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, 41564-41567 [2017-18495]
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Federal Register / Vol. 82, No. 169 / Friday, September 1, 2017 / Rules and Regulations
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rule, Atlantic migratory group cobia that
are sold are considered commercially
caught, and those that are not sold are
considered recreationally caught.
The commercial quota for Atlantic
migratory group cobia is 50,000 lb
(22,680 kg), round or gutted weight, for
the 2017 fishing year, from January 1
through December 31, as specified in 50
CFR 622.384(d)(2).
The AMs for the commercial sector of
Atlantic migratory group cobia,
specified at 50 CFR 622.388(f)(1)(i),
require that NMFS file a notification
with the Office of the Federal Register
to prohibit the sale and purchase of
cobia for the remainder of the fishing
year if commercial landings reach or are
projected to reach the commercial quota
specified in § 622.384(d)(2). The
commercial AM is triggered for 2017,
because NMFS projects that commercial
landings of Atlantic migratory group
cobia will reach the commercial quota
on August 30, 2017. Accordingly, the
commercial sector for Atlantic migratory
group cobia is closed in the EEZ at 12:01
a.m., local time, on September 5, 2017,
and remains closed until it reopens at
12:01 a.m., local time, January 1, 2018.
During the commercial closure, the
sale and purchase of Atlantic migratory
group cobia is prohibited. Additionally,
on January 24, 2017, NMFS closed the
recreational sector for Atlantic
migratory group cobia in the EEZ for the
remainder of the 2017 fishing year (82
FR 8363, January 25, 2017). Therefore,
the possession limit for recreational
Atlantic migratory group cobia in the
EEZ is zero for the remainder of the
2017 fishing year. The prohibition on
sale and purchase does not apply to
Atlantic migratory group cobia that were
harvested, landed ashore, and sold prior
to 12:01 a.m., local time, September 5,
2017, and were held in cold storage by
a dealer or processor.
Classification
The Regional Administrator for the
NMFS Southeast Region has determined
this temporary rule is necessary for the
conservation and management of
Atlantic migratory group cobia and is
consistent with the Magnuson-Stevens
Act and other applicable laws.
This action is taken under 50 CFR
622.388(f)(1)(i) and is exempt from
review under Executive Order 12866.
These measures are exempt from the
procedures of the Regulatory Flexibility
Act because the temporary rule is issued
without opportunity for prior notice and
comment.
This action is based on the best
scientific information available. The
Assistant Administrator for NOAA
Fisheries finds good cause to waive the
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requirements to provide prior notice
and opportunity for public comment,
pursuant to the authority set forth at 5
U.S.C. 553(b)(B), as such prior notice
and opportunity for public comment is
unnecessary and contrary to the public
interest. Such procedures are
unnecessary because the AMs for
Atlantic migratory group cobia have
already been subject to notice and
comment, and all that remains is to
notify the public of the commercial
closure for the remainder of the 2017
fishing year. Prior notice and
opportunity for public comment on this
action would be contrary to the public
interest, because of the need to
immediately implement the commercial
closure to protect Atlantic migratory
group cobia, since the capacity of the
fishing fleet allows for rapid harvest of
the commercial quota. Prior notice and
opportunity for public comment would
require time and would potentially
result in a harvest that exceeds the
commercial quota.
For the aforementioned reasons, the
AA also finds good cause to waive the
30-day delay in the effectiveness of this
action under 5 U.S.C. 553(d)(3).
Authority: 16 U.S.C. 1801 et seq.
Dated: August 29, 2017.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries,
National Marine Fisheries Service.
[FR Doc. 2017–18611 Filed 8–29–17; 4:15 pm]
BILLING CODE 3510–22–P
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
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; emergency
action; request for comments.
AGENCY:
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
SUMMARY:
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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
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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 nongroundfish 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
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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 nongroundfish 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 nongroundfish 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 MagnusonStevens 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 nongroundfish 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 nongroundfish 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 nongroundfish 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
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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 nongroundfish fisheries that contributed to
limiting 2016 catch below both the nongroundfish 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 nongroundfish 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,
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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
Renewal of Emergency Regulations
Classification
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 nongroundfish 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.
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
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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.
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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 nongroundfish fisheries, and the status of
southern windowpane flounder stock,
leaving the AMs in place for nongroundfish 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
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Federal Register / Vol. 82, No. 169 / Friday, September 1, 2017 / Rules and Regulations
existing regulatory authority. Without
additional action, the AMs for nongroundfish 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 nongroundfish 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’’
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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
1. The authority citation for part 648
continues to read as follows:
■
Authority: 16 U.S.C. 1801 et seq.
2. In § 648.90, add paragraph
(a)(5)(i)(D)(1)(iii) effective September 1,
2017 through February 28. 2018.
The addition reads as follows:
■
§ 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
§ 648.80(b)(3).
*
*
*
*
*
[FR Doc. 2017–18495 Filed 8–31–17; 8:45 am]
BILLING CODE 3510–22–P
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41567
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 160920866–7167–02]
RIN 0648–XF647
Fisheries of the Exclusive Economic
Zone Off Alaska; Inseason Adjustment
to the 2017 Gulf of Alaska Pollock
Seasonal Apportionments
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; inseason
adjustment.
AGENCY:
NMFS is adjusting the 2017 C
seasonal apportionments of the total
allowable catch (TAC) for pollock in the
Gulf of Alaska (GOA) by re-apportioning
unharvested pollock TAC in Statistical
Areas 610, 620, and 630 of the GOA.
This action is necessary to provide
opportunity for harvest of the 2017
pollock TAC, consistent with the goals
and objectives of the Fishery
Management Plan for Groundfish of the
Gulf of Alaska.
DATES: Effective 1200 hours, Alaska
local time (A.l.t.), August 29, 2017, until
2400 hours A.l.t., December 31, 2017.
FOR FURTHER INFORMATION CONTACT: Josh
Keaton, 907–586–7228.
SUPPLEMENTARY INFORMATION: NMFS
manages the groundfish fishery in the
GOA exclusive economic zone
according to the Fishery Management
Plan for Groundfish of the Gulf of
Alaska (FMP) prepared by the North
Pacific Fishery Management Council
(Council) under authority of the
Magnuson-Stevens Fishery
Conservation and Management Act.
Regulations governing fishing by U.S.
vessels in accordance with the FMP
appear at subpart H of 50 CFR part 600
and 50 CFR part 679.
The annual pollock TACs in
Statistical Areas 610, 620, and 630 of
the GOA are apportioned among four
seasons, in accordance with
§ 679.23(d)(2). Regulations at
§ 679.20(a)(5)(iv)(B) allow the
underharvest of a seasonal
apportionment to be added to
subsequent seasonal apportionments,
provided that any revised seasonal
apportionment does not exceed 20
percent of the seasonal apportionment
for a given statistical area. Therefore,
NMFS is increasing the C season
apportionment of pollock in Statistical
Areas 610, 620, and 630 of the GOA to
SUMMARY:
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]]>Agencies
[Federal Register Volume 82, Number 169 (Friday, September 1, 2017)]
[Rules and Regulations]
[Pages 41564-41567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18495]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
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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
