[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]


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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:
    <bullet> 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.
    <bullet> 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]
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