Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Disapproval of Northeast Fishery Sector IX Operational Plan, 55522-55526 [2017-25299]
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Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Rules and Regulations
December time period, rather than the
fishery automatically re-opening on
December 1. The delay would preclude
the fishery from harvesting BFT that are
available on the fishing grounds and
that might otherwise become
unavailable during a delay. Therefore,
the AA finds good cause under 5 U.S.C.
553(b)(B) to waive prior notice and the
opportunity for public comment. For
these reasons, there also is good cause
under 5 U.S.C. 553(d) to waive the 30day delay in effectiveness.
This action is being taken under
§ 635.27(a)(9) (Inseason adjustments)
and is exempt from review under
Executive Order 12866.
Authority: 16 U.S.C. 971 et seq. and 1801
et seq.
Dated: November 16, 2017.
Emily H. Menashes,
Acting Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 2017–25202 Filed 11–21–17; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 170104016–7999–03]
RIN 0648–XF138
Magnuson-Stevens Act Provisions;
Fisheries of the Northeastern United
States; Northeast Multispecies
Fishery; Disapproval of Northeast
Fishery Sector IX Operational Plan
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Interim final rule.
AGENCY:
This rule withdraws approval
of the 2017 and 2018 Northeast Fishery
Sector IX operations plan. The Regional
Administrator determined that the
sector and its participants are not
complying with the requirements of the
approved operations plan, and that the
continuation of the operations plan will
undermine achievement of conservation
and management objectives of the
Northeast Multispecies Fishery
Management Plan. This rule is intended
to ensure that sector operations are
consistent with approved plans for
accurately monitoring and reporting
sector catch to ensure that overages of
a sector’s allocation do not occur.
DATES: Approval of the Northeast
Fishery Sector IX Operations Plan for
Fishing Years 2017 and 2018 (May 1,
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SUMMARY:
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2017, through April 30, 2019) is
withdrawn, effective November 20,
2017. Written comments must be
received on or before December 20,
2017.
ADDRESSES: You may submit comments
on this document, identified by NOAA–
NMFS–2017–0016, by either of the
following methods:
• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-20170016, 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 Interim Final Rule to Withdraw
Approval of NEFS 9.’’
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: Liz
Sullivan, Fishery Policy Analyst, (978)
282–8493.
SUPPLEMENTARY INFORMATION:
Background
To help achieve the fishing mortality
and conservation objectives of the
Fishery Management Plan (FMP), each
sector is allocated annual catch
entitlements (ACE) and must ensure that
these ACEs are not exceeded. The
Regional Administrator must approve
sector operations plans in order for
sectors to operate and be allocated ACE
for specific groundfish stocks. A sector’s
operations plan includes a detailed plan
for monitoring and reporting catch and
the specific management rules sector
participants will abide by in order to
avoid exceeding the sector’s allocation,
as well as a plan for how the sector will
operate if an ACE is exceeded. The
operations plan also includes internal
sector enforcement measures for
operation plan breaches and remedies,
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such as a penalty schedule for noncompliance with the operations plan or
other actions that would jeopardize the
sector’s continued approval. Penalties
under the plan range from a written
warning or fine to expulsion from the
sector.
The Regional Administrator may
withdraw approval of a sector, after
consultation with the New England
Fishery Management Council, at any
time as authorized in 50 CFR
648.87(c)(3). Withdrawal may occur if
sector participants are not complying
with the requirements of the approved
operations plan or if the continuation of
the operations plan will undermine
achievement of fishing mortality
objectives of the Northeast Multispecies
FMP.
On March 30, 2017, Carlos Rafael
pleaded guilty to all counts in United
States v. Carlos Rafael (No. 16–
CR10124–WGY). Mr. Rafael is the owner
of Carlos Seafood (a Federally permitted
dealer) and a fleet of Federally
permitted groundfish vessels that are
enrolled in NEFS 9. Mr. Rafael admitted
to falsely reporting catch information
(species and weight) for 13 of his vessels
on dealer catch reports and vessel trip
reports from 2012 through 2015. These
13 vessels operated under the sector
operations plan for NEFS 9 during the
period of known misreporting, and are
currently enrolled in the sector for
fishing year 2017. Sentencing for these
violations occurred on September 25,
2017. Mr. Rafael was sentenced to serve
46 months in prison and 3 years of
supervised release, and during
supervised release, he is banned from
working in the fishing industry. The
Court also ordered Mr. Rafael to pay a
fine of $200,000 and restitution to the
U.S. Treasury of $108,929. On October
11, 2017, the U.S. District Court Judge
in the criminal case ordered the
forfeiture of Mr. Rafael’s interests in 4
of the 13 vessels involved in the
criminal case, as well as the permits
issued to those vessels.
On April 28, 2017, we published an
interim final rule approving 19 sectors
and their operations plans, including
NEFS 9, for fishing years 2017 and 2018
(82 FR 19618). At the time, although Mr.
Rafael had pleaded guilty, the criminal
case was not complete and sentencing
for the violations had not occurred. We
provisionally approved the NEFS 9
operations plan for fishing years 2017
and 2018, and allocated ACE to the
sector for 2017, pending Mr. Rafael’s
sentencing to allow for our
consideration of any additional
information regarding NEFS 9
operations. In the interim final rule, we
noted that we intended to take
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additional action, which may include
consideration of the continued approval
of the sector or additional management
and monitoring requirements.
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NEFS 9 Composition
For fishing year 2017, there are 60
groundfish permits enrolled in NEFS 9,
and Mr. Rafael is a major participant in
the sector. All of Mr. Rafael’s groundfish
permits are enrolled in NEFS 9, and he
does not have any other vessels enrolled
in another sector. According to the
current operations plan, 22 of the
permits enrolled in NEFS 9 were
expected to actively fish for groundfish.
Of the remaining 38 permits in the
sector, 18 are in Confirmation of Permit
History (i.e. the permits are not on a
vessel, but quota from these permits is
available for use by sector vessels or to
lease out to other sectors). The other
permits in the sector are either active
participants in other fisheries, or are
completely inactive; all of these could
begin to fish for groundfish, if granted
permission by the sector, without a
change to the operations plan.
Since fishing year 2011, NEFS 9
employed Mr. Rafael’s daughter,
Stephanie Rafael-DeMello as the Sector
Manager. Prior to May 30, 2017, Mr.
Rafael was the President of NEFS 9 and
held a position on the Board of
Directors. On May 30, 2017, the sector
notified us that it had removed Mr.
Rafael from the position of President, as
well as from the Board of Directors. A
new Board of Directors was identified,
including the Board’s elected officials,
with only one individual in common
with the Board from previous years.
NEFS 9 Operations Plan Breaches
Beyond the requirements described
above to monitor and report catch, the
NEFS 9 operations plan specifies that
upon the Sector Manager becoming
aware of an ‘‘apparent breach’’ in a
member’s compliance, the Manager will
investigate. The Manager is also
authorized to refer the matter to the
sector’s Enforcement Committee and
take other actions as necessary,
including potentially issuing a ‘‘Stop
Fishing Order.’’ The Manager is
required to submit a weekly Trip Issue
Report to inform us of any enforcement,
or reporting compliance issues in the
sector.
Since Mr. Rafael’s guilty plea in
March 2017, we received a letter on May
30, 2017, from the newly elected
president of NEFS 9 concerning matters
related to Mr. Rafael’s criminal acts. The
letter outlined changes to the sector’s
Board of Directors, as described above,
which is also included in the NEFS 9
operations plan. In the letter, the
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president stated that the Board notified
all sector members that NEFS 9 vessels
are prohibited from using Carlos
Seafood, Inc. as the primary buyer and
reporting dealer for any landings. The
letter also indicated that the newly
constituted Enforcement Committee
intended to meet to further discuss Mr.
Rafael’s criminal violations.
On October 5, 2017, representatives of
the sector requested a meeting with us
to discuss the sector, and we met with
the NEFS 9 Board of Directors, the
Sector Manager, and representatives
from the Northeast Seafood Coalition
and the Northeast Sector Service
Network (NESSN) on October 26, 2017.
From that discussion, we learned that
the Board of Directors, including those
on the sector’s newly formed
Enforcement Committee, had met
monthly since forming in May 2017.
However, the Board of Directors
indicated that no additional changes
have been made to the operations of the
sector beyond what was described in the
May 30, 2017, letter. Similarly, the
sector’s annual Year-End Report for
Fishing Year 2016, submitted on
October 27, 2017, made reference to the
steps laid out in the May 30 letter, but
gave no indication that further steps had
been taken. We have not received any
other information from the sector.
While the steps taken that are
identified in the May 30 letter are
potentially positive measures, they are
insufficient. The sector has not provided
sufficient background information about
the new Board members that would
help us assess their independence or
ability to govern the sector differently to
ensure compliance. NEFS 9 has not
provided us with any information, via
the Trip Issue Report or other means,
regarding any investigation by the sector
to determine if any of its members or
vessel operators breached the operations
plan agreement. Nor has there been any
indication that the Board, Enforcement
Committee, or Manager have taken any
sector operations plan measures to
address any breach such as imposing or
putting in place any liquidated
damages, fine, stop fishing order,
expulsion, or a requirement to post a
security bond, which are potential
actions included in NEFS 9’s operations
plan. There has been no indication of
whether any measures have been put in
place to ensure compliance by any
vessel operators who may have assisted
in the misreporting. Additionally, the
sector has not provided to us any
accounting of any of the potential ACE
overages or misallocations. Although
the new Board does provide a more
independent group to which the
Manager is required to report potential
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violations, it is not clear if the sector
personnel changes fully address the
Manager’s responsibility for the sector’s
reporting requirements, ACE
monitoring, and monitoring sector
members’ compliance with the
operations plan. Last, there have been
no substantial changes in the NEFS 9
operations plan for fishing years 2017
and 2018 to prevent further
misreporting by any of its members or
vessel operators; however, we recognize
that the Board prohibited NEFS 9
vessels from using Carlos Seafood as the
primary buyer and reporting dealer for
any landings.
NEFS 9 ACE Overages
If a sector exceeds its ACE in any
fishing year, the regulations require that
the overage be deducted from the
sector’s ACE in the following fishing
year. Based on publically available
information from the criminal case,
NEFS 9 likely exceeded its ACE for
multiple groundfish stocks in multiple
years potentially beginning in the 2012
fishing year. Because Mr. Rafael
operated as both the dealer and vessel
owner with no independent oversight,
he was able to coordinate the
misreporting, allowing these potential
overages to go undetected until now.
The repeated ACE overages we are now
aware of indicate that the initial
allocations made to the sector at the
start of the 2017 fishing year and likely
other fishing years were artificially high.
As a result, the sector’s catch to date
may already exceed what would have
been an accurate allocation for this
fishing year.
Based on initial analysis of the
misreported catch for American plaice
and witch flounder, the magnitude of
some of the ACE overages could be
extensive. The misreported catch
information for cod and yellowtail
flounder is at a species level, and
additional analysis is required to
apportion this catch by stock area. We
intend to complete this analysis as soon
as possible to determine the full extent
of any overages for cod and yellowtail
flounder stocks. Any accountability
measures, such as assessing and
deducting ACE overages incurred by the
sector, would be determined in a future
action. Other than the public
information we have access to from Mr.
Rafael’s plea agreement, NEFS 9 has not
provided any information about the
nature and scope of misreporting that
would help us to accurately administer
its ACEs.
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Disapproval of NEFS 9 Sector
Operations Plan
The Council discussed Mr. Rafael’s
violations and the conditional approval
of NEFS 9 at both its June and
September 2017 meetings and was
encouraged to comment on this issue.
On September 29, 2017, we received a
letter from the Council requesting that
we immediately implement the sector
regulations and the NEFS 9 operations
plan.
Based on our review, NEFS 9 has
failed to uphold sector operations plan
requirements to a degree and extent that
undermines foundational principles
necessary for successful sector
operations. Further, the sector’s
corrective measures to date are
insufficient. We need more information
and further measures are necessary to
ensure that the sector operates in a
manner that does not undermine the
sector program.
Accurate reporting, internal
accountability, and organizational
integrity are core principles of the sector
system. The systematic sector and vessel
misreporting over a long period of time
was facilitated by an internal structure
and control by a single, dominant
participant combined with a lack of
oversight. The weakness and
vulnerability of this sector’s structure
was underscored by NEFS 9’s lack of an
adequate response once the scope and
nature of these violations were revealed.
To date, there appears to be persistent
non-compliance with fundamental
operations plan requirements along with
a significantly compromised structure
and lack of NEFS 9 oversight. NEFS 9’s
failures to manage its operations
effectively appear to have led to
repeated ACE overages, some of which
may be extensive. These overages may
be continuing this fishing year, which
threatens to continue undermining the
sector system and its fishing mortality
and conservation controls.
Without further information or
revisions to its operations plan, we are
not confident that the operations plan
contains measures that would provide
us with current accurate information or
ensure compliance with the operations
plan to prevent and address future
misreporting or ACE overages. The
sector has not provided us with
information of any action it has taken to
investigate its members’ compliance
with the sector operations plan or any
measures to address breaches of its plan.
The sector has not provided any
information to help us corroborate the
nature and scope of the false
information provided to us and its effect
on the sector’s ACEs. The sector has not
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provided us with any information about
the nature and scope of vessel operator
cooperation with the non-compliance,
or how the sector can be assured the
operators are acting in compliance with
the operations plan now. The sector has
made no new proposals about any new
compliance measures or provided any
information about actions taken by their
new Enforcement Committee.
NEFS 9 has failed its primary
responsibility of accurately reporting
and tracking its catch and has taken
only minimal, insufficient steps to
ensure accurate reporting and
compliance with its operations plan.
This includes addressing the fraudulent
catch within the sector over multiple
years and for multiple stocks to ensure
the sector has proper ACE allocations,
which may require deducting ACE
overages the sector has incurred. As a
result, continuation of the sector
operations plan will undermine
achievement of fishing mortality and
management objectives of the Northeast
Multispecies FMP. Therefore, we are
withdrawing approval of the NEFS 9
sector operations plan until a complete
and successful accounting of what
happened is provided and steps are
taken to ensure the sector will operate
within its operations plan. We intend to
work with NEFS 9 to address their
operations plan issues, which we expect
will take considerable time and will
require additional correspondence and
meetings after publication of this rule.
Timing of Withdrawing Approval and
Approval
Effective November 20, 2017,
approval of the NEFS 9 operation plan
is withdrawn. The sector ACE remains
allocated to NEFS 9, and this action
does not reallocate the ACE to other
sectors or to the common pool. Without
an approved operations plan, NEFS 9 is
prohibited from transferring ACE to or
from other sectors. Vessels that were
enrolled in NEFS 9 during this fishing
year are prohibited from: (1) Fishing on
a sector trip and harvesting sector ACE;
(2) fishing on a common pool trip; or (3)
joining another sector. If a vessel
enrolled in NEFS 9 has declared a sector
trip, and is at sea on November 20,
2017, it must return to port
immediately; the vessel is permitted to
offload its catch for sale. Also, we will
work with individual vessels that had
previously set gillnet gear, to haul the
gear as soon as practicable. Vessels that
are able to fish under other permits,
without declaring a sector trip or using
a multispecies day-at-sea, can continue
to do so.
If NEFS 9 submits a new operations
plan, we would attempt to conduct a
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review and complete a rulemaking as
expeditiously as practicable. Before we
could approve a new operations plan for
NEFS 9, the sector must provide us with
critical information about steps taken to
comply with operations plan
requirements and ensure steps are taken
to address the organizational and
operational issues that facilitated the
false reporting. Vessels currently
enrolled in NEFS 9 may opt to
participate in the common pool or
enroll in a different sector for the 2018
fishing year, as sector rosters are set
annually.
Comments and Responses
We are accepting comments on this
interim final rule. In response to the
previous interim final rule approving 19
sectors (April 28, 2017; 82 FR 19618),
we received eight comments relating to
the provisional approval of NEFS 9 for
the 2017 and 2018 fishing years. The
comments came from Associated
Fisheries of Maine (AFM), NEFS 9,
NESSN, Portland Fish Exchange (PFEX),
Sustainable Harvest Sector (SHS), two
industry members, and one anonymous
commenter.
Provisional Approval of NEFS 9
Operations Plan
Comment 1: NESSN commented that
NMFS approval of NEFS 9 was
appropriate at that time given the
ongoing legal proceedings against a
sector member and not the sector itself.
Other comments from AFM, PFEX,
SHS, two industry members, and one
anonymous commenter disagreed,
stating that NEFS 9’s operations plan
should not have been approved for
Fishing Years 2017 and 2018 given the
admitted crimes of NEFS 9 sector
member, Mr. Rafael. Several of these
commenters elaborated on measures
included in the sector operations plan
that the sector may not have complied
with or enforced after it learned of Mr.
Rafael’s actions, and that the sector
should be held accountable to the
actions outlined in their plan. Some also
stated that NMFS’ actions were
inadequate in this case and that 100
percent monitoring for NEFS 9 may be
appropriate.
Response: We agree that, at the time,
provisional approval of the NEFS 9
operations plan was appropriate given
that sentencing for the criminal
violations was not complete and may
have provided additional information.
In the interim final rule, we noted that
once sentencing is complete, we would
consider all of the available information
to determine whether any management
action is necessary, including additional
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management measures or withdrawal of
NEFS 9 approval.
Based on all of the available
information, and now that sentencing is
complete, we have determined that
NEFS 9 failed and continues to fail to
uphold the requirements of its
operations plan. This non-compliance
likely contributed to extensive overages
of the sector’s allocation for multiple
groundfish stocks in multiple fishing
years. The degree and extent of NEFS
9’s failure to uphold its operations plan
requirements undermines the
foundational principles necessary for
successful sector operations. As a result,
we determined that NEFS 9 cannot
continue to operate until and unless we
receive sufficient information
concerning the scope and nature of the
operations plan breaches, actions taken
by the sector in response to the breaches
in accordance with operations plan
requirements, and actions that will
ensure the sector currently is operating
in compliance with its operations plan
and within its ACEs. This includes
addressing the fraudulent catch within
the sector over multiple years and for
multiple stocks to ensure the sector has
proper ACE allocations, which may
require deducting ACE overages the
sector has incurred. We intend to work
with NEFS 9 to address its operations
plan issues and will determine the
measures necessary for ensuring that the
sector’s operations are appropriate and
sufficient for accurately monitoring and
reporting sector catch.
Accurate reporting, accountability,
and organizational integrity are core
principles of the sector system. In this
case, NEFS 9 failed its primary
responsibilities. Systematic
misreporting over multiple fishing
years, a failure to abide by, and enforce,
sector operations plan requirements,
and the internal structure of NEFS 9
were all contributing factors to the
persistent non-compliance of NEFS 9
operations plan requirements and likely
to extensive ACE overages. Because
NEFS 9 has not sufficiently addressed
all of these contributing factors, its
continued approval under the current
operations plan is likely not adequate to
prevent and address continued, or
future, misreporting, or non-compliance
by any of its members, and would
undermine the conservation and
management objectives of the Northeast
Multispecies FMP.
Forfeiture of Permits Held by Carlos
Rafael
Comment 2: AFM, PFEX, and two
members of the industry stated that Mr.
Rafael should no longer be allowed to
participate in the groundfish fishery and
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that all his permits should be
relinquished.
Response: As discussed earlier in this
rule, Mr. Rafael was sentenced to 46
months of prison, 3 years of supervised
release, assessed a $200,000 fine, and
required to pay $108,929 restitution. On
October 11, 2017, the U.S. District Court
also ordered the forfeiture of Mr.
Rafael’s interest in four of 13 vessels
involved in the criminal case. There
may be management implications from
this forfeiture that may need to be
included in the NEFS 9 operations plan.
We intend to discuss potential
implications, if any, with NEFS 9.
This is not an enforcement action, and
does not impose civil penalties, permit
sanctions, or forfeitures. Any civil
penalties or permit sanctions may be
imposed only after adequate notice and
an opportunity for a hearing before an
administrative law judge in accordance
with NOAA’s civil procedure
regulations. This rule withdrawing
approval of the NEFS 9 operations plan
is administrative in nature, and
addresses the sector requirements of the
FMP and the sector’s operations plan. If
NEFS 9 continues to operate under its
current operations plan with only the
minimal changes it has proposed, it will
undermine conservation and
management objectives of the FMP.
This disapproval of the current NEFS
9 operations plan in this action relates
only to the sector operations plan and
the sector’s ability to operate without
undermining the sector system. Without
an approved operations plan, all of the
vessels currently enrolled in NEFS 9
will be unable to operate in the
groundfish fishery for the remainder of
the 2017 fishing year. Unless there is an
additional enforcement action that
affects the vessels’ permits, the sector
vessels may continue to operate in
accordance with their non-groundfish
permits. For the 2018 fishing year, these
vessels could opt to fish in the common
pool, or enroll in a sector with an
approved operations plan. If NEFS 9
submits, and we approve, a new
operations plan that addresses the
serious management concerns discussed
throughout this rule and that ensures
the sector could operate without
undermining the objectives of the
Northeast Multispecies FMP, the vessels
could re-enroll in NEFS 9.
Changes to NEFS 9 Operations
Comment 3: NEFS 9 submitted a letter
outlining the changes it made in
response to the pending criminal case.
NEFS 9 removed Mr. Rafael from its
Board of Directors and elected a new
Board, created a new Enforcement
Committee, and decided not to allow
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55525
sector members to sell catch to Carlos
Seafood, Inc. as a primary buyer.
Response: We acknowledge these
actions; however, they are insufficient
by themselves. There are numerous
issues that must be addressed as noted
in this rule that we have begun to
address with the sector. We expect to
continue to discuss these issues with
NEFS 9 during the approval process for
any new operations plan.
Classification
The NMFS Assistant Administrator
(AA) has determined that this interim
final rule is consistent with the
Northeast Multispecies FMP, other
provisions of the Magnuson-Stevens
Act, and other applicable law.
This interim final rule is exempt from
review under Executive Order 12866
because this action contains no
implementing regulations.
The interim final rule approving 19
sectors, including NEFS 9, provided an
opportunity for the public to comment
on the provisional approval of the NEFS
9 operations plan. The interim final rule
specified that we would consider
further action, including consideration
of further management or monitoring
requirements and continued approval of
the sector. Pursuant to 5 U.S.C.
553(b)(B), the AA finds that prior notice
and the opportunity for public comment
would be contrary to the public interest.
The purpose of this action is to
withdraw approval for a previously
approved and currently operating
sector. We have determined that NEFS
9 and its members are not complying
with the requirements of the operations
plan, and that the operations plan is not
sufficient to address the serious
management issues described earlier in
this preamble. The time it would take
for prior notice and opportunity for
public comment would allow the sector
to continue to operate under a failed
operations plan that is not consistent
with the management and conservation
objectives of the FMP. We need further
information to determine the full nature
and extent of any ACE overages and
how they will affect NEFS 9 operations.
The likely ACE overages that occurred,
possibly beginning in the 2012 fishing
year, suggest that the initial allocations
made to NEFS 9 at the start of this
fishery year may be artificially high. As
a result, the sector’s catch to date may
already exceed what would have been
an accurate allocation for this fishing
year. Allowing the sector to proceed
without an accurate accounting of
known misreporting will undermine
effective management of the sector
program and could further undermine
fishing mortality objectives of the FMP.
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Further, providing the participants in
the sector with advanced notice of the
disapproval by delaying the effective
date would create an incentive for sector
members to harvest or lease out as much
of the sector’s quota as possible, while
operating under an operations plan that
we have determined undermines the
objectives of the Northeast Multispecies
FMP.
Additionally, the AA finds there is
good cause under 5 U.S.C. 553(d)(3), to
waive the 30-day delay in effectiveness
so that the purpose of this rule is not
undermined. As stated above, the
purpose of this action is prevent a sector
from fishing under a sector operations
plan that has been determined to
undermine the objectives of the FMP,
and that may be fishing under
VerDate Sep<11>2014
16:22 Nov 21, 2017
Jkt 244001
allocations that are artificially high
considering the potential ACE overages
that have occurred since 2012. A delay
in the implementation of this rule
would allow the sector to continue to
operate under an operations plan that is
determined to have not adequately
ensured accurate reporting or
compliance, and that the sector has
failed to enforce. A delay in
implementation would also increase the
likelihood of additional ACE overages
for NEFS 9 since its initial allocations
for the 2017 fishing year does not
include any adjustments for previous
overages. As a result, continued
operation of the sector further
jeopardizes the objectives of the FMP
and increases the likelihood that
additional quota overages may occur.
PO 00000
Frm 00034
Fmt 4700
Sfmt 9990
This interim final 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 interim final 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.
Authority: 16 U.S.C. 1801 et seq.
Dated: November 17, 2017.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2017–25299 Filed 11–20–17; 8:45 am]
BILLING CODE 3510–22–P
E:\FR\FM\22NOR1.SGM
22NOR1
]]>Agencies
[Federal Register Volume 82, Number 224 (Wednesday, November 22, 2017)]
[Rules and Regulations]
[Pages 55522-55526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-25299]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 170104016-7999-03]
RIN 0648-XF138
Magnuson-Stevens Act Provisions; Fisheries of the Northeastern
United States; Northeast Multispecies Fishery; Disapproval of Northeast
Fishery Sector IX Operational Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Interim final rule.
-----------------------------------------------------------------------
SUMMARY: This rule withdraws approval of the 2017 and 2018 Northeast
Fishery Sector IX operations plan. The Regional Administrator
determined that the sector and its participants are not complying with
the requirements of the approved operations plan, and that the
continuation of the operations plan will undermine achievement of
conservation and management objectives of the Northeast Multispecies
Fishery Management Plan. This rule is intended to ensure that sector
operations are consistent with approved plans for accurately monitoring
and reporting sector catch to ensure that overages of a sector's
allocation do not occur.
DATES: Approval of the Northeast Fishery Sector IX Operations Plan for
Fishing Years 2017 and 2018 (May 1, 2017, through April 30, 2019) is
withdrawn, effective November 20, 2017. Written comments must be
received on or before December 20, 2017.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2017-0016, by either of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0016, 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 Interim Final Rule to Withdraw Approval of NEFS 9.''
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: Liz Sullivan, Fishery Policy Analyst,
(978) 282-8493.
SUPPLEMENTARY INFORMATION:
Background
To help achieve the fishing mortality and conservation objectives
of the Fishery Management Plan (FMP), each sector is allocated annual
catch entitlements (ACE) and must ensure that these ACEs are not
exceeded. The Regional Administrator must approve sector operations
plans in order for sectors to operate and be allocated ACE for specific
groundfish stocks. A sector's operations plan includes a detailed plan
for monitoring and reporting catch and the specific management rules
sector participants will abide by in order to avoid exceeding the
sector's allocation, as well as a plan for how the sector will operate
if an ACE is exceeded. The operations plan also includes internal
sector enforcement measures for operation plan breaches and remedies,
such as a penalty schedule for non-compliance with the operations plan
or other actions that would jeopardize the sector's continued approval.
Penalties under the plan range from a written warning or fine to
expulsion from the sector.
The Regional Administrator may withdraw approval of a sector, after
consultation with the New England Fishery Management Council, at any
time as authorized in 50 CFR 648.87(c)(3). Withdrawal may occur if
sector participants are not complying with the requirements of the
approved operations plan or if the continuation of the operations plan
will undermine achievement of fishing mortality objectives of the
Northeast Multispecies FMP.
On March 30, 2017, Carlos Rafael pleaded guilty to all counts in
United States v. Carlos Rafael (No. 16-CR10124-WGY). Mr. Rafael is the
owner of Carlos Seafood (a Federally permitted dealer) and a fleet of
Federally permitted groundfish vessels that are enrolled in NEFS 9. Mr.
Rafael admitted to falsely reporting catch information (species and
weight) for 13 of his vessels on dealer catch reports and vessel trip
reports from 2012 through 2015. These 13 vessels operated under the
sector operations plan for NEFS 9 during the period of known
misreporting, and are currently enrolled in the sector for fishing year
2017. Sentencing for these violations occurred on September 25, 2017.
Mr. Rafael was sentenced to serve 46 months in prison and 3 years of
supervised release, and during supervised release, he is banned from
working in the fishing industry. The Court also ordered Mr. Rafael to
pay a fine of $200,000 and restitution to the U.S. Treasury of
$108,929. On October 11, 2017, the U.S. District Court Judge in the
criminal case ordered the forfeiture of Mr. Rafael's interests in 4 of
the 13 vessels involved in the criminal case, as well as the permits
issued to those vessels.
On April 28, 2017, we published an interim final rule approving 19
sectors and their operations plans, including NEFS 9, for fishing years
2017 and 2018 (82 FR 19618). At the time, although Mr. Rafael had
pleaded guilty, the criminal case was not complete and sentencing for
the violations had not occurred. We provisionally approved the NEFS 9
operations plan for fishing years 2017 and 2018, and allocated ACE to
the sector for 2017, pending Mr. Rafael's sentencing to allow for our
consideration of any additional information regarding NEFS 9
operations. In the interim final rule, we noted that we intended to
take
[[Page 55523]]
additional action, which may include consideration of the continued
approval of the sector or additional management and monitoring
requirements.
NEFS 9 Composition
For fishing year 2017, there are 60 groundfish permits enrolled in
NEFS 9, and Mr. Rafael is a major participant in the sector. All of Mr.
Rafael's groundfish permits are enrolled in NEFS 9, and he does not
have any other vessels enrolled in another sector. According to the
current operations plan, 22 of the permits enrolled in NEFS 9 were
expected to actively fish for groundfish. Of the remaining 38 permits
in the sector, 18 are in Confirmation of Permit History (i.e. the
permits are not on a vessel, but quota from these permits is available
for use by sector vessels or to lease out to other sectors). The other
permits in the sector are either active participants in other
fisheries, or are completely inactive; all of these could begin to fish
for groundfish, if granted permission by the sector, without a change
to the operations plan.
Since fishing year 2011, NEFS 9 employed Mr. Rafael's daughter,
Stephanie Rafael-DeMello as the Sector Manager. Prior to May 30, 2017,
Mr. Rafael was the President of NEFS 9 and held a position on the Board
of Directors. On May 30, 2017, the sector notified us that it had
removed Mr. Rafael from the position of President, as well as from the
Board of Directors. A new Board of Directors was identified, including
the Board's elected officials, with only one individual in common with
the Board from previous years.
NEFS 9 Operations Plan Breaches
Beyond the requirements described above to monitor and report
catch, the NEFS 9 operations plan specifies that upon the Sector
Manager becoming aware of an ``apparent breach'' in a member's
compliance, the Manager will investigate. The Manager is also
authorized to refer the matter to the sector's Enforcement Committee
and take other actions as necessary, including potentially issuing a
``Stop Fishing Order.'' The Manager is required to submit a weekly Trip
Issue Report to inform us of any enforcement, or reporting compliance
issues in the sector.
Since Mr. Rafael's guilty plea in March 2017, we received a letter
on May 30, 2017, from the newly elected president of NEFS 9 concerning
matters related to Mr. Rafael's criminal acts. The letter outlined
changes to the sector's Board of Directors, as described above, which
is also included in the NEFS 9 operations plan. In the letter, the
president stated that the Board notified all sector members that NEFS 9
vessels are prohibited from using Carlos Seafood, Inc. as the primary
buyer and reporting dealer for any landings. The letter also indicated
that the newly constituted Enforcement Committee intended to meet to
further discuss Mr. Rafael's criminal violations.
On October 5, 2017, representatives of the sector requested a
meeting with us to discuss the sector, and we met with the NEFS 9 Board
of Directors, the Sector Manager, and representatives from the
Northeast Seafood Coalition and the Northeast Sector Service Network
(NESSN) on October 26, 2017. From that discussion, we learned that the
Board of Directors, including those on the sector's newly formed
Enforcement Committee, had met monthly since forming in May 2017.
However, the Board of Directors indicated that no additional changes
have been made to the operations of the sector beyond what was
described in the May 30, 2017, letter. Similarly, the sector's annual
Year-End Report for Fishing Year 2016, submitted on October 27, 2017,
made reference to the steps laid out in the May 30 letter, but gave no
indication that further steps had been taken. We have not received any
other information from the sector.
While the steps taken that are identified in the May 30 letter are
potentially positive measures, they are insufficient. The sector has
not provided sufficient background information about the new Board
members that would help us assess their independence or ability to
govern the sector differently to ensure compliance. NEFS 9 has not
provided us with any information, via the Trip Issue Report or other
means, regarding any investigation by the sector to determine if any of
its members or vessel operators breached the operations plan agreement.
Nor has there been any indication that the Board, Enforcement
Committee, or Manager have taken any sector operations plan measures to
address any breach such as imposing or putting in place any liquidated
damages, fine, stop fishing order, expulsion, or a requirement to post
a security bond, which are potential actions included in NEFS 9's
operations plan. There has been no indication of whether any measures
have been put in place to ensure compliance by any vessel operators who
may have assisted in the misreporting. Additionally, the sector has not
provided to us any accounting of any of the potential ACE overages or
misallocations. Although the new Board does provide a more independent
group to which the Manager is required to report potential violations,
it is not clear if the sector personnel changes fully address the
Manager's responsibility for the sector's reporting requirements, ACE
monitoring, and monitoring sector members' compliance with the
operations plan. Last, there have been no substantial changes in the
NEFS 9 operations plan for fishing years 2017 and 2018 to prevent
further misreporting by any of its members or vessel operators;
however, we recognize that the Board prohibited NEFS 9 vessels from
using Carlos Seafood as the primary buyer and reporting dealer for any
landings.
NEFS 9 ACE Overages
If a sector exceeds its ACE in any fishing year, the regulations
require that the overage be deducted from the sector's ACE in the
following fishing year. Based on publically available information from
the criminal case, NEFS 9 likely exceeded its ACE for multiple
groundfish stocks in multiple years potentially beginning in the 2012
fishing year. Because Mr. Rafael operated as both the dealer and vessel
owner with no independent oversight, he was able to coordinate the
misreporting, allowing these potential overages to go undetected until
now. The repeated ACE overages we are now aware of indicate that the
initial allocations made to the sector at the start of the 2017 fishing
year and likely other fishing years were artificially high. As a
result, the sector's catch to date may already exceed what would have
been an accurate allocation for this fishing year.
Based on initial analysis of the misreported catch for American
plaice and witch flounder, the magnitude of some of the ACE overages
could be extensive. The misreported catch information for cod and
yellowtail flounder is at a species level, and additional analysis is
required to apportion this catch by stock area. We intend to complete
this analysis as soon as possible to determine the full extent of any
overages for cod and yellowtail flounder stocks. Any accountability
measures, such as assessing and deducting ACE overages incurred by the
sector, would be determined in a future action. Other than the public
information we have access to from Mr. Rafael's plea agreement, NEFS 9
has not provided any information about the nature and scope of
misreporting that would help us to accurately administer its ACEs.
[[Page 55524]]
Disapproval of NEFS 9 Sector Operations Plan
The Council discussed Mr. Rafael's violations and the conditional
approval of NEFS 9 at both its June and September 2017 meetings and was
encouraged to comment on this issue. On September 29, 2017, we received
a letter from the Council requesting that we immediately implement the
sector regulations and the NEFS 9 operations plan.
Based on our review, NEFS 9 has failed to uphold sector operations
plan requirements to a degree and extent that undermines foundational
principles necessary for successful sector operations. Further, the
sector's corrective measures to date are insufficient. We need more
information and further measures are necessary to ensure that the
sector operates in a manner that does not undermine the sector program.
Accurate reporting, internal accountability, and organizational
integrity are core principles of the sector system. The systematic
sector and vessel misreporting over a long period of time was
facilitated by an internal structure and control by a single, dominant
participant combined with a lack of oversight. The weakness and
vulnerability of this sector's structure was underscored by NEFS 9's
lack of an adequate response once the scope and nature of these
violations were revealed. To date, there appears to be persistent non-
compliance with fundamental operations plan requirements along with a
significantly compromised structure and lack of NEFS 9 oversight. NEFS
9's failures to manage its operations effectively appear to have led to
repeated ACE overages, some of which may be extensive. These overages
may be continuing this fishing year, which threatens to continue
undermining the sector system and its fishing mortality and
conservation controls.
Without further information or revisions to its operations plan, we
are not confident that the operations plan contains measures that would
provide us with current accurate information or ensure compliance with
the operations plan to prevent and address future misreporting or ACE
overages. The sector has not provided us with information of any action
it has taken to investigate its members' compliance with the sector
operations plan or any measures to address breaches of its plan. The
sector has not provided any information to help us corroborate the
nature and scope of the false information provided to us and its effect
on the sector's ACEs. The sector has not provided us with any
information about the nature and scope of vessel operator cooperation
with the non-compliance, or how the sector can be assured the operators
are acting in compliance with the operations plan now. The sector has
made no new proposals about any new compliance measures or provided any
information about actions taken by their new Enforcement Committee.
NEFS 9 has failed its primary responsibility of accurately
reporting and tracking its catch and has taken only minimal,
insufficient steps to ensure accurate reporting and compliance with its
operations plan. This includes addressing the fraudulent catch within
the sector over multiple years and for multiple stocks to ensure the
sector has proper ACE allocations, which may require deducting ACE
overages the sector has incurred. As a result, continuation of the
sector operations plan will undermine achievement of fishing mortality
and management objectives of the Northeast Multispecies FMP. Therefore,
we are withdrawing approval of the NEFS 9 sector operations plan until
a complete and successful accounting of what happened is provided and
steps are taken to ensure the sector will operate within its operations
plan. We intend to work with NEFS 9 to address their operations plan
issues, which we expect will take considerable time and will require
additional correspondence and meetings after publication of this rule.
Timing of Withdrawing Approval and Approval
Effective November 20, 2017, approval of the NEFS 9 operation plan
is withdrawn. The sector ACE remains allocated to NEFS 9, and this
action does not reallocate the ACE to other sectors or to the common
pool. Without an approved operations plan, NEFS 9 is prohibited from
transferring ACE to or from other sectors. Vessels that were enrolled
in NEFS 9 during this fishing year are prohibited from: (1) Fishing on
a sector trip and harvesting sector ACE; (2) fishing on a common pool
trip; or (3) joining another sector. If a vessel enrolled in NEFS 9 has
declared a sector trip, and is at sea on November 20, 2017, it must
return to port immediately; the vessel is permitted to offload its
catch for sale. Also, we will work with individual vessels that had
previously set gillnet gear, to haul the gear as soon as practicable.
Vessels that are able to fish under other permits, without declaring a
sector trip or using a multispecies day-at-sea, can continue to do so.
If NEFS 9 submits a new operations plan, we would attempt to
conduct a review and complete a rulemaking as expeditiously as
practicable. Before we could approve a new operations plan for NEFS 9,
the sector must provide us with critical information about steps taken
to comply with operations plan requirements and ensure steps are taken
to address the organizational and operational issues that facilitated
the false reporting. Vessels currently enrolled in NEFS 9 may opt to
participate in the common pool or enroll in a different sector for the
2018 fishing year, as sector rosters are set annually.
Comments and Responses
We are accepting comments on this interim final rule. In response
to the previous interim final rule approving 19 sectors (April 28,
2017; 82 FR 19618), we received eight comments relating to the
provisional approval of NEFS 9 for the 2017 and 2018 fishing years. The
comments came from Associated Fisheries of Maine (AFM), NEFS 9, NESSN,
Portland Fish Exchange (PFEX), Sustainable Harvest Sector (SHS), two
industry members, and one anonymous commenter.
Provisional Approval of NEFS 9 Operations Plan
Comment 1: NESSN commented that NMFS approval of NEFS 9 was
appropriate at that time given the ongoing legal proceedings against a
sector member and not the sector itself.
Other comments from AFM, PFEX, SHS, two industry members, and one
anonymous commenter disagreed, stating that NEFS 9's operations plan
should not have been approved for Fishing Years 2017 and 2018 given the
admitted crimes of NEFS 9 sector member, Mr. Rafael. Several of these
commenters elaborated on measures included in the sector operations
plan that the sector may not have complied with or enforced after it
learned of Mr. Rafael's actions, and that the sector should be held
accountable to the actions outlined in their plan. Some also stated
that NMFS' actions were inadequate in this case and that 100 percent
monitoring for NEFS 9 may be appropriate.
Response: We agree that, at the time, provisional approval of the
NEFS 9 operations plan was appropriate given that sentencing for the
criminal violations was not complete and may have provided additional
information. In the interim final rule, we noted that once sentencing
is complete, we would consider all of the available information to
determine whether any management action is necessary, including
additional
[[Page 55525]]
management measures or withdrawal of NEFS 9 approval.
Based on all of the available information, and now that sentencing
is complete, we have determined that NEFS 9 failed and continues to
fail to uphold the requirements of its operations plan. This non-
compliance likely contributed to extensive overages of the sector's
allocation for multiple groundfish stocks in multiple fishing years.
The degree and extent of NEFS 9's failure to uphold its operations plan
requirements undermines the foundational principles necessary for
successful sector operations. As a result, we determined that NEFS 9
cannot continue to operate until and unless we receive sufficient
information concerning the scope and nature of the operations plan
breaches, actions taken by the sector in response to the breaches in
accordance with operations plan requirements, and actions that will
ensure the sector currently is operating in compliance with its
operations plan and within its ACEs. This includes addressing the
fraudulent catch within the sector over multiple years and for multiple
stocks to ensure the sector has proper ACE allocations, which may
require deducting ACE overages the sector has incurred. We intend to
work with NEFS 9 to address its operations plan issues and will
determine the measures necessary for ensuring that the sector's
operations are appropriate and sufficient for accurately monitoring and
reporting sector catch.
Accurate reporting, accountability, and organizational integrity
are core principles of the sector system. In this case, NEFS 9 failed
its primary responsibilities. Systematic misreporting over multiple
fishing years, a failure to abide by, and enforce, sector operations
plan requirements, and the internal structure of NEFS 9 were all
contributing factors to the persistent non-compliance of NEFS 9
operations plan requirements and likely to extensive ACE overages.
Because NEFS 9 has not sufficiently addressed all of these contributing
factors, its continued approval under the current operations plan is
likely not adequate to prevent and address continued, or future,
misreporting, or non-compliance by any of its members, and would
undermine the conservation and management objectives of the Northeast
Multispecies FMP.
Forfeiture of Permits Held by Carlos Rafael
Comment 2: AFM, PFEX, and two members of the industry stated that
Mr. Rafael should no longer be allowed to participate in the groundfish
fishery and that all his permits should be relinquished.
Response: As discussed earlier in this rule, Mr. Rafael was
sentenced to 46 months of prison, 3 years of supervised release,
assessed a $200,000 fine, and required to pay $108,929 restitution. On
October 11, 2017, the U.S. District Court also ordered the forfeiture
of Mr. Rafael's interest in four of 13 vessels involved in the criminal
case. There may be management implications from this forfeiture that
may need to be included in the NEFS 9 operations plan. We intend to
discuss potential implications, if any, with NEFS 9.
This is not an enforcement action, and does not impose civil
penalties, permit sanctions, or forfeitures. Any civil penalties or
permit sanctions may be imposed only after adequate notice and an
opportunity for a hearing before an administrative law judge in
accordance with NOAA's civil procedure regulations. This rule
withdrawing approval of the NEFS 9 operations plan is administrative in
nature, and addresses the sector requirements of the FMP and the
sector's operations plan. If NEFS 9 continues to operate under its
current operations plan with only the minimal changes it has proposed,
it will undermine conservation and management objectives of the FMP.
This disapproval of the current NEFS 9 operations plan in this
action relates only to the sector operations plan and the sector's
ability to operate without undermining the sector system. Without an
approved operations plan, all of the vessels currently enrolled in NEFS
9 will be unable to operate in the groundfish fishery for the remainder
of the 2017 fishing year. Unless there is an additional enforcement
action that affects the vessels' permits, the sector vessels may
continue to operate in accordance with their non-groundfish permits.
For the 2018 fishing year, these vessels could opt to fish in the
common pool, or enroll in a sector with an approved operations plan. If
NEFS 9 submits, and we approve, a new operations plan that addresses
the serious management concerns discussed throughout this rule and that
ensures the sector could operate without undermining the objectives of
the Northeast Multispecies FMP, the vessels could re-enroll in NEFS 9.
Changes to NEFS 9 Operations
Comment 3: NEFS 9 submitted a letter outlining the changes it made
in response to the pending criminal case. NEFS 9 removed Mr. Rafael
from its Board of Directors and elected a new Board, created a new
Enforcement Committee, and decided not to allow sector members to sell
catch to Carlos Seafood, Inc. as a primary buyer.
Response: We acknowledge these actions; however, they are
insufficient by themselves. There are numerous issues that must be
addressed as noted in this rule that we have begun to address with the
sector. We expect to continue to discuss these issues with NEFS 9
during the approval process for any new operations plan.
Classification
The NMFS Assistant Administrator (AA) has determined that this
interim final rule is consistent with the Northeast Multispecies FMP,
other provisions of the Magnuson-Stevens Act, and other applicable law.
This interim final rule is exempt from review under Executive Order
12866 because this action contains no implementing regulations.
The interim final rule approving 19 sectors, including NEFS 9,
provided an opportunity for the public to comment on the provisional
approval of the NEFS 9 operations plan. The interim final rule
specified that we would consider further action, including
consideration of further management or monitoring requirements and
continued approval of the sector. Pursuant to 5 U.S.C. 553(b)(B), the
AA finds that prior notice and the opportunity for public comment would
be contrary to the public interest. The purpose of this action is to
withdraw approval for a previously approved and currently operating
sector. We have determined that NEFS 9 and its members are not
complying with the requirements of the operations plan, and that the
operations plan is not sufficient to address the serious management
issues described earlier in this preamble. The time it would take for
prior notice and opportunity for public comment would allow the sector
to continue to operate under a failed operations plan that is not
consistent with the management and conservation objectives of the FMP.
We need further information to determine the full nature and extent of
any ACE overages and how they will affect NEFS 9 operations. The likely
ACE overages that occurred, possibly beginning in the 2012 fishing
year, suggest that the initial allocations made to NEFS 9 at the start
of this fishery year may be artificially high. As a result, the
sector's catch to date may already exceed what would have been an
accurate allocation for this fishing year. Allowing the sector to
proceed without an accurate accounting of known misreporting will
undermine effective management of the sector program and could further
undermine fishing mortality objectives of the FMP.
[[Page 55526]]
Further, providing the participants in the sector with advanced notice
of the disapproval by delaying the effective date would create an
incentive for sector members to harvest or lease out as much of the
sector's quota as possible, while operating under an operations plan
that we have determined undermines the objectives of the Northeast
Multispecies FMP.
Additionally, the AA finds there is good cause under 5 U.S.C.
553(d)(3), to waive the 30-day delay in effectiveness so that the
purpose of this rule is not undermined. As stated above, the purpose of
this action is prevent a sector from fishing under a sector operations
plan that has been determined to undermine the objectives of the FMP,
and that may be fishing under allocations that are artificially high
considering the potential ACE overages that have occurred since 2012. A
delay in the implementation of this rule would allow the sector to
continue to operate under an operations plan that is determined to have
not adequately ensured accurate reporting or compliance, and that the
sector has failed to enforce. A delay in implementation would also
increase the likelihood of additional ACE overages for NEFS 9 since its
initial allocations for the 2017 fishing year does not include any
adjustments for previous overages. As a result, continued operation of
the sector further jeopardizes the objectives of the FMP and increases
the likelihood that additional quota overages may occur.
This interim final 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 interim final 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.
Authority: 16 U.S.C. 1801 et seq.
Dated: November 17, 2017.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2017-25299 Filed 11-20-17; 8:45 am]
BILLING CODE 3510-22-P
