41564 Federal Register / Vol. 82, No. 169 / Friday, September 1, 2017 / Rules and Regulations 

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 

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 

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 


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Federal Register / Vol. 82, No. 169 / Friday, September 1, 2017 / Rules and Regulations 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 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 

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 

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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41566 Federal Register / Vol. 82, No. 169 / Friday, September 1, 2017 / Rules and Regulations 

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 

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. 

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 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. 

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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Federal Register / Vol. 82, No. 169 / Friday, September 1, 2017 / Rules and Regulations 41567 

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’’ 

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 

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 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; inseason 

adjustment. 

SUMMARY: 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 


sradovich on DSK3GMQ082PROD with RULES