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 


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

■ For the reasons set out in the 

preamble, 50 CFR part 648 is amended 

as follows: 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

■ 1. The authority citation for part 648 

continues to read as follows: 

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

■ 2. In § 648.54, paragraphs (a), (b), (c), 

(d), and (g) are revised to read as 

follows: 

§ 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, 


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37954 Federal Register / Vol. 74, No. 145 / Thursday, July 30, 2009 / Rules and Regulations 

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 

§ 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 § 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 § 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 


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