursday, July 30, 2009 / Rules and Regulations 

follow-up tests—until November 1, 2008 

(73 FR 50222; August 26, 2008). We 

opened a comment period on 49 CFR 

40.67(b), which closed on September 25, 

2008. The Department did not delay the 

effective date of 49 CFR 40.67(i), and 

that provision went into effect, as 

scheduled, on August 25, 2008. 

The Department fully considered the 

comments filed in the public docket 

regarding the amendment to 49 CFR 

40.67(b). On October 22, 2008, at 73 FR 

62910, the Department issued a notice 

responding to the comments and stated 

‘‘the Department remains convinced 

that conducting all return-to-duty and 

follow-up tests under direct observation 

is the most prudent course from the 

viewpoint of safety.’’ (73 FR 62918) The 

Department decided not to change the 

amendment and announced that the 

revised 49 CFR 40.67(b) would go into 

effect, as scheduled, on November 1, 

2008. 

On October 24, 2008, several of the 

petitioners again requested that the 

Department further postpone the revised 

49 CFR 40.67(b). On October 30, 2008, 

the Department denied that petition. 

Several of the petitioners then filed a 

motion for stay with the United States 

Court of Appeals for the District of 

Columbia Circuit. On October 31, 2008, 

the Court issued a temporary 

administrative stay to allow more time 

for the court to consider the request for 

stay. On November 12, 2008, the court 

issued a further order to stay the 

effectiveness of section 40.67(b) (BNSF 

Railway Company v. Department of 

Transportation, U.S. Court of Appeals 

for the D.C. Circuit, September Term 

2008, No. 08–1265, November 12, 2008). 

This stay remained in effect until the 

court issued a decision on the merits of 

petitioners’ challenge to the provisions 

of 40.67(b). On November 20, 2008, at 

73 FR 70283, in response to the stay, the 

Department issued a final rule to return 

to the language of section 40.67(b) that 

existed prior to June 25 final rule 

‘‘pending further order of the Court.’’ 

Therefore, direct observation 

collections for return-to-duty and 

follow-up testing remained an employer 

option, rather than mandatory. All other 

requirements of the June 25, 2008 final 

rule that went into effect on August 25, 

2008, including the direct observation 

provision at 40.67(i) [directing observers 

to check for prosthetic and other devices 

used to carry ‘‘clean’’ urine and urine 

substitutes] were not affected and have 

continued in effect. 

On May 15, 2009, the United States 

Court of Appeals for the District of 

Columbia Circuit unanimously upheld 

DOT’s direct observation drug testing 

rules applicable to return-to-duty, 

safety-sensitive transportation industry 

employees who have already failed or 

refused to take a prior drug test. (BNSF 

Railway Company v. Department of 

Transportation, 566 F.3d 200 (DC Cir. 

2009)). Because there was an 

opportunity for the parties to seek 

rehearing of the Court’s ruling, the 

Court’s stay of the direct observation 

rule continued in effect. The Court 

issued a Mandate on July 1, 2009, which 

finalized the decision, thereby lifting 

the stay. This document, therefore, 

reinstates the language of 49 CFR 

40.67(b) that the Department originally 

issued on June 25, 2008, and that would 

have gone into effect on November 1, 

2008, but for the court’s stay. 

The Court’s Decision 

In its May 15, 2008 decision on the 

merits of section 40.67, the Court 

determined that direct observation drug 

testing for return-to-duty employees was 

not arbitrary and capricious because the 

Department had chosen a reasonable 

way of responding to the compelling 

governmental interest in transportation 

safety. The circumstances the Court took 

into account included the recent 

development of a wide array of available 

cheating devices, and the substantial 

incentive for these return-to-duty 

employees to use such devices to cheat 

on required return-to-duty and followup drug tests. The Court’s unanimous 

decision also held that the rules did not 

violate the Fourth Amendment 

constitutional prohibition on 

unreasonable searches and seizures, 

taking into account, among other 

factors, the diminished expectation of 

privacy of employees who have failed or 

refused a prior drug test. 

Administrative Procedure Act Analysis 

The Court determined that the 

Department’s issuance of the revised 

regulation was not arbitrary and 

capricious. In reaching this 

determination, the court noted that the 

‘‘Department marshaled and carefully 

considered voluminous evidence of the 

increasing availability of a variety of 

products designed to defeat drug tests.’’ 

BNSF Railway Company v. Department 

of Transportation, 566 F.3d at 203. 

Since any successful use of cheating 

devices would not show up in statistics, 

the Court agreed with the Department’s 

reasoning that it was ‘‘illogical’’ to 

require statistical evidence of cheating. 

Id. In this regard, the Court cited a 

recent Supreme Court decision, which 

said that ‘‘It is one thing to set aside 

agency action under the Administrative 

Procedure Act because of failure to 

adduce empirical data that can readily 

be obtained. It is something else to insist 

upon obtaining the unobtainable.’’ FCC 

v. Fox Television Stations, Inc., No. 07– 

582, 2009 WL 1118715, at *11 (U.S. 

Apr. 28, 2009) (citation omitted) Id. at 

203–204. 

The Court stated ‘‘the Department’s 

approach was sound. Acknowledging 

the intrusiveness of direct observation 

testing, the Department sought to limit 

it to situations posing a high risk of 

cheating * * * and then concluded— 

reasonably in our view—that returning 

employees have a heightened incentive 

to cheat, and that this incentive, 

coupled with the increased availability 

of cheating devices, creates such a high 

risk, * * *.’’ Id. at 204. In reaching its 

determination that ‘‘[s]ubstantial 

additional evidence supports the 

Department’s conclusion that returning 

employees are particularly likely to 

cheat.’’ Id., the court relied heavily 

upon the expertise of the Substance 

Abuse Professionals (SAPs) who 

commented upon 49 CFR 40.67(b). 

‘‘Given the experience possessed by 

these substance abuse professionals, 

such assessments provide substantial 

evidence supporting the Department’s 

conclusion that returning employees are 

particularly likely to cheat on drug 

tests.’’ Id. 

In addition to the SAP comments and 

other evidence it referenced, the Court 

noted with interest that return-to-duty 

employees pose a high risk to 

transportation safety. Specifically, the 

Court noted with interest that ‘‘the 

Department supplemented its 

conclusion about returning employees’ 

motivations with evidence of their 

actual behavior. To rebut the 

argument—offered by several 

commenters and echoed here by 

petitioners—that returning employees 

are lower risk because they have 

successfully completed drug treatment 

programs, the Department emphasized 

data showing that ‘the violation rate for 

return-to-duty and follow-up testing is 

two to four times higher than that of 

random testing.’ ’’ Id. at 205. The Court 

stated ‘‘[w]e can hardly fault the 

Department for inferring that the reason 

for higher failure rates is not that 

returning employees are more honest, 

but that they are more likely to use 

drugs. And given that employees who 

never use drugs are—to say the least— 

much less likely to cheat on drug tests 

than those who do, we think it quite 

reasonable for the Department to see a 

higher underlying rate of drug use as 

evidence of a higher risk of cheating.’’ 

Id. 

The Court considered and rejected 

alternatives proposed by the petitioners, 

including maintaining the status quo of 

continuing to allow employers the 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 74, No. 145 / Thursday, July 30, 2009 / Rules and Regulations 37951 

option of conducting direct observation 

collections on return-to-duty employees. 

The Court supported the Department’s 

determination that employers, 

concerned about the effects on ‘‘labor 

management agreements’’ and fearing 

‘‘upsetting employees,’’ rarely exercise 

this option. The Court referred to a 

statement in the amicus brief from the 

Association of American Railroads that 

direct observation tests ‘‘generate 

resentment and ill will towards 

management,’’ as further supporting the 

Department’s conclusion that the status 

quo was untenable. Id. 

The Court concluded ‘‘the Department 

acted neither arbitrarily nor capriciously 

in concluding that the growth of an 

industry devoted to circumventing drug 

tests, coupled with returning 

employees’ higher rate of drug use and 

heightened motivation to cheat, 

presented an elevated risk of cheating 

on return-to-duty and follow-up tests 

that justified the mandatory use of 

direct observation.’’ Id. 

Fourth Amendment Analysis 

The Court carefully considered 

whether the Department’s final rule 

struck the appropriate Fourth 

Amendment balancing of the needs of 

transportation safety with the 

reasonableness of the search. The Court 

stated that the Department’s ‘‘interest in 

transportation safety is ‘compelling’ to 

say the least.’’ Citing Skinner, 489 U.S. 

at 628, 109 S.Ct. 1402. BNSF at 206. 

Further, the Court recognized that 

‘‘[g]iven the proliferation of cheating 

devices, we have little difficulty 

concluding that direct observation 

furthers the government’s interest in 

effective drug testing.’’ Id. Since 

employees returning-to-duty can 

anticipate that they will be subject to 

more frequent testing, ‘‘[a]rmed with 

such foreknowledge, returning 

employees can easily obtain and conceal 

cheating devices, keeping them handy 

even for unannounced follow-up tests.’’ 

Id. The Court concluded that the 

Department ‘‘has a strong interest in 

conducting direct observation testing to 

ensure transportation safety.’’ Id. 

The Court then turned to the second 

prong of the Fourth Amendment 

analysis—the reasonableness of the 

actual search. ‘‘Individuals ordinarily 

have extremely strong interests in 

freedom from searches as intrusive as 

direct observation urine testing. In this 

case, however, those interests are 

diminished because the airline, railroad, 

and other transportation employees 

subject to direct observation perform 

safety-sensitive duties in an industry 

that is ‘regulated pervasively to ensure 

safety.’ ’’ Id. However, the Court noted 

that the Department’s direct observation 

provisions were not structured to apply 

to all safety-sensitive employees. Only 

violators and suspected cheaters are 

affected. ‘‘By choosing to violate the 

Department’s perfectly legitimate—and 

hardly onerous—drug regulations, 

returning employees have placed 

themselves in a very different position 

from their coworkers.’’ Id. at 207. Thus, 

the court stated, ‘‘we have little trouble 

concluding that employees who have 

intentionally violated a valid drug 

regulation * * * [would] have less of a 

legitimate interest in resisting a search 

intended to prevent future violations of 

that regulation than do employees who 

never violated the rule.’’ Id. The Court 

explained, ‘‘we think that the 

employees’ prior misconduct is 

particularly salient, especially 

compared to their choice to work in a 

pervasively regulated industry. It’s one 

thing to ask individuals seeking to avoid 

intrusive testing to forgo a certain career 

entirely; it’s a rather lesser thing to ask 

them to comply with regulations 

forbidding drug use.’’ Id. at 208. The 

Court acknowledged that ‘‘direct 

observation is extremely invasive, but 

that intrusion is mitigated by the fact 

that employees can avoid it altogether 

by simply complying with the drug 

regulations.’’ Id. 

The Court also took into account that 

the provision making direct observation 

optional in return-to-duty and follow-up 

situations came into effect well before 

present threats to the integrity of urine 

testing became known. ‘‘[T]hat was 

before the Whizzinator and its like. 

Given the proliferation of such cheating 

devices, here we have a very different 

record, one that fully supports the 

Department’s finding that standard 

monitoring procedures are inadequate. 

We thus conclude that here * * * direct 

observation testing will ‘significantly 

improve testing accuracy.’ ’’ Id. 

In finding that circumstances 

necessitated the Department’s increased 

requirements for the scope and nature of 

direct observation collections, the Court 

stated, ‘‘we recognize the intrusiveness 

of the partial disrobing requirement, but 

find it only somewhat more invasive 

than direct observation, which already 

requires employees to expose their 

genitals to some degree. Because of this, 

and because the Department has 

permissibly found the requirement 

necessary to detect certain widelyavailable prosthetic devices, we 

conclude that it represents a reasonable 

procedure for situations posing such a 

heightened risk of cheating as to justify 

direct observation in the first place.’’ Id. 

‘‘[T]he Department has reasonably 

concluded that the proliferation of 

cheating devices makes direct 

observation necessary to render these 

drug tests—needed to protect the 

traveling public from lethal hazards— 

effective. Weighing these factors, we 

strike the balance in favor of permitting 

direct observation testing in these 

circumstances.’’ Id. The court 

concluded, ‘‘[g]iven the combination of 

the vital importance of transportation 

safety, the employees’ participation in a 

pervasively regulated industry, their 

prior violations of the drug regulations, 

and the ease of obtaining cheating 

devices capable of defeating standard 

testing procedures, we find the 

challenged regulations facially valid 

under the Fourth Amendment.’’ Id. 

Collective Bargaining Agreements 

We are aware that some employers 

and labor organizations may have 

entered into collective bargaining 

agreements (CBAs) that prohibit or limit 

the use of direct observation collections 

in return-to-duty and follow-up testing 

situations. Employers and employees, of 

course, do not have the authority to 

agree to avoid compliance with the 

requirements of Federal law. When this 

final rule goes into effect, conducting all 

follow-up and return-to-duty testing 

using direct observation collections will 

be a requirement of Federal law. 

Employers must use direct observation 

collections for such tests that take place 

after the effective date of this rule, and 

any contrary provisions of CBAs in the 

present or in the future will not be 

effective. 

Conclusion 

The Department wants to ensure that 

employers, employees, collection sites, 

collectors, Third-Party Administrators 

and other service agents know about 

and are fully prepared for mandatory 

direct observation for follow-up and 

return-to-duty testing. We view this to 

be important in light of the fact that 

there has been a good deal of conflicting 

information in the transportation and 

drug testing industries about the 

requirements and because of the 

complexities of the various petitions, 

court actions, and rule changes on the 

matter. 

Regulatory Analyses and Notices 

This document simply reinstates, 

without change, following the 

dissolution of a court stay, a provision 

issued as part of a final rule on June 25, 

2009. The regulatory analyses and 

notices set forth in that document (73 

FR 35968–69) apply to today’s rule. 


erowe on DSK5CLS3C1PROD with RULES
37952 Federal Register / Vol. 74, No. 145 / Thursday, July 30, 2009 / Rules and Regulations 

List of Subjects in 49 CFR Part 40 

Administrative practice and 

procedures, Alcohol abuse, Alcohol 

testing, Drug abuse, Drug testing, 

Laboratories, Reporting and 

recordkeeping requirements, Safety, 

Transportation. 

Issued this 24th day of July 2009, at 

Washington, DC. 

Jim L. Swart, 

Director, Office of Drug and Alcohol Policy 

Compliance. 

49 CFR Subtitle A—Authority and 

Issuance 

■ For reasons discussed in the 

preamble, the Department of 

Transportation is amending part 40 of 

Title 49 Code of Federal Regulations as 

follows: 

PART 40—PROCEDURES FOR 

TRANSPORTATION WORKPLACE 

DRUG AND ALCOHOL TESTING 

PROGRAMS 

■ 1. The authority citation for 49 CFR 

Part 40 continues to read as follows: 

Authority: 40 U.S.C. 102, 301, 322, 5331, 

20140, 31306, and 54101 et seq. 

■ 2. Section 40.67 is amended by 

revising paragraph (b) to read as follows: 

§ 40.67 When and how is a directly 

observed collection conducted? 

* * * * * 

(b) As an employer, you must direct 

a collection under direct observation of 

an employee if the drug test is a returnto-duty test or a follow-up test. 

[FR Doc. E9–18156 Filed 7–29–09; 8:45 am] 

BILLING CODE 4910–9X–P 

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. 

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 

§ 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 


erowe on DSK5CLS3C1PROD with RULES