[Federal Register Volume 83, Number 39 (Tuesday, February 27, 2018)]
[Rules and Regulations]
[Pages 8362-8365]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-03899]


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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; Extension of 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 extended.

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SUMMARY: This rule extends the emergency action to remove the 2017 
southern windowpane flounder accountability measures (AM) for non-
groundfish trawl vessels. The rule is necessary because the emergency 
measures would otherwise expire before the end of the 2017 fishing 
year. 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 March 1, 2018, through April 30, 2018.

ADDRESSES: Copies of recent related actions, including Framework 52, 
55, and Framework 56, the Environmental Assessments (EA), and their 
Regulatory Impact Review, and the Final Regulatory Flexibility Act 
analysis prepared by the New England Fishery Management Council and 
NMFS are available from Michael Pentony, Regional Administrator, NMFS 
Greater Atlantic Regional Office, 55 Great Republic Drive, Gloucester, 
MA 01930. The documents are also accessible via the internet at: 
https://www.nefmc.org/management-plans/northeast-multispecies.

FOR FURTHER INFORMATION CONTACT: Sarah Heil, Senior Fishery Policy 
Analyst, phone: 978-281-9257.

SUPPLEMENTARY INFORMATION: On September 1, 2017, we implemented 
emergency measures to remove the southern windowpane flounder AMs for 
non-groundfish trawl vessels (82 FR 41564). These emergency measures 
expire on February 28, 2018. The emergency rule published on September 
1, 2017, included detailed information on the background, reasons, and 
justification for the emergency measures, and this information is not 
repeated here.
    The Magnuson-Stevens Fishery Conservation and Management Act 
(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 certain criteria are met. An extension is 
allowed if the public has had an opportunity to comment on the 
emergency regulation, and in the case of a Council recommendation for 
an emergency action, the Council is actively developing a change to the 
Fishery Management Plan (FMP) or regulations to address the emergency 
on a permanent basis. We accepted public comment on the emergency 
measures, and received one comment in support of the action. 
Additionally, the New England Fishery Management Council developed 
changes in Framework Adjustment 57 to the Northeast Multispecies 
(Groundfish) FMP to permanently address the emergency. Framework 57 is 
intended to be implemented for the 2018 fishing year beginning on May 
1, 2018. As discussed in more detail below, we determined the necessary 
criteria to extend the emergency measures have been met. Therefore, 
this temporary rule removes the southern windowpane flounder AMs for 
non-groundfish trawl vessels for the remainder of the 2017 fishing year 
through April 30, 2018.

[[Page 8363]]

Background

    On August 1, 2017, we implemented AMs because the 2015 total annual 
catch limit (ACL) for southern windowpane flounder was exceeded (82 FR 
35660). Due to data availability, we typically implement AMs for 
windowpane flounder at the start of the second fishing year after an 
overage. These AMs require trawl vessels fishing in certain Southern 
New England areas to use selective 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 5 
inch (12.7 centimeter) or greater codend mesh size, which includes 
vessels that target summer flounder, scup, black sea bass, and skates. 
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. These AMs are estimated to result in 
$2 million in lost revenue in catch of yellowtail flounder, winter 
flounder, summer flounder, and scup.
    In 2015, we implemented Framework Adjustment 52 to the Northeast 
Multispecies FMP to reduce the economic impacts of the windowpane 
flounder AMs for the groundfish fishery (80 FR 2021; January 15, 2015). 
At the time, the AMs had only been triggered 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 
implemented during the 2015 fishing year. Framework 52 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. For example, if we implement an AM in year 3 (2017) due to 
an overage in year 1 (2015), we can remove the AM in September if catch 
did not exceed the ACL in year 2 (2016).
    Total 2016 catch of southern windowpane flounder was 82 percent of 
the total ACL. As a result, under the Regional Administrator authority 
that Framework 52 established, we removed the AMs for the groundfish 
fishery on September 1, 2017 (82 FR 35676; August 1, 2017). However, 
because this authority is limited to the groundfish fishery only, the 
AMs for non-groundfish trawl vessels would have remained in place for 
the entire 2017 fishing year without additional action.
    As a result of the 2015 ACL overage, we implemented the AMs for 
non-groundfish trawl vessels for the first time in 2017. Neither we, 
nor the New England Council, considered or foresaw the possibility of 
removing the AMs inseason for groundfish vessels, but maintaining them 
for non-groundfish trawl vessels despite catch being below the ACL. 
This situation presented an issue of fairness and equity, particularly 
because catch by non-groundfish vessels was well below the sub-ACL for 
this fishery component. Maintaining the AMs for non-groundfish trawl 
vessels for the full fishing year would have substantial economic 
impacts without further contributing to the conservation goals of the 
AMs. For these reasons, and at the request of the New England and Mid-
Atlantic Councils, on September 1, 2017, we implemented an emergency 
rule to remove the 2017 southern windowpane flounder AMs for non-
groundfish trawl vessels (82 FR 41564). These emergency measures expire 
on February 28, 2018.

Extension of Emergency Measures

    If the emergency measures expire, the southern windowpane flounder 
AMs would be re-implemented for non-groundfish trawl vessels for the 
remainder of the 2017 fishing year. This would undermine the 
conservation and management goals of the September 1, 2017, emergency 
action. AMs are intended to correct operational issues that cause 
overages and mitigate biological consequences of overages. The 
fishery's 2016 catch was below the overall ACL, which is consistent 
with the fishery having corrected the operational issues that caused 
the 2015 overage. We expect 2017 catch to be similar to 2016 because of 
recent quota reductions for key flounder species that limit overall 
fishing effort on all flatfish stocks, including southern windowpane 
flounder. Additionally, the 2017 assessment update shows a stable and 
slightly increasing southern windowpane stock. This assessment 
information, along with 2016 catch, is consistent with the AM's goal of 
mitigating or addressing the effects of the overage. As a result, we 
determined that removing the AMs in September would not result in 
negative impacts for the stock. Thus, allowing the emergency measures 
to expire would result in unnecessary economic loss to non-groundfish 
trawl vessels.
    Additionally, as noted earlier in this preamble, emergency action 
was justified because new information presented an issue of fairness 
and equity that we, nor the Council, previously contemplated. At the 
time of the emergency action, the New England Council was developing 
Framework Adjustment 57 to the Northeast Multispecies FMP, in part to 
address the issue of southern windowpane flounder AM impacts on non-
groundfish trawls that arose during 2017. In this action, the New 
England Council recommended giving the Regional Administrator authority 
to remove the AMs inseason for non-groundfish vessels. The New England 
Council also recommended revising the southern windowpane flounder AM 
areas. These measures are intended to provide non-groundfish trawl 
vessels additional flexibility while continuing to reduce impacts on 
southern windowpane flounder. Framework 57 is intended to be 
implemented for the 2018 fishing year. The New England Council took 
final action on Framework 57 in December 2017, and has submitted the 
action to us for review. Framework 57 could not be developed and 
implemented in time to address this issue for the 2017 fishing year. 
Extending the emergency measures for the remainder of this fishing year 
will prevent disruption to non-groundfish trawl vessels while we 
consider the New England Council's recommended permanent changes.

Emergency Measures

    This emergency action extends the Regional Administrator authority 
to remove the southern windowpane flounder AM inseason for non-
groundfish trawl vessels if we determine that catch is below the ACL in 
the year immediately following an overage. Effective March 1, 2018, 
this action removes the southern windowpane flounder AMs for non-
groundfish trawl vessels fishing with 5 inches (12.7 centimeter) or 
greater codend mesh size. These emergency measures are effective 
through April 30, 2018. There will be no southern windowpane flounder 
AM in effect beginning on May 1, 2018, because the 2016 ACL was not 
exceeded and current 2017 catch information does not suggest an ACL 
overage will occur. Non-groundfish trawl vessels may fish inside the 
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.

[[Page 8364]]

[GRAPHIC] [TIFF OMITTED] TR27FE18.001

Comments and Responses

    We received one comment during the comment period on the emergency 
rule.
    Comment 1: Lund's Fisheries, Inc. commented in support of the 
emergency measures, and agreed that maintaining the AMs for non-
groundfish trawl vessels would have presented fairness and equity 
issues, as well as serious economic impacts, without contributing to 
conservation goals of the AMs.
    Response: We agree. For all of the reasons described in detail in 
the initial emergency rule, as well as those reasons in the preamble 
above, allowing the emergency measures to expire before the end of the 
fishing year would undermine the goals of the emergency action. As a 
result, this rule extends the emergency measures for the remainder of 
the 2017 fishing year to prevent disruption to Mid-Atlantic trawl 
vessels in the middle of the fishing year, maintain fairness and 
equity, and continue to mitigate the negative economic impacts on these 
vessels that the AMs would otherwise impose.

Classification

    The NMFS Assistant Administrator has determined that this extension 
to the 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 and would prevent the positive benefits 
this rule is intended to provide. Additionally, because this rule 
relieves a restriction and removes the southern windowpane flounder AM 
areas for non-groundfish trawl vessels, it is not subject to the 30-day 
delayed effectiveness provision of the APA under 5 U.S.C. 553(d)(1).
    Without additional action, the emergency measures implemented on 
September 1, 2017, to remove the AMs for non-groundfish vessels would 
expire before the end of the 2017 fishing year. Implementing the AMs 
only for non-groundfish trawl vessels would present fairness and equity 
issues. The AMs would also have substantial economic impacts without 
contributing further to the conservation goals of the AMs. The AM areas 
eliminate access to target species that vessels are unlikely to recoup 
even if they move to fish in other areas. Thus, extending the emergency 
measures to remove the AMs for the remainder of the 2017 fishing year 
continues to mitigate serious economic harm to affected vessels until 
permanent measures can be implemented. There are less than 3 months 
remaining in the 2017 fishing year. The time necessary to provide prior 
notice and an opportunity for public comment would allow the emergency 
measures to expire, and prevent this action from being implemented 
before the end of the fishing year.
    Additionally, the original emergency rule provided for public 
comment on the emergency measures. The Council also addressed this 
issue in Framework 57 to the Northeast Multispecies FMP, which is 
scheduled for implementation for the 2018 fishing year beginning on May 
1, 2018. During the development of Framework 57, there was extensive 
public comment on potential changes to the windowpane flounder AMs. 
Thus, prior notice and opportunity for public comment for this rule 
would not provide added benefit that would outweigh the need to avoid 
unnecessary economic harm on non-groundfish trawl vessels fishing in 
Southern New England.
    This action is being taken pursuant to the emergency provision of 
the Magnuson-Stevens Act and is exempt from Office of Management and 
Budget review.
    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.


[[Page 8365]]


    Dated: February 21, 2018.
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 March 
1, 2018, through April 30, 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 March 1, 2018, 
through April 30, 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. 2018-03899 Filed 2-26-18; 8:45 am]
BILLING CODE 3510-22-P