Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Proposed Rules 17135 

published on July 1, 1994 (59 FR 

34271), we will rely on the best and 

most comprehensive technical 

information available; gather and 

impartially evaluate information that 

disputes official positions; document 

evaluation of information; use, retain, 

and reference primary and original 

sources of information; and conduct 

management-level review of documents 

to verify and assure the quality of the 

science used to make the critical habitat 

designations. We will review all 

comments and information resulting 

from this ANPR prior to making any 

proposed designations and will include 

such documents in our public record. 

The public may review information 

submitted by contacting NMFS (see 

ADDRESSES and FOR FURTHER

INFORMATION CONTACT) or via the internet 

at http://www.fakr.noaa.gov/. 

Dated: April 7, 2009. 

James W. Balsiger, 

Acting Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

[FR Doc. E9–8519 Filed 4–13–09; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 090224231–9594–01] 

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: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes regulations to 

allow 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 would provide an exemption 

from scallop days-at-sea (DAS) for 

limited access DAS scallop vessels, 

provided the vessel owner declares that 

the vessel will fish 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: Comments must be received by 

5 p.m., local time, on May 14, 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. 

You may submit comments, identified 

by 0648–AX54, by any one of the 

following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. 

• Fax: (978) 281–9135, Attn: Peter 

Christopher. 

• Mail: Patricia A. Kurkul, Regional 

Administrator, NMFS, Northeast 

Regional Office, 55 Great Republic 

Drive, Gloucester, MA 01930. Mark the 

outside of the envelope, ‘‘Comments on 

Maine State Waters Exemption.’’ 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. NMFS will 

accept anonymous comments. 

Attachments to electronic comments 

will be accepted in Microsoft Word, 

Excel, WordPerfect, or Adobe PDF file 

formats only. 

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 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 50 

CFR 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 

does 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 has preliminarily 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–in (14–cm) 

twine tops on scallop dredges, while the 

Federal regulations require a 10–in 

(25.4–cm) minimum twine-top mesh 

size. The state waters exemption would 

therefore allow an exemption from the 

10–in (25.4–cm) minimum twine-top 

mesh size. In addition, the state waters 

exemption would provide an exemption 

from scallop DAS for limited access 

DAS scallop vessels, but would 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 would be 

required to declare their intent to fish 

exclusively in ME state waters, subject 

to more restrictive state measures if 

applicable. Vessels with Federal 

Incidental Catch scallop permits would 

still be confined to the 40–lb (18–kg) 

limit under Federal regulations. The 

target total allowable catch 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 

17136 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Proposed Rules 

more than 40 lb 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 

would have 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 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–in 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 in 

(14–cm) twine top mesh size in the ME 

fishery is confined to approximately 2 

months. The possession limit of 200 lb 

(90.7 kg) in ME’s waters also limits 

overall fishing time. In addition, vessels 

with Federal scallop permits may 

decide not to replace the 10–in (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 offshore primarily 

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–in (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 would not be affected by the 

proposed 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 Northeast 

Regional Office to determine that new 

possession limit restrictions in NH state 

waters alleviated the need for the 

exemption program in NH waters. 

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. 

Final Regulatory Flexibility Analyses 

(FRFA) were completed for both Amendment 

11 and Framework 19 (implemented in June 

2008) that analyze the economic impacts of 

current FMP measures on small entities, 

including Federally permitted scallop vessels 

that would fish in both state and Federal 

waters. The proposed action would not 

generate any additional fishing effort and 

would not have any additional impacts on 

Federally permitted vessels than were 

analyzed in prior Amendment 11 and 

Framework 19. The exemption would only 

facilitate fishing in ME state waters, where 

vessels with Federal scallop permits would 

fish in ME waters without the exemption. 

Therefore, the proposed action would not 

create any additional economic impacts that 

were not considered in the prior FRFAs. 

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: April 8, 2009. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

For the reasons set out in the 

preamble, 50 CFR part 648 is proposed 

to be 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, 

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) 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Proposed Rules 17137 

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. E9–8526 Filed 4–13–09; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 071102641–9595–03] 

RIN 0648–AR06 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Revision of Single 

Geographic Location Requirement in 

the Bering Sea Subarea 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes regulations to 

increase the number of times per year 

that a stationary floating processor (SFP) 

that is qualified under the American 

Fisheries Act (AFA) may move within 

State of Alaska waters in the Bering Sea 

(BS) subarea to process pollock 

harvested in the BS subarea directed 

pollock fishery. This action also would 

require AFA SFPs to process all Gulf of 

Alaska (GOA) pollock and GOA Pacific 

cod where they processed these species 

in 2002. This action is necessary to 

increase operational flexibility for AFA 

SFPs that process pollock caught in the 

BS subarea directed fishery while 

continuing to limit the competitive 

advantage of AFA SFPs in the GOA 

pollock and GOA Pacific cod fisheries. 

This action is intended to promote the 

goals and objectives of the Magnuson– 

Stevens Fishery Conservation and 

Management Act, the Fishery 

Management Plans for Groundfish of the 

GOA and for Groundfish of the Bering 

Sea and Aleutian Islands Management 

Area, and other applicable laws. 

DATES: Comments on the proposed rule 

must be received no later than the close 

of business on May 29, 2009. 

ADDRESSES: Send comments to Sue 

Salveson, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region, NMFS, Attn: 

Ellen Sebastian. You may submit 

comments, identified by ‘‘RIN 0648– 

AR06’’ by any one of the following 

methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. 

• Fax: 907–586–7557. 

• Mail: P. O. Box 21668, Juneau, AK 

99802. 

• Hand delivery to the Federal 

Building: 709 West 9th Street, Room 

420A, Juneau, Alaska. 

All comments received are a part of 

the public record and will generally be 

posted to http://www.regulations.gov 

without change. All Personal Identifying 

Information (e.g., name, address) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

portable document file (pdf) formats 

only. 

Copies of the Environmental 

Assessment/Regulatory Impact Review 

(EA/RIR) prepared for this action are 

available from the NMFS Alaska Region 

website at http:// 

www.alaskafisheries.noaa.gov or from 

the mailing and street addresses listed 

above. 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection–of–information 

requirements contained in this proposed 

rule may be submitted to NMFS at the 

above address and by e–mail to 

DavidlRostker@omb.eop.gov, or fax to 

202–395–7285. 

FOR FURTHER INFORMATION CONTACT: 

Becky Carls, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fisheries in the 

exclusive economic zone of the Bering 

Sea and Aleutian Islands Management 

Area (BSAI) and the GOA under the 

Fishery Management Plans (FMPs) for 

groundfish in the respective areas. The 

North Pacific Fishery Management 

Council (Council) prepared, and NMFS 

approved, the FMPs under the authority 

of the Magnuson–Stevens Fishery 

Conservation and Management Act 

(Magnuson–Stevens Act), 16 U.S.C. 

1801 et seq. Regulations governing U.S. 

fisheries and implementing the FMPs 

appear at 50 CFR parts 600 and 679. 

Background and Need for Action 

The current single geographic location 

provisions apply to SFPs, which can be 

AFA or non–AFA qualified. An SFP, as 

defined at § 679.2, is a vessel of the 

United States operating as a processor in 

State of Alaska (State) waters that 

remains anchored or otherwise remains 

stationary in a single geographic 

location while receiving or processing 

groundfish harvested in the GOA or 

BSAI. There are two AFA SFPs that are 

the two largest SFPs operating in 

Alaska, and six AFA onshore 

processors. It is unlikely that there will 

be more AFA SFPs because the 

regulatory requirements to qualify as an 

AFA SFP are unlikely to be met by other 

entities. The two AFA SFPs are semi– 

permanently moored in protected 

anchorages in the Aleutian Islands less 

than 45 nautical miles (nm) (83 km) 

apart. The F/V Arctic Enterprise is 

located in Akutan Bay, and the F/V 

Northern Victor is located in Beaver 

Inlet. 

History of Single Geographic Location 

Provisions 

In 1992, the final rule implementing 

Amendment 18 to the BSAI FMP and 

Amendment 23 to the GOA FMP was 

published (57 FR 61326, December 24, 

1992). Under Amendments 18/23, the 

Council adopted resource allocations of 

BSAI and GOA pollock and GOA Pacific 

cod between inshore and offshore 

components in response to concerns of 

one component preempting another in 

harvesting the total allowable catch in 

those fisheries. Amendments 18/23 also 

established the single geographic 

location provisions for the inshore 

pollock processing sector to discourage 

offshore catcher/processors and 

motherships from entering the inshore 

sector. Any operational advantage over 

the shore–based processors due to the 

offshore processors’ mobility would be 

lost by being limited to one location. 

The prohibition on processing fish in 

more than a single geographic location 

applied on a fishing-year basis and only 

to vessels processing catch from target 

pollock and GOA Pacific cod fisheries. 

A processing vessel could leave the 

specified inshore fixed geographic 

location within State waters to process 

other species of groundfish. If, later, the 

processor was needed to process catch 

from target BSAI or GOA pollock or 

GOA Pacific cod fisheries, the 

processing vessel would first have to