Federal Register / Vol. 82, No. 205 / Wednesday, October 25, 2017 / Rules and Regulations 49297 

5Effective June 30, 2016, for the purpose of RFA 

analysis for rail carriers subject to our jurisdiction, 

the Board defines a ‘‘small business’’ as a rail 

carrier classified as a Class III rail carrier under 49 

CFR part 1201. See Small Entity Size Standards 

Under the Regulatory Flexibility Act, EP 719 (STB 

served June 30, 2016) (with Board Member 

Begeman dissenting). Class III carriers have annual 

operating revenues of $20 million or less in 1991 

dollars, or $35,809,698 or less when adjusted for 

inflation using 2016 data. Class II carriers have 

annual operating revenues of less than $250 million 

in 1991 dollars or $ less than $447,621,226 when 

adjusted for inflation using 2016 data. The Board 

calculates the revenue deflator factor annually and 

publishes the railroad revenue thresholds on its 

Web site. 49 CFR part 1201. 

NPRM was served on the U.S. Small 

Business Administration (SBA). 

The final action changes one of the 

criteria for a railroad’s inclusion in the 

data sample that the Board uses to 

calculate the annual cost of capital. By 

definition, that group of railroads is 

limited to Class I carriers, which are not 

small businesses under the Board’s 

definition for RFA purposes.5 Thus, the 

action does not place any additional 

burden on small entities. Therefore, the 

Board certifies under 5 U.S.C. 605(b) 

that the final action will not have a 

significant economic impact on a 

substantial number of small entities 

within the meaning of the RFA. A copy 

of this decision will be served upon the 

Chief Counsel for Advocacy, Office of 

Advocacy, U.S. Small Business 

Administration, Washington, DC 20416. 

It is ordered: 

1. The final action described above is 

adopted and will be applicable on 

November 24, 2017. 

2. Notice of the action adopted here 

will be published in the Federal 

Register. 

3. A copy of this decision will be 

served upon the Chief Counsel for 

Advocacy, Office of Advocacy, U.S. 

Small Business Administration. 

4. This decision is effective on the 

date of service. 

Decided: October 17, 2017. 

By the Board, Board Members Begeman 

and Miller. 

Kenyatta Clay, 

Clearance Clerk. 

[FR Doc. 2017–22894 Filed 10–24–17; 8:45 am] 

BILLING CODE 4915–01–P 

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. 

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 § 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 stateonly vessels and 12 vessels with both 

Federal and state permits to fish for 


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49298 Federal Register / Vol. 82, No. 205 / Wednesday, October 25, 2017 / Rules and Regulations 

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 NGOMpermitted 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 IFQpermitted 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 MagnusonStevens 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 


nlaroche on DSK9F9SC42PROD with RULES
Federal Register / Vol. 82, No. 205 / Wednesday, October 25, 2017 / Rules and Regulations 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 

■ 1. The authority citation for part 648 

continues to read as follows: 

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

■ 2. In § 648.54, paragraph (a)(4) is 

revised to read as follows: 

§ 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 


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