82_FR_41733 82 FR 41564 - Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast Groundfish Fishery; Fishing Year 2017; Emergency Removal of Southern Windowpane Accountability Measures

82 FR 41564 - Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast Groundfish Fishery; Fishing Year 2017; Emergency Removal of Southern Windowpane Accountability Measures

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 82, Issue 169 (September 1, 2017)

Page Range41564-41567
FR Document2017-18495

This emergency rule removes the 2017 southern windowpane flounder accountability measures for non-groundfish trawl vessels that were triggered as a result of a 2015 quota overage. The rule is necessary because new information indicates 2016 catch did not exceed the quota. This rule is intended to mitigate negative economic impacts to non-groundfish vessels, while maintaining conservation benefits for the southern windowpane flounder stock.

Federal Register, Volume 82 Issue 169 (Friday, September 1, 2017) 
[Federal Register Volume 82, Number 169 (Friday, September 1, 2017)]
[Rules and Regulations]
[Pages 41564-41567]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-18495]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 170808738-7777-01]
RIN 0648-BH11


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast 
Groundfish Fishery; Fishing Year 2017; Emergency Removal of Southern 
Windowpane Accountability Measures

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Temporary rule; emergency action; request for comments.

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SUMMARY: This emergency rule removes the 2017 southern windowpane 
flounder accountability measures for non-groundfish trawl vessels that 
were triggered as a result of a 2015 quota overage. The rule is 
necessary because new information indicates 2016 catch did not exceed 
the quota. This rule is intended to mitigate negative economic impacts 
to non-groundfish vessels, while maintaining conservation benefits for 
the southern windowpane flounder stock.

DATES: Effective September 1, 2017, through February 28. 2018. Comments 
must be submitted by October 2, 2017.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2017-0105 
by any of the following methods:
     Electronic submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0105, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Submit written comments to John K. Bullard, Regional 
Administrator, National Marine Fisheries Service, 55 Great Republic 
Drive, Gloucester, MA 01930. Mark the outside of the envelope, 
``Comments on the Windowpane Emergency Action.''
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).

FOR FURTHER INFORMATION CONTACT: Aja Szumylo, Fishery Policy Analyst, 
phone: 978-281-9195.

SUPPLEMENTARY INFORMATION: On August 1, 2017, we implemented 
accountability measures (AMs) in response to an overage of the 2015 
southern windowpane flounder annual catch limit (ACL) (82 FR 35660). 
Due to data availability, AMs for windowpane flounder are typically 
implemented at the start of the second fishing year after an overage. 
The AMs require trawl vessels fishing in certain areas in southern New 
England to use selective trawl gear that limit flatfish catch. The 
southern windowpane AM areas apply to all groundfish trawl vessels. The 
AM areas also apply to non-groundfish trawl vessels fishing with a 
codend mesh size of 5 inches (12.7 cm) or greater, which includes 
vessels that target summer

[[Page 41565]]

flounder, scup, black sea bass, and skates. The AMs have been triggered 
for groundfish vessels in previous years, but this is the first year 
the AMs have been triggered for both groundfish and non-groundfish 
trawl vessels. These AMs are estimated to result in $2 million in lost 
revenue in catch of yellowtail flounder, winter flounder, summer 
flounder, and scup. The AMs impose a substantial financial hardship on 
both groundfish and non-groundfish vessels, particularly because the AM 
areas eliminate access to target species that vessels are unlikely to 
recoup even if they move to fish in other areas.
    In 2015, the New England Fishery Management Council developed 
Framework Adjustment 52 to the Northeast Multispecies Fishery 
Management Plan (FMP) to reduce the economic impacts of the windowpane 
flounder AMs for the groundfish fishery. At the time, the AMs were 
triggered only for the groundfish fishery. The Council intentionally 
limited the scope of Framework 52 to the groundfish fishery to ensure 
the action could be completed, and final measures implemented, in time 
for the start of the 2015 fishing year. Framework 52 included a 
provision that gave the Regional Administrator authority to remove the 
windowpane flounder AM in-season if catch is below the ACL in the year 
immediately following the overage. Thus, although we implemented an AM 
in 2017 due to an overage in 2015, we can remove the AM in September if 
catch did not exceed the ACL in 2016, the intervening year.
    Southern windowpane flounder catch data for 2016 recently became 
available showing total 2016 catch was 82 percent of the total ACL, and 
catch by non-groundfish vessels was well below the sub-ACL for this 
fishery component. Following our announcement of the 2015 windowpane 
flounder overage and resulting 2017 AMs, the New England and Mid-
Atlantic Councils both requested that we consider all remediation 
methods available to remove or modify the southern windowpane flounder 
AMs for 2017. The Councils highlighted the economic impacts of the AMs, 
as well as the status of the stock, which is rebuilt with overfishing 
not occurring. Additionally, possession of southern windowpane flounder 
has been prohibited for all fisheries since 2010. Given all of these 
factors, the Councils argued that the AMs are unnecessary and punitive. 
As a result, consistent with existing regulatory authority, we removed 
the AMs for the groundfish fishery effective September 1, 2017 (82 FR 
35676; August 1, 2017). However, the regulatory authority to remove the 
southern windowpane flounder AM areas during the fishing year is 
limited to the groundfish fishery only, and the Regional Administrator 
currently is not authorized to remove the AM areas for non-groundfish 
trawl vessels. Without this emergency action, the AMs for non-
groundfish vessels would remain in place for the entire 2017 fishing 
year, through April 30, 2018.
    The New England Council, with support from the Mid-Atlantic 
Council, intends to address the AMs for non-groundfish trawl vessels in 
Framework 57 to the Northeast Multispecies FMP, which is scheduled to 
be implemented for the 2018 fishing year. However, neither Council is 
able to take action in time to address this issue for the 2017 fishing 
year in order to minimize the adverse economic impact of the 2017 AMs 
on the non-groundfish fishery.

Justification for Emergency Action

    Section 305(c) of the Magnuson-Stevens Act (16 U.S.C. 1855(c)) 
authorizes the Secretary of Commerce to implement emergency regulations 
to address fishery emergencies. NMFS policy guidelines for the use of 
emergency rules define criteria for determining whether an emergency 
exists under section 305(c) of the Magnuson-Stevens Act (62 FR 44421; 
August 21, 1997). These criteria limit emergency management actions to 
``recent, unforeseen events or recently discovered circumstances'' that 
present serious management problems in the fishery when emergency 
regulations would bring immediate benefits that outweigh the value of 
advance notice and public comment.
    Maintaining the AMs on the non-groundfish fishery for the full 
fishing year would have immediate serious economic impacts without 
further contributing to the conservation goals of the AMs. 
Additionally, maintaining the AMs on the non-groundfish fishery 
presents a fairness and equity issue that was not previously apparent. 
The 2017 fishing year is the first time that we have been required to 
implement these AMs for both the groundfish and non-groundfish 
fisheries. Data supporting this removal only recently became available, 
and it is the first time that these AMs can be removed from the 
groundfish fishery but not the non-groundfish fishery. Before this, 
neither we, nor the Council, could have reasonably considered or 
foreseen the specific circumstance presented by the current situation, 
that is, the possibility of the AMs being removed for groundfish 
vessels but remaining in place for the non-groundfish trawl vessels, 
despite catch being below the ACL.
    AMs are intended to correct operational issues that cause overages 
and mitigate biological consequences of overages. The fishery's 2016 
catch results demonstrate that the fishery appears to have corrected 
the operational issues that caused the 2015 overage. The windowpane 
flounder AMs act as a disincentive to exceed an ACL and, if an overage 
does occur, the possibility of removing that AM during a fishing year 
is intended to provide an additional incentive to change fishing 
behavior in the year following an overage. Consistent with this 
incentive, the fishery's 2016 catch was below the ACL following the 
2015 overage despite there being no AM areas in effect in 2016. In 
addition to the AM measures operating as expected, there were changes 
in the groundfish and non-groundfish fisheries that contributed to 
limiting 2016 catch below both the non-groundfish fishery sub-ACL and 
the total ACL. Catch limits for several Southern New England groundfish 
stocks and summer flounder were reduced in 2016 relative to 2015, which 
limited overall fishing effort targeting flatfish stocks in 2016. These 
catch limit reductions are also in place for the 2017 fishing year, so 
we expect southern windowpane flounder catch in 2017 to be similar to 
catch in 2016.
    Current stock status and our environmental analyses confirm that 
the 2015 overage has not resulted in negative biological consequences 
for southern windowpane flounder. The 2015 assessment update for 
southern windowpane flounder stock found that the stock is not 
overfished and that overfishing is not occurring. The stock was 
declared rebuilt in 2012, and overfishing has not occurred on this 
stock since 2006. NMFS trawl survey indices indicate that stock size 
has been relatively stable, has been increasing since hitting a time 
series low in the mid-1990s, and has increased marginally between 2014 
and 2016. This stock history shows that maintaining the AMs is not 
expected to provide substantial additional mitigation of potential 
adverse biological impacts.
    The analysis in recent Northeast Multispecies FMP actions also 
shows that removing the AMs for non-groundfish vessels should not 
result in negative impacts for the southern windowpane flounder stock. 
Framework 52 addressed the biological impacts of removing the AMs in 
terms of the overall southern windowpane flounder ACL, and does not 
differentiate between sub-ACLs for different fisheries, or catch by 
different gear types. Further,

[[Page 41566]]

available data suggest that removing the AMs for non-groundfish trawl 
vessels will not have biological impacts different than those analyzed 
in Framework 55, which set the total southern windowpane flounder ACL 
for fishing year 2017. Given the current operation of the groundfish 
and non-groundfish fisheries, and the status of southern windowpane 
flounder stock, leaving the AMs in place for non-groundfish vessels is 
expected to result in serious direct economic loss to vessels targeting 
summer flounder inside the AM areas without contributing further to the 
goals of the AMs.
    Acting quickly to remove the AMs on the summer flounder is 
particularly important because a greater portion of the summer flounder 
fishery catch occurs in the summer months through September. Yet, no 
additional AM goal is accomplished through maintaining the AMs on that 
fishery after August 31. We have determined that removing the AMs as 
soon as practicable after August 31 this fishing year through an 
emergency action is necessary and outweighs the benefits of using the 
advance notice and comment procedures. In developing any new measures 
through Framework 57, the Council process will provide ample 
opportunity for notice and comment and full participation. 
Consequently, the opportunity for notice and comment is only delayed. 
In addition, avoiding the serious economic loss for a reasonably 
unforeseen event, while acting consistently with the conservation and 
management goals of the AMs, outweighs the benefit of advance notice 
and comment.

Emergency Measures

    This emergency action extends to non-groundfish vessels the 
existing provision that already allows us to remove the southern 
windowpane flounder AM in September for groundfish vessels, if we 
determine that catch remained below the ACL in the year immediately 
following an overage. Effective September 1, 2017, this action 
temporarily removes (for 180 days) the southern windowpane flounder AMs 
for non-groundfish trawl vessels fishing with a codend mesh size of 5 
inches (12.7 cm) or greater. Non-groundfish trawl vessels will be able 
to fish inside of the large southern windowpane flounder AM areas 
(Figure 1) without selective gear, which increases fishing 
opportunities to target other flatfish species for which they hold a 
permit and for which quota is available. 
[GRAPHIC] [TIFF OMITTED] TR01SE17.000

Renewal of Emergency Regulations

    The Magnuson-Stevens Act limits NMFS' emergency action authority to 
an initial period of 180 days, with a potential extension up to an 
additional 186 days, if warranted. The public has an opportunity to 
comment on the initial emergency action (see ADDRESSES). After 
considering public comments on this emergency rule, NMFS may extend the 
emergency regulation for one additional period of not more than 186 
days to provide non-groundfish trawl vessels access to the AM areas 
without the use of selective trawl gear for the remainder of the 2017 
fishing year, through April 30, 2018.

Classification

    The NMFS Assistant Administrator has determined that this emergency 
rule is consistent with the criteria and justifications for use of 
emergency measures in section 305(c) of the Magnuson-Stevens Act, and 
is consistent with the Northeast Multispecies FMP, other provisions of 
the Magnuson-Stevens Act, the Administrative Procedure Act (APA), and 
other applicable law.
    Section 553 of the APA establishes procedural requirements 
applicable to rulemaking by Federal agencies. The purpose of these 
requirements is to ensure public access to the Federal rulemaking 
process and to give the public adequate notice and opportunity for 
comment. Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator 
for Fisheries finds good cause to waive prior notice and the 
opportunity for public comment because it would be impracticable and 
contrary to the public interest. Additionally, this rule is excepted 
from the 30-day delayed effectiveness provision of the APA under 5 
U.S.C. 553(d)(1) because it relieves a restriction by removing the 
southern windowpane flounder AM areas for non-groundfish trawl vessels.
    This is the first year the AMs have been triggered for both 
groundfish and non-groundfish trawl vessels, and it is also the first 
time we are removing the AMs for groundfish vessels under

[[Page 41567]]

existing regulatory authority. Without additional action, the AMs for 
non-groundfish vessels would remain in place for the entire 2017 
fishing year, through April 30, 2018. Maintaining the AMs on the non-
groundfish fishery presents fairness, equity, and conservation issues 
that were not previously apparent, as neither we nor the Council 
considered or foresaw the possibility of the AMs being removed for 
groundfish vessels but remaining in place for the non-groundfish trawl 
vessels, despite total catch being below the ACL. The Council intends 
to address this issue in Framework 57, which is scheduled for 
implementation for the 2018 fishing year. However, the Council cannot 
develop Framework 57 in time to address this issue and/or remove the 
AMs on the non-groundfish fishery this fishing year.
    Maintaining the AMs on the non-groundfish fishery for the full 
fishing year would have immediate serious economic impacts without 
contributing further to the conservation goals of the AMs. If the AM 
areas are in place for the full fishing year, they are estimated to 
result in $2 million in lost revenue in catch of yellowtail flounder, 
winter flounder, summer flounder, and scup. The AM areas do not 
prohibit all fishing with bottom-tending trawls, but require the use of 
trawl gear designed to minimize flatfish catch, which eliminates access 
to target species that vessels cannot recoup even if fishing in other 
areas. Removing the AMs this fishing year through an emergency action 
mitigates serious economic harm to the non-groundfish fishery while the 
Council develops permanent FMP measures.
    For all of the reasons outlined above, NMFS finds it impracticable 
and contrary to the public interest to provide prior opportunity to 
comment on these emergency measures. Because this rule alleviates a 
restriction, which if continued would otherwise have serious and 
unnecessary economic harm on non-groundfish trawl vessels, it is not 
subject to the 30-day delayed effectiveness provision of the APA. Prior 
notice and opportunity for public comment and/or a 30-day delayed 
effectiveness would prevent the positive benefits that this rule is 
intended to provide, particularly because the fisheries most affected 
by the AM areas are most active in the summer months through September.
    This action is being taken pursuant to the emergency provision of 
the Magnuson-Stevens Act and is exempt from OMB review.
    This emergency rule does not contain policies with Federalism or 
``takings'' implications as those terms are defined in E.O. 13132 and 
E.O. 12630, respectively.
    This emergency rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is issued without opportunity for 
prior notice and opportunity for public comment.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: August 28, 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.  648.90, add paragraph (a)(5)(i)(D)(1)(iii) effective 
September 1, 2017 through February 28. 2018.
    The addition reads as follows:


Sec.  648.90  NE multispecies assessment, framework procedures and 
specifications, and flexible area action system.

    (a) * * *
    (5) * * *
    (i) * * *
    (D) * * *
    (1) * * *
    (iii) Emergency rule reducing the duration of southern windowpane 
flounder AM for non-groundfish vessels. Effective September 1, 2017 
through February 28. 2018, the southern windowpane flounder AM is 
removed for all vessels fishing with trawl gear with a codend mesh size 
equal to or greater than 5 inches (12.7 cm) in other, non-specified 
sub-components of the fishery, including, but not limited to, exempted 
fisheries that occur in Federal waters and fisheries harvesting 
exempted species specified in Sec.  648.80(b)(3).
* * * * *
[FR Doc. 2017-18495 Filed 8-31-17; 8:45 am]
BILLING CODE 3510-22-P

41564 Federal Register / Vol. 82, No. 169 / Friday, September 1, 2017 / Rules and Regulations rule, Atlantic migratory group cobia that requirements to provide prior notice overage. The rule is necessary because are sold are considered commercially and opportunity for public comment, new information indicates 2016 catch caught, and those that are not sold are pursuant to the authority set forth at 5 did not exceed the quota. This rule is considered recreationally caught. U.S.C. 553(b)(B), as such prior notice intended to mitigate negative economic The commercial quota for Atlantic and opportunity for public comment is impacts to non-groundfish vessels, migratory group cobia is 50,000 lb unnecessary and contrary to the public while maintaining conservation benefits (22,680 kg), round or gutted weight, for interest. Such procedures are for the southern windowpane flounder the 2017 fishing year, from January 1 unnecessary because the AMs for stock. through December 31, as specified in 50 Atlantic migratory group cobia have DATES: Effective September 1, 2017, CFR 622.384(d)(2). already been subject to notice and through February 28. 2018. Comments The AMs for the commercial sector of comment, and all that remains is to must be submitted by October 2, 2017. Atlantic migratory group cobia, notify the public of the commercial ADDRESSES: You may submit comments, specified at 50 CFR 622.388(f)(1)(i), closure for the remainder of the 2017 identified by NOAA-NMFS-2017-0105 require that NMFS file a notification fishing year. Prior notice and by any of the following methods: with the Office of the Federal Register opportunity for public comment on this • Electronic submissions: Submit all to prohibit the sale and purchase of action would be contrary to the public electronic public comments via the cobia for the remainder of the fishing interest, because of the need to Federal eRulemaking Portal. Go to year if commercial landings reach or are immediately implement the commercial www.regulations.gov/#!docketDetail;D= projected to reach the commercial quota closure to protect Atlantic migratory NOAA-NMFS-2017-0105, click the specified in § 622.384(d)(2). The group cobia, since the capacity of the ‘‘Comment Now!’’ icon, complete the commercial AM is triggered for 2017, fishing fleet allows for rapid harvest of required fields, and enter or attach your because NMFS projects that commercial the commercial quota. Prior notice and comments. landings of Atlantic migratory group opportunity for public comment would • Mail: Submit written comments to cobia will reach the commercial quota require time and would potentially John K. Bullard, Regional on August 30, 2017. Accordingly, the result in a harvest that exceeds the Administrator, National Marine commercial sector for Atlantic migratory commercial quota. Fisheries Service, 55 Great Republic group cobia is closed in the EEZ at 12:01 For the aforementioned reasons, the Drive, Gloucester, MA 01930. Mark the a.m., local time, on September 5, 2017, AA also finds good cause to waive the outside of the envelope, ‘‘Comments on and remains closed until it reopens at 30-day delay in the effectiveness of this the Windowpane Emergency Action.’’ 12:01 a.m., local time, January 1, 2018. action under 5 U.S.C. 553(d)(3). Instructions: Comments sent by any During the commercial closure, the other method, to any other address or Authority: 16 U.S.C. 1801 et seq. sale and purchase of Atlantic migratory individual, or received after the end of group cobia is prohibited. Additionally, Dated: August 29, 2017. the comment period, may not be on January 24, 2017, NMFS closed the Alan D. Risenhoover, considered by NMFS. All comments recreational sector for Atlantic Director, Office of Sustainable Fisheries, received are a part of the public record migratory group cobia in the EEZ for the National Marine Fisheries Service. and will generally be posted for public remainder of the 2017 fishing year (82 [FR Doc. 2017–18611 Filed 8–29–17; 4:15 pm] viewing on www.regulations.gov FR 8363, January 25, 2017). Therefore, BILLING CODE 3510–22–P without change. All personal identifying the possession limit for recreational information (e.g., name, address, etc.), Atlantic migratory group cobia in the confidential business information, or EEZ is zero for the remainder of the DEPARTMENT OF COMMERCE otherwise sensitive information 2017 fishing year. The prohibition on submitted voluntarily by the sender will sale and purchase does not apply to National Oceanic and Atmospheric Administration be publicly accessible. NMFS will Atlantic migratory group cobia that were accept anonymous comments (enter harvested, landed ashore, and sold prior ‘‘N/A’’ in the required fields if you wish to 12:01 a.m., local time, September 5, 50 CFR Part 648 to remain anonymous). 2017, and were held in cold storage by [Docket No. 170808738–7777–01] FOR FURTHER INFORMATION CONTACT: Aja a dealer or processor. Szumylo, Fishery Policy Analyst, RIN 0648–BH11 Classification phone: 978–281–9195. Magnuson-Stevens Fishery SUPPLEMENTARY INFORMATION: On August The Regional Administrator for the Conservation and Management Act 1, 2017, we implemented accountability NMFS Southeast Region has determined Provisions; Fisheries of the measures (AMs) in response to an this temporary rule is necessary for the Northeastern United States; Northeast overage of the 2015 southern conservation and management of Groundfish Fishery; Fishing Year 2017; windowpane flounder annual catch Atlantic migratory group cobia and is Emergency Removal of Southern limit (ACL) (82 FR 35660). Due to data consistent with the Magnuson-Stevens Windowpane Accountability Measures availability, AMs for windowpane Act and other applicable laws. This action is taken under 50 CFR AGENCY: National Marine Fisheries flounder are typically implemented at 622.388(f)(1)(i) and is exempt from Service (NMFS), National Oceanic and the start of the second fishing year after review under Executive Order 12866. Atmospheric Administration (NOAA), an overage. The AMs require trawl These measures are exempt from the Commerce. vessels fishing in certain areas in procedures of the Regulatory Flexibility ACTION: Temporary rule; emergency southern New England to use selective sradovich on DSK3GMQ082PROD with RULES Act because the temporary rule is issued action; request for comments. trawl gear that limit flatfish catch. The without opportunity for prior notice and southern windowpane AM areas apply comment. SUMMARY: This emergency rule removes to all groundfish trawl vessels. The AM This action is based on the best the 2017 southern windowpane areas also apply to non-groundfish trawl scientific information available. The flounder accountability measures for vessels fishing with a codend mesh size Assistant Administrator for NOAA non-groundfish trawl vessels that were of 5 inches (12.7 cm) or greater, which Fisheries finds good cause to waive the triggered as a result of a 2015 quota includes vessels that target summer VerDate Sep<11>2014 16:20 Aug 31, 2017 Jkt 241001 PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 E:\FR\FM\01SER1.SGM 01SER1

Federal Register / Vol. 82, No. 169 / Friday, September 1, 2017 / Rules and Regulations 41565 flounder, scup, black sea bass, and authority to remove the southern vessels, despite catch being below the skates. The AMs have been triggered for windowpane flounder AM areas during ACL. groundfish vessels in previous years, the fishing year is limited to the AMs are intended to correct but this is the first year the AMs have groundfish fishery only, and the operational issues that cause overages been triggered for both groundfish and Regional Administrator currently is not and mitigate biological consequences of non-groundfish trawl vessels. These authorized to remove the AM areas for overages. The fishery’s 2016 catch AMs are estimated to result in $2 non-groundfish trawl vessels. Without results demonstrate that the fishery million in lost revenue in catch of this emergency action, the AMs for non- appears to have corrected the yellowtail flounder, winter flounder, groundfish vessels would remain in operational issues that caused the 2015 summer flounder, and scup. The AMs place for the entire 2017 fishing year, overage. The windowpane flounder impose a substantial financial hardship through April 30, 2018. AMs act as a disincentive to exceed an on both groundfish and non-groundfish The New England Council, with ACL and, if an overage does occur, the vessels, particularly because the AM support from the Mid-Atlantic Council, possibility of removing that AM during areas eliminate access to target species intends to address the AMs for non- a fishing year is intended to provide an that vessels are unlikely to recoup even groundfish trawl vessels in Framework additional incentive to change fishing if they move to fish in other areas. 57 to the Northeast Multispecies FMP, behavior in the year following an In 2015, the New England Fishery which is scheduled to be implemented overage. Consistent with this incentive, Management Council developed for the 2018 fishing year. However, the fishery’s 2016 catch was below the Framework Adjustment 52 to the neither Council is able to take action in ACL following the 2015 overage despite Northeast Multispecies Fishery time to address this issue for the 2017 there being no AM areas in effect in Management Plan (FMP) to reduce the fishing year in order to minimize the 2016. In addition to the AM measures economic impacts of the windowpane adverse economic impact of the 2017 operating as expected, there were flounder AMs for the groundfish fishery. AMs on the non-groundfish fishery. changes in the groundfish and non- At the time, the AMs were triggered groundfish fisheries that contributed to Justification for Emergency Action only for the groundfish fishery. The limiting 2016 catch below both the non- Council intentionally limited the scope Section 305(c) of the Magnuson- groundfish fishery sub-ACL and the of Framework 52 to the groundfish Stevens Act (16 U.S.C. 1855(c)) total ACL. Catch limits for several fishery to ensure the action could be authorizes the Secretary of Commerce to Southern New England groundfish completed, and final measures implement emergency regulations to stocks and summer flounder were implemented, in time for the start of the address fishery emergencies. NMFS reduced in 2016 relative to 2015, which 2015 fishing year. Framework 52 policy guidelines for the use of limited overall fishing effort targeting included a provision that gave the emergency rules define criteria for flatfish stocks in 2016. These catch limit Regional Administrator authority to determining whether an emergency reductions are also in place for the 2017 remove the windowpane flounder AM exists under section 305(c) of the fishing year, so we expect southern in-season if catch is below the ACL in Magnuson-Stevens Act (62 FR 44421; windowpane flounder catch in 2017 to the year immediately following the August 21, 1997). These criteria limit be similar to catch in 2016. overage. Thus, although we emergency management actions to Current stock status and our implemented an AM in 2017 due to an ‘‘recent, unforeseen events or recently environmental analyses confirm that the overage in 2015, we can remove the AM discovered circumstances’’ that present 2015 overage has not resulted in in September if catch did not exceed the serious management problems in the negative biological consequences for ACL in 2016, the intervening year. fishery when emergency regulations southern windowpane flounder. The Southern windowpane flounder catch would bring immediate benefits that 2015 assessment update for southern data for 2016 recently became available outweigh the value of advance notice windowpane flounder stock found that showing total 2016 catch was 82 percent and public comment. the stock is not overfished and that of the total ACL, and catch by non- Maintaining the AMs on the non- overfishing is not occurring. The stock groundfish vessels was well below the groundfish fishery for the full fishing was declared rebuilt in 2012, and sub-ACL for this fishery component. year would have immediate serious overfishing has not occurred on this Following our announcement of the economic impacts without further stock since 2006. NMFS trawl survey 2015 windowpane flounder overage and contributing to the conservation goals of indices indicate that stock size has been resulting 2017 AMs, the New England the AMs. Additionally, maintaining the relatively stable, has been increasing and Mid-Atlantic Councils both AMs on the non-groundfish fishery since hitting a time series low in the requested that we consider all presents a fairness and equity issue that mid-1990s, and has increased remediation methods available to was not previously apparent. The 2017 marginally between 2014 and 2016. This remove or modify the southern fishing year is the first time that we stock history shows that maintaining the windowpane flounder AMs for 2017. have been required to implement these AMs is not expected to provide The Councils highlighted the economic AMs for both the groundfish and non- substantial additional mitigation of impacts of the AMs, as well as the status groundfish fisheries. Data supporting potential adverse biological impacts. of the stock, which is rebuilt with this removal only recently became The analysis in recent Northeast overfishing not occurring. Additionally, available, and it is the first time that Multispecies FMP actions also shows possession of southern windowpane these AMs can be removed from the that removing the AMs for non- flounder has been prohibited for all groundfish fishery but not the non- groundfish vessels should not result in fisheries since 2010. Given all of these groundfish fishery. Before this, neither negative impacts for the southern sradovich on DSK3GMQ082PROD with RULES factors, the Councils argued that the we, nor the Council, could have windowpane flounder stock. Framework AMs are unnecessary and punitive. As reasonably considered or foreseen the 52 addressed the biological impacts of a result, consistent with existing specific circumstance presented by the removing the AMs in terms of the regulatory authority, we removed the current situation, that is, the possibility overall southern windowpane flounder AMs for the groundfish fishery effective of the AMs being removed for ACL, and does not differentiate between September 1, 2017 (82 FR 35676; August groundfish vessels but remaining in sub-ACLs for different fisheries, or catch 1, 2017). However, the regulatory place for the non-groundfish trawl by different gear types. Further, VerDate Sep<11>2014 16:20 Aug 31, 2017 Jkt 241001 PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 E:\FR\FM\01SER1.SGM 01SER1

41566 Federal Register / Vol. 82, No. 169 / Friday, September 1, 2017 / Rules and Regulations available data suggest that removing the September. Yet, no additional AM goal Emergency Measures AMs for non-groundfish trawl vessels is accomplished through maintaining This emergency action extends to will not have biological impacts the AMs on that fishery after August 31. non-groundfish vessels the existing different than those analyzed in We have determined that removing the provision that already allows us to Framework 55, which set the total AMs as soon as practicable after August remove the southern windowpane southern windowpane flounder ACL for 31 this fishing year through an flounder AM in September for fishing year 2017. Given the current emergency action is necessary and groundfish vessels, if we determine that operation of the groundfish and non- outweighs the benefits of using the catch remained below the ACL in the groundfish fisheries, and the status of advance notice and comment year immediately following an overage. southern windowpane flounder stock, procedures. In developing any new Effective September 1, 2017, this action leaving the AMs in place for non- measures through Framework 57, the temporarily removes (for 180 days) the groundfish vessels is expected to result Council process will provide ample southern windowpane flounder AMs for in serious direct economic loss to opportunity for notice and comment non-groundfish trawl vessels fishing vessels targeting summer flounder and full participation. Consequently, the with a codend mesh size of 5 inches inside the AM areas without opportunity for notice and comment is (12.7 cm) or greater. Non-groundfish contributing further to the goals of the only delayed. In addition, avoiding the trawl vessels will be able to fish inside AMs. serious economic loss for a reasonably of the large southern windowpane Acting quickly to remove the AMs on unforeseen event, while acting flounder AM areas (Figure 1) without the summer flounder is particularly consistently with the conservation and selective gear, which increases fishing important because a greater portion of management goals of the AMs, opportunities to target other flatfish the summer flounder fishery catch outweighs the benefit of advance notice species for which they hold a permit occurs in the summer months through and comment. and for which quota is available. Renewal of Emergency Regulations Classification public adequate notice and opportunity for comment. Pursuant to 5 U.S.C. The Magnuson-Stevens Act limits The NMFS Assistant Administrator 553(b)(B), the Assistant Administrator NMFS’ emergency action authority to an has determined that this emergency rule for Fisheries finds good cause to waive initial period of 180 days, with a is consistent with the criteria and prior notice and the opportunity for potential extension up to an additional justifications for use of emergency public comment because it would be 186 days, if warranted. The public has measures in section 305(c) of the impracticable and contrary to the public an opportunity to comment on the Magnuson-Stevens Act, and is interest. Additionally, this rule is initial emergency action (see consistent with the Northeast excepted from the 30-day delayed ADDRESSES). After considering public Multispecies FMP, other provisions of effectiveness provision of the APA comments on this emergency rule, the Magnuson-Stevens Act, the under 5 U.S.C. 553(d)(1) because it Administrative Procedure Act (APA), relieves a restriction by removing the NMFS may extend the emergency sradovich on DSK3GMQ082PROD with RULES and other applicable law. southern windowpane flounder AM regulation for one additional period of not more than 186 days to provide non- Section 553 of the APA establishes areas for non-groundfish trawl vessels. groundfish trawl vessels access to the procedural requirements applicable to This is the first year the AMs have AM areas without the use of selective rulemaking by Federal agencies. The been triggered for both groundfish and purpose of these requirements is to non-groundfish trawl vessels, and it is trawl gear for the remainder of the 2017 ensure public access to the Federal also the first time we are removing the fishing year, through April 30, 2018. ER01SE17.000</GPH> rulemaking process and to give the AMs for groundfish vessels under VerDate Sep<11>2014 16:20 Aug 31, 2017 Jkt 241001 PO 00000 Frm 00066 Fmt 4700 Sfmt 4700 E:\FR\FM\01SER1.SGM 01SER1

Federal Register / Vol. 82, No. 169 / Friday, September 1, 2017 / Rules and Regulations 41567 existing regulatory authority. Without implications as those terms are defined DEPARTMENT OF COMMERCE additional action, the AMs for non- in E.O. 13132 and E.O. 12630, groundfish vessels would remain in respectively. National Oceanic and Atmospheric place for the entire 2017 fishing year, Administration This emergency rule is exempt from through April 30, 2018. Maintaining the the procedures of the Regulatory AMs on the non-groundfish fishery 50 CFR Part 679 Flexibility Act because the rule is issued presents fairness, equity, and [Docket No. 160920866–7167–02] conservation issues that were not without opportunity for prior notice and previously apparent, as neither we nor opportunity for public comment. RIN 0648–XF647 the Council considered or foresaw the List of Subjects in 50 CFR Part 648 possibility of the AMs being removed Fisheries of the Exclusive Economic for groundfish vessels but remaining in Fisheries, Fishing, Recordkeeping and Zone Off Alaska; Inseason Adjustment place for the non-groundfish trawl reporting requirements. to the 2017 Gulf of Alaska Pollock vessels, despite total catch being below Seasonal Apportionments Dated: August 28, 2017. the ACL. The Council intends to address AGENCY: National Marine Fisheries this issue in Framework 57, which is Samuel D. Rauch III, Service (NMFS), National Oceanic and scheduled for implementation for the Deputy Assistant Administrator for Atmospheric Administration (NOAA), 2018 fishing year. However, the Council Regulatory Programs, National Marine Fisheries Service. Commerce. cannot develop Framework 57 in time to ACTION: Temporary rule; inseason address this issue and/or remove the For the reasons set out in the adjustment. AMs on the non-groundfish fishery this preamble, 50 CFR part 648 is amended fishing year. as follows: SUMMARY: NMFS is adjusting the 2017 C Maintaining the AMs on the non- seasonal apportionments of the total groundfish fishery for the full fishing PART 648—FISHERIES OF THE allowable catch (TAC) for pollock in the year would have immediate serious NORTHEASTERN UNITED STATES Gulf of Alaska (GOA) by re-apportioning economic impacts without contributing unharvested pollock TAC in Statistical further to the conservation goals of the Areas 610, 620, and 630 of the GOA. AMs. If the AM areas are in place for the ■ 1. The authority citation for part 648 continues to read as follows: This action is necessary to provide full fishing year, they are estimated to opportunity for harvest of the 2017 result in $2 million in lost revenue in Authority: 16 U.S.C. 1801 et seq. pollock TAC, consistent with the goals catch of yellowtail flounder, winter and objectives of the Fishery flounder, summer flounder, and scup. ■ 2. In § 648.90, add paragraph Management Plan for Groundfish of the The AM areas do not prohibit all fishing (a)(5)(i)(D)(1)(iii) effective September 1, Gulf of Alaska. with bottom-tending trawls, but require 2017 through February 28. 2018. DATES: Effective 1200 hours, Alaska the use of trawl gear designed to The addition reads as follows: local time (A.l.t.), August 29, 2017, until minimize flatfish catch, which 2400 hours A.l.t., December 31, 2017. eliminates access to target species that § 648.90 NE multispecies assessment, framework procedures and specifications, FOR FURTHER INFORMATION CONTACT: Josh vessels cannot recoup even if fishing in other areas. Removing the AMs this and flexible area action system. Keaton, 907–586–7228. fishing year through an emergency SUPPLEMENTARY INFORMATION: NMFS (a) * * * manages the groundfish fishery in the action mitigates serious economic harm to the non-groundfish fishery while the (5) * * * GOA exclusive economic zone Council develops permanent FMP (i) * * * according to the Fishery Management measures. Plan for Groundfish of the Gulf of (D) * * * Alaska (FMP) prepared by the North For all of the reasons outlined above, NMFS finds it impracticable and (1) * * * Pacific Fishery Management Council contrary to the public interest to provide (iii) Emergency rule reducing the (Council) under authority of the prior opportunity to comment on these duration of southern windowpane Magnuson-Stevens Fishery emergency measures. Because this rule flounder AM for non-groundfish vessels. Conservation and Management Act. alleviates a restriction, which if Effective September 1, 2017 through Regulations governing fishing by U.S. continued would otherwise have serious February 28. 2018, the southern vessels in accordance with the FMP and unnecessary economic harm on windowpane flounder AM is removed appear at subpart H of 50 CFR part 600 non-groundfish trawl vessels, it is not and 50 CFR part 679. for all vessels fishing with trawl gear subject to the 30-day delayed The annual pollock TACs in with a codend mesh size equal to or Statistical Areas 610, 620, and 630 of effectiveness provision of the APA. greater than 5 inches (12.7 cm) in other, Prior notice and opportunity for public the GOA are apportioned among four non-specified sub-components of the seasons, in accordance with comment and/or a 30-day delayed fishery, including, but not limited to, § 679.23(d)(2). Regulations at effectiveness would prevent the positive benefits that this rule is intended to exempted fisheries that occur in Federal § 679.20(a)(5)(iv)(B) allow the provide, particularly because the waters and fisheries harvesting underharvest of a seasonal fisheries most affected by the AM areas exempted species specified in apportionment to be added to are most active in the summer months § 648.80(b)(3). subsequent seasonal apportionments, sradovich on DSK3GMQ082PROD with RULES through September. * * * * * provided that any revised seasonal This action is being taken pursuant to [FR Doc. 2017–18495 Filed 8–31–17; 8:45 am] apportionment does not exceed 20 the emergency provision of the BILLING CODE 3510–22–P percent of the seasonal apportionment Magnuson-Stevens Act and is exempt for a given statistical area. Therefore, from OMB review. NMFS is increasing the C season This emergency rule does not contain apportionment of pollock in Statistical policies with Federalism or ‘‘takings’’ Areas 610, 620, and 630 of the GOA to VerDate Sep<11>2014 16:20 Aug 31, 2017 Jkt 241001 PO 00000 Frm 00067 Fmt 4700 Sfmt 4700 E:\FR\FM\01SER1.SGM 01SER1


Document Created: 2017-09-01 01:50:39
Document Modified: 2017-09-01 01:50:39
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionTemporary rule; emergency action; request for comments.
DatesEffective September 1, 2017, through February 28. 2018. Comments must be submitted by October 2, 2017.
ContactAja Szumylo, Fishery Policy Analyst, phone: 978-281-9195.
FR Citation82 FR 41564 
RIN Number0648-BH11
CFR AssociatedFisheries; Fishing and Recordkeeping and Reporting Requirements
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