[Federal Register Volume 74, Number 70 (Tuesday, April 14, 2009)]
[Proposed Rules]
[Pages 17135-17137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8526]


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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.

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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:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
    <bullet> Fax: (978) 281-9135, Attn: Peter Christopher.
    <bullet> 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

[[Page 17136]]

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 Sec.  648.54, paragraphs (a), (b), (c), (d), and (g) are 
revised to read as follows:


Sec.  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 Sec.  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 Sec.  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)

[[Page 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 Sec.  
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