[Federal Register Volume 81, Number 117 (Friday, June 17, 2016)]
[Rules and Regulations]
[Pages 39591-39595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14349]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 160609505-6505-01]
RIN 0648-BG07


Fisheries of the Northeastern United States; Blueline Tilefish 
Fishery; Secretarial Interim Action

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

ACTION: Temporary rule; interim measures; request for comments.

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SUMMARY: This temporary rule implements possession limits and permit 
requirements for the commercial and recreational blueline tilefish 
fisheries in waters north of the Virginia/North Carolina border. These 
interim management measures are necessary to prevent a return to an 
unregulated fishery which could result in overfishing and to 
temporarily constrain fishing effort on the blueline tilefish stock 
while a long-term management plan is implemented. These measures are 
expected to constrain fishing mortality and help ensure the long-term 
sustainability of the stock, while potentially preventing overfishing.

DATES: Effective June 17, 2016, through December 14, 2016. Comments 
must be received on or before July 18, 2016.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2016-0063, 
by either of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0063, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to NMFS, Greater Atlantic 
Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 
01930. Mark the outside of the envelope ``Comments on Blueline Tilefish 
Interim Measures.''
    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).
    Copies of the Environmental Assessment and Regulatory Impact Review 
(EA/RIR), Supplemental Information Report (SIR), and other supporting 
documents for these interim measures are available from John K. 
Bullard, Regional Administrator, NMFS, Greater Atlantic Regional 
Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930. The 
EA/RIR and SIR are also accessible via the internet at: 
www.greateratlantic.fisheries.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Douglas Potts, Fishery Policy Analyst, 
(978) 281-9341.

SUPPLEMENTARY INFORMATION: 

Background

    Blueline tilefish (Caulolatilus microps) are mainly distributed in 
Atlantic waters off the eastern United States, and have been managed as 
part of the South Atlantic Fishery Management Council's Snapper Grouper 
Fishery Management Plan (FMP). However, South Atlantic management 
measures do not apply to vessels fishing for blueline tilefish north of 
the South Atlantic Council's jurisdiction (which

[[Page 39592]]

extends as far north as the Virginia/North Carolina border).
    In recent years, there has been increasing recreational and 
commercial fishing activity for blueline tilefish in the unregulated 
mid-Atlantic portion of the Greater Atlantic Region, north of the 
jurisdiction of the South Atlantic Council's Snapper Grouper FMP. From 
2005-2013, commercial landings in the Greater Atlantic Region (Virginia 
to Maine) averaged 11,000 lb (5 mt) per year. From 2002-2011, 
recreational charter/party vessels in this area reported an average of 
2,400 fish per year. But after the South Atlantic Council's FMP 
implemented significant harvest limits to protect blueline tilefish 
under its jurisdiction, commercial landings in the unregulated mid-
Atlantic portion of the blueline tilefish range increased to over 
217,000 lb (98 mt) in 2014 and recreational landings from 2012-2014 
increased to 10,000-16,000 fish per year. This rapid increase in 
blueline tilefish harvest in the Greater Atlantic Region poses a 
potential long-term risk to the conservation of the species and the 
substantial possibility of overfishing the stock.
    Based upon these concerns about the effects of the unregulated 
harvest of blueline tilefish, the Mid-Atlantic Fishery Management 
Council submitted a request on March 10, 2015, for Secretarial 
emergency action under section 305(c) of the Magnuson-Stevens Fishery 
Conservation and Management Act to implement temporary management 
measures for blueline tilefish in the Greater Atlantic Region. On June 
4, 2015, NMFS published an emergency rule (80 FR 31864) to establish 
temporary management measures, including possession limits for the 
commercial and recreational sectors of the fishery and permitting and 
reporting requirements for commercial and for-hire vessels that fish 
for blueline tilefish north of the Virginia/North Carolina border. Then 
on November 30, 2015 (80 FR 74712), NMFS extended the emergency 
measures for an additional 186 days through June 3, 2016.
    After requesting emergency action, the Mid-Atlantic Council began 
developing a plan for long-term management of this species. At its 
April 2015 meeting, the Council initiated scoping for either a new 
deep-water species complex FMP, with an initial focus on blueline 
tilefish, or an amendment to the Golden Tilefish FMP to add blueline 
tilefish to the management unit. After scoping hearings and review of 
public comments, the Council opted to initiate an amendment to the 
existing Golden Tilefish FMP. Following development of a range of 
management measures, the Council held a series of public meetings in 
March 2016 to solicit feedback on the measures contained in the draft 
amendment. On April 13, 2016, the Mid-Atlantic Council took final 
action to select preferred alternatives and approve the amendment for 
submission to NMFS for review and implementation. Due to the procedural 
and public participation requirements of the Magnuson-Stevens Act, the 
National Environmental Policy Act, and the Administrative Procedure 
Act, and the need to fully deliberate and develop the amendment, it was 
not possible for the Council to prepare its final action for submission 
to NMFS for approval, and for NMFS to implement it, before the 
emergency measures expired.
    NMFS anticipates that the action will be submitted to the Secretary 
of Commerce for review and approval during the summer of 2016. NMFS, 
acting on behalf of the Secretary of Commerce, will then conduct the 
formal review and approval process required by the Magnuson-Stevens Act 
and complete the necessary notice-and-comment rulemaking to implement 
the Council's recommended management measures. If approved, it is 
anticipated that permanent measures will be in place by the end of this 
year. However, the current emergency regulations have expired and the 
fishery would be unregulated in Federal waters until the Mid-Atlantic 
Council's recommended management measures can be formally reviewed and 
implemented. The potential for a dramatic increase in catch of blueline 
tilefish resulting from the fishery being unregulated could result in 
overfishing and pose a threat to the long-term sustainability of the 
resource. When the fishery was previously unregulated, substantial 
commercial and recreational landings were occurring in several states 
from New Jersey south. In the interim since emergency regulations have 
been put in place in Federal waters, all states from New Jersey south 
have implemented state measures that could constrain harvest if a lapse 
in Federal regulation occurs. However, there remains a substantial 
potential for unregulated landings to occur in states from New York 
north if the fishery returns to an extended unregulated state. Such 
landings would potentially subject the stock to overfishing and could 
have a long-term detrimental impact on the stock, even if the 
unregulated period is only a matter of months. Summer through early 
fall is typically the peak fishing period for blueline tilefish, so the 
lack of Federal regulations would occur right in this peak time.
    Blueline tilefish is a data poor species throughout the Atlantic 
coast and particularly in the mid-Atlantic. There is not currently an 
overfishing limit established for this stock; therefore, it cannot yet 
be quantitatively determined if overfishing is occurring. In March 
2016, the Mid-Atlantic Council's Scientific and Statistical Committee 
(SSC) reviewed all available information and for the first time set a 
target catch limit specifically for the mid-Atlantic fishery. For 2017, 
the SSC recommended an acceptable biological catch (ABC) of 87,031 lb 
(39.4 mt). Although this figure is not intended to apply to the 2016 
fishing year, it provides a reasonable estimate of a target catch level 
that, if exceeded, would be expected to cause long-term harm to the 
stock. In 2014, when the harvest was unregulated, the total mid-
Atlantic harvest was 274,972 lb (124.7 mt), and in 2015 it was 124,113 
lb (56.3 mt) (this decrease from 2014 is likely due to the fact that 
the emergency rule went into effect in June 2015). The harvests for 
2014 and 2015 were both dramatically higher than the new ABC of 87,031 
lb (39.4 mt). As noted earlier, recreational harvest of blueline 
tilefish in the Greater Atlantic Region has been increasing steadily 
since 2011, while in 2014 commercial landings suddenly increased 20-
fold over previous years. We do not have sufficient information to 
predict exactly how the resource would adapt to such a substantial 
increase in harvest. However, if the Mid-Atlantic blueline tilefish 
fishery were to return to an unregulated condition for an extended 
period of time, there is the strong potential for effort to expand as 
it did in 2014. Comparing potential 2016 catch to the recommended catch 
limit for 2017 creates a mismatch of evaluation across multiple years. 
However, because formal catch advice is only established at this point 
for 2017, it is informative by illustrating that if landings in 2016 
return to pre-regulation levels, those catches would grossly exceed 
next year's catch advice by some 200 percent. Catch levels of such 
magnitude would be expected to have a significant impact on the stock 
and cause a serious risk of overfishing. We estimate that maintaining 
the current Federal management measures through this interim rule could 
constrain catch close to the SSC's ABC recommendation until the Golden 
Tilefish FMP amendment approved by the Mid-Atlantic Council in April 
2016 can be implemented.
    Continuing the existing possession and permit requirements in this 
interim

[[Page 39593]]

rule is likely to prevent the potential for overfishing, if it is 
occurring, while we formally review the Mid-Atlantic Council's 
amendment and complete notice-and-comment rulemaking to implement that 
action.

Interim Management Measures

    Consistent with the previously issued emergency rule and extension, 
we are implementing the following management measures for blueline 
tilefish in the Greater Atlantic Region:
    1. A requirement for commercial or for-hire vessels landing 
blueline tilefish in the Greater Atlantic Region (i.e., north of the 
latitude of the Virginia/North Carolina border: 36[deg]33'01.0'' N. 
latitude) to hold a valid Greater Atlantic open access golden tilefish 
commercial or charter/party vessel permit, which are issued by the 
Greater Atlantic Regional Fisheries Office;
    2. A commercial possession limit of 300 lb (136 kg) whole weight 
per trip; and
    3. A recreational possession limit of seven blueline tilefish per 
person, per trip.
    None of these management measures modify the existing possession 
regulations for golden tilefish, or any other species. The requirement 
to hold a valid Greater Atlantic permit will ensure that catch, effort, 
and fishing location information for blueline tilefish will be reported 
moving forward. The duration of these interim measures is limited by 
the Magnuson-Stevens Act to an initial period of 180 days. It is likely 
that the Council's amendment can be implemented before an extension 
expires. Such measures would supersede these interim measures.

Interim Management Measures Justification

    NMFS has determined that this section 305(c) interim rule, directly 
following a section 305(c) emergency rule, independently meets the 
requirements in section 305(c) of the Magnuson-Stevens Act and NMFS 
policy guidance for the use of emergency rules (62 FR 44421, August 21, 
1997). This action meets the requirements of section 305(c)(3) for 
interim rules because it is needed to prevent the potential of 
overfishing and deterioration of this stock while the proposed 
amendment to address blueline tilefish conservation is being reviewed 
for approval. While a definitive, qualitative overfishing limit has not 
been formally established for this data-poor stock, NMFS has determined 
that there is a potential for overfishing because, based on fishing 
activity for this stock in 2014, unregulated fishing in the mid-
Atlantic portion of the blueline tilefish stock would likely exceed the 
proposed 2017 ABC by as much as 3 times or more.
    This interim rule is also consistent with the Guidelines 
established for appropriate use of 305(c) emergency rules in 1997 (62 
FR 44421, August 21, 1997). These guidelines state that emergency rules 
are only warranted when there are special circumstances where 
substantial harm to or disruption of the resource, fishery, or 
community would be caused in the time it would take to follow standard 
rulemaking procedures. The guidelines go on to state three criteria for 
approving a 305(c) emergency rule: (1) Results from recent, unforeseen 
events or recently discovered circumstances; (2) presents serious 
conservation or management problems in the fishery; and (3) can be 
addressed through emergency regulations for which the immediate 
benefits outweigh the value of advance notice, public comment, and 
deliberative consideration of the impacts on participants to the same 
extent as would be expected under the normal rulemaking process. 
Section 305(c) of the Magnuson-Stevens Act also provides for interim 
measures, which are a type of emergency rule.
    There have been significant new information and developments since 
the implementation of the emergency rule that qualify as recently 
discovered circumstances not present until after the implementation of 
the 2015 emergency rule. When the emergency measures were first 
implemented, substantial discussions were beginning between the South 
Atlantic and Mid-Atlantic Councils about management jurisdiction for 
the portion of the stock north of the North Carolina/Virginia border. 
Since then, those discussions have led to definitive guidance that the 
Mid-Atlantic Council would develop management measures for the portion 
of the stock within its jurisdiction. Consistent with this conclusion, 
the Mid-Atlantic Council's SSC developed an ABC for the portion of the 
stock within its jurisdiction, which, as indicated above, is 
significantly below potential harvest levels if the fishery remains 
unregulated. These actions provided a clear directive, with specific 
ABC's, for the Mid-Atlantic Council to develop, consistent with the 
statutory requirements of the Magnuson-Stevens Act, a plan or plan 
amendment as envisaged by section 303 of the Act.
    Due to the need to resolve questions about Council jurisdiction and 
the timing of receiving the SSC's recommendations, it was not possible 
for the Council to have completed the amendment and submitted it for 
Secretarial approval before the current emergency expired due to 
procedural and public participation requirements of applicable law. 
Therefore, the likelihood of a gap between the expiration of the 
emergency rule and implementation of the amendment was unavoidable and 
not due to Council inaction or delay. There is no doubt that these 
interim measures would significantly address a serious conservation 
problem for the blueline tilefish stock. Absent these interim measures, 
portions of the mid-Atlantic range of this stock will remain 
unregulated which could lead to substantial increases in fishing 
mortality and overfishing. Finally, the immediate benefits to the 
blueline tilefish resource outweigh the value of advance notice and 
public comment, particularly because this action continues the same 
measures already in place under the 2015 emergency rule which received 
public comments after it was published.
    In addition to these interim measures independently meeting the 
emergency rule guidelines, NMFS also finds that back-to-back 305(c) 
rules is justified because he fishery was, and absent another Federal 
action will become again, unregulated in Federal waters. This is a very 
different situation than a fishery already under management by a 
Fishery Management Council and therefore presents a more exigent need 
for interim management. Although the blueline tilefish has not formally 
been declared to be subject to overfishing due to current lack of 
sufficient data, the need for this interim rule is consistent with the 
Magnuson-Stevens Act recognition in section 304(e) that such interim 
rules may be necessary while a council develops an amendment to address 
overfishing. Moreover, the 180-day period provided by these temporary 
interim measures should be sufficient to put in place permanent 
management measures. The Mid-Atlantic Council took final action in 
April 2016 and is expected to complete the necessary analyses and 
documentation for submission to the Secretary in the coming months. In 
turn, NMFS will then review and conduct notice-and-comment rulemaking 
on the Council's recommendations this fall/early winter. Because of 
this, NMFS is not inclined to extend the interim measures being 
implemented by this rule beyond 180 days even if subsequent delays 
occur within the Council's documentation development or within the 
Agency's review and rulemaking processes.

[[Page 39594]]

Classification

    Based on reasons and findings cited above, NMFS has determined that 
this section 305(c) interim rule, following a section 305(c) emergency 
rule, is necessary and justified given the unusual and exigent 
circumstances surrounding the need to prevent an unregulated fishery 
and the likelihood of overfishing of blueline tilefish on a short-term 
basis. NMFS reviewed the requirements in section 305(c) of the 
Magnuson-Stevens Act and NMFS policy guidance for the use of emergency 
rules (62 FR 44421, August 21, 1997) and determined that this action, 
which is a type of emergency rule under section 305(c), is consistent 
with both the criteria and justifications for use of emergency measures 
in the Magnuson-Stevens Act.
    Pursuant to section 553(b)(B) of the Administrative Procedure Act, 
the Assistant Administrator (AA) for Fisheries, NOAA, finds that it 
would be impracticable and contrary to the public interest to provide 
for prior notice and opportunity for public comment. The current 
emergency measures expired on June 3, 2016, and the blueline tilefish 
fishery will return to an unregulated condition in Federal waters. Due 
to the uncertainty surrounding the timing of when the Mid-Atlantic 
Council would complete and submit to NOAA amendment to the Golden 
Tilefish FMP, it was not possible to prepare and publish a proposed 
rule to continue the current measures restricting landings of blueline 
tilefish. Based on the landings information from fishing activity in 
2014, there is the potential for unregulated catch and landings to 
increase rapidly if these measures are not continued. Because there is 
a clear need to maintain measures to constrain fishing mortality on the 
stock in the Greater Atlantic Region and potentially prevent 
overfishing, it would be potentially harmful to the long-term 
sustainability of the resource to further delay implementation of these 
measures through notice-and-comment rulemaking. Moreover, the benefit 
of allowing prior public comment on this rule has been addressed 
because NMFS has already received public comment on these very same 
measures after the implementation of the 2015 emergency. These comments 
were taken into account in implementing this interim rule. Therefore, 
the public interest is best served by waiving the need for additional 
prior public comment in order to avoid the potential for long-term harm 
to the blueline tilefish stock. Public comments will be accepted on 
this temporary rule through July 18, 2016, and there will be 
opportunities for public participation and notice-and-comment 
rulemaking as we work to implement new management measures already 
developed and approved by the Mid-Atlantic Council.
    Additionally, the Assistant Administrator for Fisheries, NOAA, 
finds good cause to waive the requirement for a 30-day delay in 
effectiveness pursuant to section 553(d)(3) of the Administrative 
Procedure Act. For the reasons described above, delaying the 
effectiveness of these regulations could undermine the purpose of this 
temporary rule, to maintain measures to reduce catch during the 2016 
fishing year as a stop-gap measure while new management measures 
developed by the Council are implemented to ensure the long-term 
sustainable harvest of blueline tilefish.
    This action is being taken pursuant to the emergency provision of 
MSA and is exempt from OMB review.
    This temporary rule is exempt from the otherwise applicable 
requirement of the Regulatory Flexibility Act to prepare a regulatory 
flexibility analysis because the rule is issued without opportunity for 
prior public comment.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: June 13, 2016.
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 648.2, add a definition for ``Blueline tilefish'' in alphabetical 
order to read as follows:


Sec.  648.2  Definitions.

* * * * *
    Blueline tilefish means Caulolatilus microps.
* * * * *

0
3. In Sec.  648.4, add paragraph (a)(12)(ii) to read as follows:


Sec.  648.4  Vessel permits.

    (a) * * *
    (12) * * *
    (ii) Blueline tilefish vessels--(A) Commercial. Any vessel of the 
United States must have been issued and have on board a valid Federal 
commercial tilefish permit to fish for, catch, possess, transport, 
land, sell, trade, or barter, any blueline tilefish in excess of the 
recreational possession limit as specified under Sec.  648.298(c) from 
the EEZ portion of the area defined at Sec.  648.298(a).
    (B) Party and charter vessel permits. Any party or charter vessel 
must have been issued, under this part, a Federal charter/party 
tilefish vessel permit to fish for blueline tilefish in the EEZ portion 
of the area defined at Sec.  648.298(a), if it carries passengers for 
hire. Any person onboard such a vessel must observe the recreational 
possession limit as specified at Sec.  648.298(c) and the prohibition 
on sale in Sec.  648.14(w)(1)(ii).
* * * * *

0
4. In Sec.  648.5, add paragraph (a)(1) and reserve paragraph (a)(2) to 
read as follows:


Sec.  648.5  Operator permits.

* * * * *
    (a) * * *
    (1) The operator permit provisions outlined in Sec.  648.5(a) 
pertaining to operator permit requirements also apply to the operator 
of any vessel fishing for or possessing blueline tilefish harvested in 
or from the EEZ portion of the area defined at Sec.  648.298(a).
    (2) [Reserved]

0
5. In Sec.  648.14, add paragraph (w) to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (w) Blueline tilefish. It is unlawful for any person owning or 
operating a vessel to do any of the following:
    (1) Permit requirements--(i) Operator permit. Operate a vessel with 
a tilefish permit to fish for or possess blueline tilefish in or from 
the EEZ portion of the area defined at Sec.  648.298(a), unless the 
operator has been issued, and is in possession of, a valid operator 
permit.
    (ii) Vessel permit. Fish for, catch, possess, transport, land, 
sell, trade, or barter any blueline tilefish for a commercial purpose, 
other than solely for transport on land, unless the vessel has been 
issued a tilefish permit, or unless the blueline tilefish were 
harvested by a vessel without a tilefish permit that fished exclusively 
in State waters.
    (2) Possession and landing. (i) Fish for, possess, retain, or land 
blueline tilefish, unless:
    (A) The blueline tilefish are being fished for or were harvested in 
or from the EEZ portion of the area defined at

[[Page 39595]]

Sec.  648.298(a) by a vessel holding a valid tilefish permit under this 
part, and the operator on board such vessel has been issued an operator 
permit that is on board the vessel.
    (B) The blueline tilefish were harvested by a vessel that has not 
been issued a tilefish permit and that was fishing exclusively in State 
waters.
    (C) The blueline tilefish are being fished for or were harvested in 
or from the EEZ portion of the area defined at Sec.  648.298(a) in 
accordance with the possession limits specified at Sec.  648.298(b) or 
(c).
    (ii) [Reserved]
    (3) Fish for or possess blueline tilefish inside and outside of the 
EEZ portion of the area defined at Sec.  648.298(a) on the same trip.
    (4) Transfer and purchase. (i) Purchase, possess, or receive for a 
commercial purpose, other than solely for transport on land; or attempt 
to purchase, possess, or receive for a commercial purpose, other than 
solely for transport on land; blueline tilefish caught by a vessel 
without a tilefish permit, unless the blueline tilefish were harvested 
by a vessel without a tilefish permit that fished exclusively in State 
waters.
    (ii) [Reserved]
    (5) Presumption. For purposes of this part, the following 
presumption applies: All blueline tilefish retained or possessed on a 
vessel issued any permit under Sec.  648.4 are deemed to have been 
harvested in or from the EEZ portion of the area defined at Sec.  
648.298(a), unless the preponderance of all submitted evidence 
demonstrates that such tilefish were harvested by a vessel fishing 
exclusively in State waters.

0
6. Add Sec.  648.298 to read as follows:


Sec.  648.298  Blueline tilefish management measures.

    (a) Management unit. The regulations in this paragraph apply to 
vessels or operators of vessels fishing for blueline tilefish in the 
area of the Atlantic Ocean from the latitude of the VA and NC border 
(36[deg]33'01.0'' N. Lat.), extending eastward from the shore to the 
outer boundary of the EEZ and northward to the United States-Canada 
border.
    (b) Commercial possession limit. A vessel or operator of a vessel 
that has been issued a valid Federal commercial tilefish permit under 
this part may fish for, possess, and/or land up to 300 lb (136 kg) 
whole weight of blueline tilefish per trip from the area defined in 
this section.
    (c) Recreational possession limit. Any person fishing on a vessel 
who is not fishing under a commercial tilefish vessel permit issued 
pursuant to Sec.  648.4(a)(12), may land up to seven blueline tilefish 
per trip from the area defined in this section.

[FR Doc. 2016-14349 Filed 6-14-16; 4:15 pm]
 BILLING CODE 3510-22-P