82 FR 49297 - Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; State Waters Exemption
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration Federal Register Volume 82, Issue 205 (October 25, 2017)
National Oceanic and Atmospheric Administration
Federal Register Volume 82, Issue 205 (October 25, 2017)
| Page Range | 49297-49299 | |
| FR Document | 2017-23133 |
[Federal Register Volume 82, Number 205 (Wednesday, October 25, 2017)] [Rules and Regulations] [Pages 49297-49299] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-23133] ======================================================================= ----------------------------------------------------------------------- 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 Sec. 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 state-only vessels and 12 vessels with both Federal and state permits to fish for [[Page 49298]] 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 NGOM-permitted 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 IFQ-permitted 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 Magnuson-Stevens 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 [[Page 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 0 1. The authority citation for part 648 continues to read as follows: Authority: 16 U.S.C. 1801 et seq. 0 2. In Sec. 648.54, paragraph (a)(4) is revised to read as follows: Sec. 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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NPRM was served on the U.S. Small DEPARTMENT OF COMMERCE Regional Fisheries Office, 55 Great
Business Administration (SBA). Republic Drive, Gloucester, MA 01930.
National Oceanic and Atmospheric Copies of the Permit Holder Letter are
The final action changes one of the
Administration available from John K. Bullard, Regional
criteria for a railroad’s inclusion in the
Administrator, NMFS, Greater Atlantic
data sample that the Board uses to
50 CFR Part 648 Regional Fisheries Office, 55 Great
calculate the annual cost of capital. By
Republic Drive, Gloucester, MA 01930–
definition, that group of railroads is [Docket No. 170301213–7869–02] 2298, or available on the Internet at
limited to Class I carriers, which are not http://www.greateratlantic.fisheries.
small businesses under the Board’s RIN 0648–BG70
noaa.gov/sustainable/species/scallop/.
definition for RFA purposes.5 Thus, the
Fisheries of the Northeastern United FOR FURTHER INFORMATION CONTACT:
action does not place any additional
States; Atlantic Sea Scallop Fishery; Shannah Jaburek, Fisheries Management
burden on small entities. Therefore, the Specialist, 978–282–8456.
State Waters Exemption
Board certifies under 5 U.S.C. 605(b)
SUPPLEMENTARY INFORMATION:
that the final action will not have a AGENCY: National Marine Fisheries
significant economic impact on a Service (NMFS), National Oceanic and Background
substantial number of small entities Atmospheric Administration (NOAA), The Scallop State Waters Exemption
within the meaning of the RFA. A copy Commerce. Program, described at § 648.54, specifies
of this decision will be served upon the ACTION: Final rule. that a state with a scallop fishery may
Chief Counsel for Advocacy, Office of be eligible for state waters exemptions if
Advocacy, U.S. Small Business SUMMARY: NMFS approves and it has a scallop conservation program
Administration, Washington, DC 20416. implements an exemption for vessels that does not jeopardize the biomass
with Federal Limited Access General and fishing mortality and effort limit
It is ordered: Category Individual Fishing Quota objectives of the Scallop FMP. Under
1. The final action described above is permits from the State of Maine and the the Program, if NMFS determines that a
adopted and will be applicable on Commonwealth of Massachusetts. This state is eligible, federally permitted
November 24, 2017. exemption enables the vessels to scallop vessels fishing in state waters
2. Notice of the action adopted here continue fishing in their respective state may be exempted from specific Federal
will be published in the Federal waters once NMFS has announced that scallop regulations. One of these
Register. the Federal Northern Gulf of Maine total exemptions enables some scallop
allowable catch has been fully harvested vessels to continue to fish in state
3. A copy of this decision will be in a given year. Additionally,
served upon the Chief Counsel for waters within the Northern Gulf of
Massachusetts has requested that Maine (NGOM) management area once
Advocacy, Office of Advocacy, U.S. Federal Limited Access General
Small Business Administration. the Federal NGOM total allowable catch
Category Northern Gulf of Maine (TAC) is reached. Any state interested in
4. This decision is effective on the permits also be included in its applying for this exemption must
date of service. exemption. Both states have requested identify the scallop-permitted vessels
this exemption as part of the Scallop that would be subject to the exemption
Decided: October 17, 2017.
State Water Exemption Program. This (i.e., limited access, limited access
By the Board, Board Members Begeman program specifies that a state may be
and Miller. general category (LAGC) individual
eligible for a state waters exemption to fishing quota (IFQ), LAGC incidental, or
Kenyatta Clay, specific Federal regulations if it has a LAGC NGOM). No vessel is permitted to
Clearance Clerk. scallop fishery and a scallop fish for scallops in the Federal portion
[FR Doc. 2017–22894 Filed 10–24–17; 8:45 am] conservation program that does not of the NGOM once the TAC is
BILLING CODE 4915–01–P
jeopardize the biomass and fishing harvested. We provided a broader
mortality/effort limit objectives of the description of the Scallop State Waters
Atlantic Sea Scallop Fishery Exemption Program in the preamble of
Management Plan. Based on the the proposed rule (82 FR 29470; June
information that Maine and 29, 2017) for this action. We are not
Massachusetts have submitted, NMFS repeating that information here.
has determined that both states qualify We received a request from Maine to
for this exemption and that this expand its current exemptions to allow
exemption will not have an impact on the four IFQ-permitted vessels with
5 Effective June 30, 2016, for the purpose of RFA the effectiveness of Federal management Maine state-waters permits to fish in the
analysis for rail carriers subject to our jurisdiction, measures for the scallop fishery overall Maine state-waters portion of the NGOM
the Board defines a ‘‘small business’’ as a rail or within the Northern Gulf of Maine management area once we project the
carrier classified as a Class III rail carrier under 49 management area. Federal TAC to be fully harvested.
CFR part 1201. See Small Entity Size Standards
DATES: Effective October 25, 2017. Massachusetts also sent a request to
Under the Regulatory Flexibility Act, EP 719 (STB
served June 30, 2016) (with Board Member ADDRESSES: Documents supporting this exempt LAGC IFQ and NGOM-federally
Begeman dissenting). Class III carriers have annual action, including the State of Maine and permitted vessels that also hold a state
operating revenues of $20 million or less in 1991 Commonwealth of Massachusetts permit. Only the northern portion of
dollars, or $35,809,698 or less when adjusted for Massachusetts state waters,
nlaroche on DSK9F9SC42PROD with RULES
requests for the exemption, the
inflation using 2016 data. Class II carriers have Categorical Exclusion, and Framework approximately Boston and north, fall
annual operating revenues of less than $250 million
Adjustment 28 to the Atlantic Sea within the NGOM management area.
in 1991 dollars or $ less than $447,621,226 when
adjusted for inflation using 2016 data. The Board Scallop Fishery Management Plan The fishery in this area has traditionally
calculates the revenue deflator factor annually and (FMP) are available upon request from been split between a handful of state-
publishes the railroad revenue thresholds on its John K. Bullard, Regional only vessels and 12 vessels with both
Web site. 49 CFR part 1201. Administrator, NMFS, Greater Atlantic Federal and state permits to fish for
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![Federal Register / Vol. 82, No. 205 / Wednesday, October 25, 2017 / Rules and Regulations 49299
until April 1, 2018. As long as this area closes, the LAGC NGOM permitted Authority: 16 U.S.C. 1801 et seq.
is closed, the LAGC NGOM permitted vessels can no longer fish and the LAGC
vessels can no longer fish in the NGOM, IFQ vessels must travel further from ■ 2. In § 648.54, paragraph (a)(4) is
including in state waters. LAGC IFQ home in order to harvest scallops; revised to read as follows:
vessels with homeports north of the therefore, the vessel’s individual income § 648.54 State waters exemption.
NGOM boundary must now travel is affected. Massachusetts estimates that
further from home in order to harvest with this exemption, vessels could (a) * * *
scallops. Longer trips mean more harvest up to an additional 100,000 lb (4) The Regional Administrator has
operating expenses and less profits for worth an estimated $1.23 million determined that the State of Maine and
individual vessels. Delaying the dollars per year at a 2015 average price Commonwealth of Massachusetts both
implementation of the exemptions in of $12.26/lb. Maine estimates that with have a scallop fishery conservation
this rule would delay the positive this exemption, the four vessels would
program for its scallop fishery that does
economic benefits of resumed fishing save on fuel, food, and maintenance
not jeopardize the biomass and fishing
activity to these vessels. For these costs associated with steaming to fishing
reasons, there is good cause to grounds outside of the NGOM mortality/effort limit objectives of the
implement this rule immediately. management area by fishing closer to Scallop FMP. A vessel fishing in State
The Chief Counsel for Regulation of individual homeports. These cost of Maine waters may fish under the
the Department of Commerce certified savings would vary by individual State of Maine state waters exemption,
to the Chief Counsel for Advocacy of the vessel, the number of vessels that subject to the exemptions specified in
Small Business Administration during participate in the exemption, and the paragraphs (b) and (c) of this section,
the proposed rule stage that this action given fishing year, but will have an provided the vessel is in compliance
would not have a significant economic overall positive economic benefit. with paragraphs (e) through (g) of this
impact on a substantial number of small section. In addition, a vessel issued a
entities. The factual basis for the List of Subjects in 50 CFR Part 648
Federal Northern Gulf of Maine or
certification was published in the Fisheries, Fishing, Recordkeeping and Limited Access General Category
proposed rule and is not repeated here. reporting requirements. Individual Fishing Quota permit fishing
No comments were received regarding Dated: October 19, 2017. in State of Maine or Commonwealth of
this certification. As a result, a Samuel D. Rauch III, Massachusetts waters may fish under
regulatory flexibility analysis was not Deputy Assistant Administrator for their respective state waters exemption
required and none was prepared. Regulatory Programs, National Marine specified in paragraph (d) of this
This final rule is considered an E.O. Fisheries Service. section, provided the vessel is in
13771 deregulatory action. As noted
For the reasons set out in the compliance with paragraphs (e) through
above and in the proposed rule, this rule
preamble, 50 CFR part 648 is amended (g) of this section.
will allow Maine vessels with an LAGC
as follows: * * * * *
IFQ permit and Massachusetts vessels
with LAGC IFQ and NGOM permits to [FR Doc. 2017–23133 Filed 10–24–17; 8:45 am]
PART 648—FISHERIES OF THE
continue fishing in their respective NORTHEASTERN UNITED STATES BILLING CODE 3510–22–P
state’s waters after the federal NGOM
TAC has been harvested. When the ■ 1. The authority citation for part 648
NGOM TAC is harvested and the area continues to read as follows:
nlaroche on DSK9F9SC42PROD with RULES
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Document Created: 2017-10-25 01:17:45
Document Modified: 2017-10-25 01:17:45
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | Effective October 25, 2017. | |
| Contact | Shannah Jaburek, Fisheries Management Specialist, 978-282-8456. | |
| FR Citation | 82 FR 49297 | |
| RIN Number | 0648-BG70 | |
| CFR Associated | Fisheries; Fishing and Recordkeeping and Reporting Requirements |
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