82_FR_55746 82 FR 55522 - Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Disapproval of Northeast Fishery Sector IX Operational Plan

82 FR 55522 - Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Disapproval of Northeast Fishery Sector IX Operational Plan

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 82, Issue 224 (November 22, 2017)

Page Range55522-55526
FR Document2017-25299

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.

Federal Register, Volume 82 Issue 224 (Wednesday, November 22, 2017)
[Federal Register Volume 82, Number 224 (Wednesday, November 22, 2017)]
[Rules and Regulations]
[Pages 55522-55526]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-25299]


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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.

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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



                                             55522        Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Rules and Regulations

                                             December time period, rather than the                   2017, through April 30, 2019) is                      such as a penalty schedule for non-
                                             fishery automatically re-opening on                     withdrawn, effective November 20,                     compliance with the operations plan or
                                             December 1. The delay would preclude                    2017. Written comments must be                        other actions that would jeopardize the
                                             the fishery from harvesting BFT that are                received on or before December 20,                    sector’s continued approval. Penalties
                                             available on the fishing grounds and                    2017.                                                 under the plan range from a written
                                             that might otherwise become                             ADDRESSES: You may submit comments                    warning or fine to expulsion from the
                                             unavailable during a delay. Therefore,                  on this document, identified by NOAA–                 sector.
                                             the AA finds good cause under 5 U.S.C.                                                                           The Regional Administrator may
                                                                                                     NMFS–2017–0016, by either of the
                                             553(b)(B) to waive prior notice and the                                                                       withdraw approval of a sector, after
                                                                                                     following methods:
                                             opportunity for public comment. For                       • Electronic Submission: Submit all                 consultation with the New England
                                             these reasons, there also is good cause                 electronic public comments via the                    Fishery Management Council, at any
                                             under 5 U.S.C. 553(d) to waive the 30-                  Federal e-Rulemaking Portal. Go to                    time as authorized in 50 CFR
                                             day delay in effectiveness.                             www.regulations.gov/                                  648.87(c)(3). Withdrawal may occur if
                                                This action is being taken under                                                                           sector participants are not complying
                                                                                                     #!docketDetail;D=NOAA-NMFS-2017-
                                             § 635.27(a)(9) (Inseason adjustments)                                                                         with the requirements of the approved
                                                                                                     0016, click the ‘‘Comment Now!’’ icon,
                                             and is exempt from review under                                                                               operations plan or if the continuation of
                                                                                                     complete the required fields, and enter
                                             Executive Order 12866.                                                                                        the operations plan will undermine
                                                                                                     or attach your comments.
                                                Authority: 16 U.S.C. 971 et seq. and 1801              • Mail: Submit written comments to                  achievement of fishing mortality
                                             et seq.                                                 John K. Bullard, Regional                             objectives of the Northeast Multispecies
                                                                                                     Administrator, National Marine                        FMP.
                                               Dated: November 16, 2017.                                                                                      On March 30, 2017, Carlos Rafael
                                             Emily H. Menashes,                                      Fisheries Service, 55 Great Republic
                                                                                                                                                           pleaded guilty to all counts in United
                                             Acting Director, Office of Sustainable                  Drive, Gloucester, MA 01930. Mark the
                                                                                                                                                           States v. Carlos Rafael (No. 16–
                                             Fisheries, National Marine Fisheries Service.           outside of the envelope, ‘‘Comments on                CR10124–WGY). Mr. Rafael is the owner
                                             [FR Doc. 2017–25202 Filed 11–21–17; 8:45 am]            the Interim Final Rule to Withdraw                    of Carlos Seafood (a Federally permitted
                                             BILLING CODE 3510–22–P
                                                                                                     Approval of NEFS 9.’’                                 dealer) and a fleet of Federally
                                                                                                       Instructions: Comments sent by any
                                                                                                                                                           permitted groundfish vessels that are
                                                                                                     other method, to any other address or
                                                                                                                                                           enrolled in NEFS 9. Mr. Rafael admitted
                                             DEPARTMENT OF COMMERCE                                  individual, or received after the end of
                                                                                                                                                           to falsely reporting catch information
                                                                                                     the comment period, may not be
                                                                                                                                                           (species and weight) for 13 of his vessels
                                             National Oceanic and Atmospheric                        considered by NMFS. All comments
                                                                                                                                                           on dealer catch reports and vessel trip
                                             Administration                                          received are a part of the public record              reports from 2012 through 2015. These
                                                                                                     and will generally be posted for public               13 vessels operated under the sector
                                             50 CFR Part 648                                         viewing on www.regulations.gov                        operations plan for NEFS 9 during the
                                                                                                     without change. All personal identifying              period of known misreporting, and are
                                             [Docket No. 170104016–7999–03]
                                                                                                     information (e.g., name, address, etc.),              currently enrolled in the sector for
                                             RIN 0648–XF138                                          confidential business information, or                 fishing year 2017. Sentencing for these
                                                                                                     otherwise sensitive information                       violations occurred on September 25,
                                             Magnuson-Stevens Act Provisions;                        submitted voluntarily by the sender will
                                             Fisheries of the Northeastern United                                                                          2017. Mr. Rafael was sentenced to serve
                                                                                                     be publicly accessible. NMFS will                     46 months in prison and 3 years of
                                             States; Northeast Multispecies                          accept anonymous comments (enter ‘‘N/
                                             Fishery; Disapproval of Northeast                                                                             supervised release, and during
                                                                                                     A’’ in the required fields if you wish to             supervised release, he is banned from
                                             Fishery Sector IX Operational Plan                      remain anonymous).                                    working in the fishing industry. The
                                             AGENCY:  National Marine Fisheries                      FOR FURTHER INFORMATION CONTACT: Liz                  Court also ordered Mr. Rafael to pay a
                                             Service (NMFS), National Oceanic and                    Sullivan, Fishery Policy Analyst, (978)               fine of $200,000 and restitution to the
                                             Atmospheric Administration (NOAA),                      282–8493.                                             U.S. Treasury of $108,929. On October
                                             Commerce.                                               SUPPLEMENTARY INFORMATION:                            11, 2017, the U.S. District Court Judge
                                             ACTION: Interim final rule.                                                                                   in the criminal case ordered the
                                                                                                     Background
                                                                                                                                                           forfeiture of Mr. Rafael’s interests in 4
                                             SUMMARY:   This rule withdraws approval                   To help achieve the fishing mortality               of the 13 vessels involved in the
                                             of the 2017 and 2018 Northeast Fishery                  and conservation objectives of the                    criminal case, as well as the permits
                                             Sector IX operations plan. The Regional                 Fishery Management Plan (FMP), each                   issued to those vessels.
                                             Administrator determined that the                       sector is allocated annual catch                         On April 28, 2017, we published an
                                             sector and its participants are not                     entitlements (ACE) and must ensure that               interim final rule approving 19 sectors
                                             complying with the requirements of the                  these ACEs are not exceeded. The                      and their operations plans, including
                                             approved operations plan, and that the                  Regional Administrator must approve                   NEFS 9, for fishing years 2017 and 2018
                                             continuation of the operations plan will                sector operations plans in order for                  (82 FR 19618). At the time, although Mr.
                                             undermine achievement of conservation                   sectors to operate and be allocated ACE               Rafael had pleaded guilty, the criminal
                                             and management objectives of the                        for specific groundfish stocks. A sector’s            case was not complete and sentencing
                                             Northeast Multispecies Fishery                          operations plan includes a detailed plan              for the violations had not occurred. We
                                             Management Plan. This rule is intended                  for monitoring and reporting catch and                provisionally approved the NEFS 9
                                             to ensure that sector operations are                    the specific management rules sector                  operations plan for fishing years 2017
                                             consistent with approved plans for                      participants will abide by in order to                and 2018, and allocated ACE to the
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                                             accurately monitoring and reporting                     avoid exceeding the sector’s allocation,              sector for 2017, pending Mr. Rafael’s
                                             sector catch to ensure that overages of                 as well as a plan for how the sector will             sentencing to allow for our
                                             a sector’s allocation do not occur.                     operate if an ACE is exceeded. The                    consideration of any additional
                                             DATES: Approval of the Northeast                        operations plan also includes internal                information regarding NEFS 9
                                             Fishery Sector IX Operations Plan for                   sector enforcement measures for                       operations. In the interim final rule, we
                                             Fishing Years 2017 and 2018 (May 1,                     operation plan breaches and remedies,                 noted that we intended to take


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                                                          Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Rules and Regulations                                          55523

                                             additional action, which may include                    president stated that the Board notified              violations, it is not clear if the sector
                                             consideration of the continued approval                 all sector members that NEFS 9 vessels                personnel changes fully address the
                                             of the sector or additional management                  are prohibited from using Carlos                      Manager’s responsibility for the sector’s
                                             and monitoring requirements.                            Seafood, Inc. as the primary buyer and                reporting requirements, ACE
                                                                                                     reporting dealer for any landings. The                monitoring, and monitoring sector
                                             NEFS 9 Composition
                                                                                                     letter also indicated that the newly                  members’ compliance with the
                                               For fishing year 2017, there are 60                   constituted Enforcement Committee                     operations plan. Last, there have been
                                             groundfish permits enrolled in NEFS 9,                  intended to meet to further discuss Mr.               no substantial changes in the NEFS 9
                                             and Mr. Rafael is a major participant in                Rafael’s criminal violations.
                                             the sector. All of Mr. Rafael’s groundfish                                                                    operations plan for fishing years 2017
                                                                                                        On October 5, 2017, representatives of
                                             permits are enrolled in NEFS 9, and he                                                                        and 2018 to prevent further
                                                                                                     the sector requested a meeting with us
                                             does not have any other vessels enrolled                to discuss the sector, and we met with                misreporting by any of its members or
                                             in another sector. According to the                     the NEFS 9 Board of Directors, the                    vessel operators; however, we recognize
                                             current operations plan, 22 of the                      Sector Manager, and representatives                   that the Board prohibited NEFS 9
                                             permits enrolled in NEFS 9 were                         from the Northeast Seafood Coalition                  vessels from using Carlos Seafood as the
                                             expected to actively fish for groundfish.               and the Northeast Sector Service                      primary buyer and reporting dealer for
                                             Of the remaining 38 permits in the                      Network (NESSN) on October 26, 2017.                  any landings.
                                             sector, 18 are in Confirmation of Permit                From that discussion, we learned that                 NEFS 9 ACE Overages
                                             History (i.e. the permits are not on a                  the Board of Directors, including those
                                             vessel, but quota from these permits is                 on the sector’s newly formed                             If a sector exceeds its ACE in any
                                             available for use by sector vessels or to               Enforcement Committee, had met                        fishing year, the regulations require that
                                             lease out to other sectors). The other                  monthly since forming in May 2017.                    the overage be deducted from the
                                             permits in the sector are either active                 However, the Board of Directors                       sector’s ACE in the following fishing
                                             participants in other fisheries, or are                 indicated that no additional changes                  year. Based on publically available
                                             completely inactive; all of these could                 have been made to the operations of the               information from the criminal case,
                                             begin to fish for groundfish, if granted                sector beyond what was described in the
                                             permission by the sector, without a                                                                           NEFS 9 likely exceeded its ACE for
                                                                                                     May 30, 2017, letter. Similarly, the
                                             change to the operations plan.                                                                                multiple groundfish stocks in multiple
                                                                                                     sector’s annual Year-End Report for
                                               Since fishing year 2011, NEFS 9                       Fishing Year 2016, submitted on                       years potentially beginning in the 2012
                                             employed Mr. Rafael’s daughter,                         October 27, 2017, made reference to the               fishing year. Because Mr. Rafael
                                             Stephanie Rafael-DeMello as the Sector                  steps laid out in the May 30 letter, but              operated as both the dealer and vessel
                                             Manager. Prior to May 30, 2017, Mr.                     gave no indication that further steps had             owner with no independent oversight,
                                             Rafael was the President of NEFS 9 and                  been taken. We have not received any                  he was able to coordinate the
                                             held a position on the Board of                         other information from the sector.                    misreporting, allowing these potential
                                             Directors. On May 30, 2017, the sector                     While the steps taken that are                     overages to go undetected until now.
                                             notified us that it had removed Mr.                     identified in the May 30 letter are                   The repeated ACE overages we are now
                                             Rafael from the position of President, as               potentially positive measures, they are               aware of indicate that the initial
                                             well as from the Board of Directors. A                  insufficient. The sector has not provided             allocations made to the sector at the
                                             new Board of Directors was identified,                  sufficient background information about               start of the 2017 fishing year and likely
                                             including the Board’s elected officials,                the new Board members that would                      other fishing years were artificially high.
                                             with only one individual in common                      help us assess their independence or                  As a result, the sector’s catch to date
                                             with the Board from previous years.                     ability to govern the sector differently to           may already exceed what would have
                                                                                                     ensure compliance. NEFS 9 has not                     been an accurate allocation for this
                                             NEFS 9 Operations Plan Breaches
                                                                                                     provided us with any information, via                 fishing year.
                                                Beyond the requirements described                    the Trip Issue Report or other means,
                                             above to monitor and report catch, the                  regarding any investigation by the sector                Based on initial analysis of the
                                             NEFS 9 operations plan specifies that                   to determine if any of its members or                 misreported catch for American plaice
                                             upon the Sector Manager becoming                        vessel operators breached the operations              and witch flounder, the magnitude of
                                             aware of an ‘‘apparent breach’’ in a                    plan agreement. Nor has there been any                some of the ACE overages could be
                                             member’s compliance, the Manager will                   indication that the Board, Enforcement                extensive. The misreported catch
                                             investigate. The Manager is also                        Committee, or Manager have taken any                  information for cod and yellowtail
                                             authorized to refer the matter to the                   sector operations plan measures to                    flounder is at a species level, and
                                             sector’s Enforcement Committee and                      address any breach such as imposing or                additional analysis is required to
                                             take other actions as necessary,                        putting in place any liquidated                       apportion this catch by stock area. We
                                             including potentially issuing a ‘‘Stop                  damages, fine, stop fishing order,                    intend to complete this analysis as soon
                                             Fishing Order.’’ The Manager is                         expulsion, or a requirement to post a                 as possible to determine the full extent
                                             required to submit a weekly Trip Issue                  security bond, which are potential                    of any overages for cod and yellowtail
                                             Report to inform us of any enforcement,                 actions included in NEFS 9’s operations               flounder stocks. Any accountability
                                             or reporting compliance issues in the                   plan. There has been no indication of                 measures, such as assessing and
                                             sector.                                                 whether any measures have been put in
                                                                                                                                                           deducting ACE overages incurred by the
                                                Since Mr. Rafael’s guilty plea in                    place to ensure compliance by any
                                             March 2017, we received a letter on May                                                                       sector, would be determined in a future
                                                                                                     vessel operators who may have assisted
                                             30, 2017, from the newly elected                                                                              action. Other than the public
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                                                                                                     in the misreporting. Additionally, the
                                             president of NEFS 9 concerning matters                  sector has not provided to us any                     information we have access to from Mr.
                                             related to Mr. Rafael’s criminal acts. The              accounting of any of the potential ACE                Rafael’s plea agreement, NEFS 9 has not
                                             letter outlined changes to the sector’s                 overages or misallocations. Although                  provided any information about the
                                             Board of Directors, as described above,                 the new Board does provide a more                     nature and scope of misreporting that
                                             which is also included in the NEFS 9                    independent group to which the                        would help us to accurately administer
                                             operations plan. In the letter, the                     Manager is required to report potential               its ACEs.


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                                             55524        Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Rules and Regulations

                                             Disapproval of NEFS 9 Sector                            provided us with any information about                review and complete a rulemaking as
                                             Operations Plan                                         the nature and scope of vessel operator               expeditiously as practicable. Before we
                                                The Council discussed Mr. Rafael’s                   cooperation with the non-compliance,                  could approve a new operations plan for
                                             violations and the conditional approval                 or how the sector can be assured the                  NEFS 9, the sector must provide us with
                                             of NEFS 9 at both its June and                          operators are acting in compliance with               critical information about steps taken to
                                             September 2017 meetings and was                         the operations plan now. The sector has               comply with operations plan
                                             encouraged to comment on this issue.                    made no new proposals about any new                   requirements and ensure steps are taken
                                             On September 29, 2017, we received a                    compliance measures or provided any                   to address the organizational and
                                             letter from the Council requesting that                 information about actions taken by their              operational issues that facilitated the
                                             we immediately implement the sector                     new Enforcement Committee.                            false reporting. Vessels currently
                                                                                                       NEFS 9 has failed its primary                       enrolled in NEFS 9 may opt to
                                             regulations and the NEFS 9 operations
                                                                                                     responsibility of accurately reporting                participate in the common pool or
                                             plan.
                                                                                                     and tracking its catch and has taken                  enroll in a different sector for the 2018
                                                Based on our review, NEFS 9 has
                                                                                                     only minimal, insufficient steps to                   fishing year, as sector rosters are set
                                             failed to uphold sector operations plan
                                                                                                     ensure accurate reporting and                         annually.
                                             requirements to a degree and extent that
                                                                                                     compliance with its operations plan.
                                             undermines foundational principles                                                                            Comments and Responses
                                                                                                     This includes addressing the fraudulent
                                             necessary for successful sector
                                                                                                     catch within the sector over multiple                   We are accepting comments on this
                                             operations. Further, the sector’s                       years and for multiple stocks to ensure
                                             corrective measures to date are                                                                               interim final rule. In response to the
                                                                                                     the sector has proper ACE allocations,                previous interim final rule approving 19
                                             insufficient. We need more information                  which may require deducting ACE
                                             and further measures are necessary to                                                                         sectors (April 28, 2017; 82 FR 19618),
                                                                                                     overages the sector has incurred. As a                we received eight comments relating to
                                             ensure that the sector operates in a                    result, continuation of the sector
                                             manner that does not undermine the                                                                            the provisional approval of NEFS 9 for
                                                                                                     operations plan will undermine                        the 2017 and 2018 fishing years. The
                                             sector program.                                         achievement of fishing mortality and
                                                Accurate reporting, internal                                                                               comments came from Associated
                                                                                                     management objectives of the Northeast                Fisheries of Maine (AFM), NEFS 9,
                                             accountability, and organizational                      Multispecies FMP. Therefore, we are
                                             integrity are core principles of the sector                                                                   NESSN, Portland Fish Exchange (PFEX),
                                                                                                     withdrawing approval of the NEFS 9                    Sustainable Harvest Sector (SHS), two
                                             system. The systematic sector and vessel                sector operations plan until a complete
                                             misreporting over a long period of time                                                                       industry members, and one anonymous
                                                                                                     and successful accounting of what                     commenter.
                                             was facilitated by an internal structure                happened is provided and steps are
                                             and control by a single, dominant                       taken to ensure the sector will operate               Provisional Approval of NEFS 9
                                             participant combined with a lack of                     within its operations plan. We intend to              Operations Plan
                                             oversight. The weakness and                             work with NEFS 9 to address their
                                             vulnerability of this sector’s structure                                                                        Comment 1: NESSN commented that
                                                                                                     operations plan issues, which we expect               NMFS approval of NEFS 9 was
                                             was underscored by NEFS 9’s lack of an                  will take considerable time and will
                                             adequate response once the scope and                                                                          appropriate at that time given the
                                                                                                     require additional correspondence and                 ongoing legal proceedings against a
                                             nature of these violations were revealed.               meetings after publication of this rule.
                                             To date, there appears to be persistent                                                                       sector member and not the sector itself.
                                             non-compliance with fundamental                         Timing of Withdrawing Approval and                      Other comments from AFM, PFEX,
                                             operations plan requirements along with                 Approval                                              SHS, two industry members, and one
                                             a significantly compromised structure                      Effective November 20, 2017,                       anonymous commenter disagreed,
                                             and lack of NEFS 9 oversight. NEFS 9’s                  approval of the NEFS 9 operation plan                 stating that NEFS 9’s operations plan
                                             failures to manage its operations                       is withdrawn. The sector ACE remains                  should not have been approved for
                                             effectively appear to have led to                       allocated to NEFS 9, and this action                  Fishing Years 2017 and 2018 given the
                                             repeated ACE overages, some of which                    does not reallocate the ACE to other                  admitted crimes of NEFS 9 sector
                                             may be extensive. These overages may                    sectors or to the common pool. Without                member, Mr. Rafael. Several of these
                                             be continuing this fishing year, which                  an approved operations plan, NEFS 9 is                commenters elaborated on measures
                                             threatens to continue undermining the                   prohibited from transferring ACE to or                included in the sector operations plan
                                             sector system and its fishing mortality                 from other sectors. Vessels that were                 that the sector may not have complied
                                             and conservation controls.                              enrolled in NEFS 9 during this fishing                with or enforced after it learned of Mr.
                                                Without further information or                       year are prohibited from: (1) Fishing on              Rafael’s actions, and that the sector
                                             revisions to its operations plan, we are                a sector trip and harvesting sector ACE;              should be held accountable to the
                                             not confident that the operations plan                  (2) fishing on a common pool trip; or (3)             actions outlined in their plan. Some also
                                             contains measures that would provide                    joining another sector. If a vessel                   stated that NMFS’ actions were
                                             us with current accurate information or                 enrolled in NEFS 9 has declared a sector              inadequate in this case and that 100
                                             ensure compliance with the operations                   trip, and is at sea on November 20,                   percent monitoring for NEFS 9 may be
                                             plan to prevent and address future                      2017, it must return to port                          appropriate.
                                             misreporting or ACE overages. The                       immediately; the vessel is permitted to                 Response: We agree that, at the time,
                                             sector has not provided us with                         offload its catch for sale. Also, we will             provisional approval of the NEFS 9
                                             information of any action it has taken to               work with individual vessels that had                 operations plan was appropriate given
                                             investigate its members’ compliance                     previously set gillnet gear, to haul the              that sentencing for the criminal
                                             with the sector operations plan or any                                                                        violations was not complete and may
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                                                                                                     gear as soon as practicable. Vessels that
                                             measures to address breaches of its plan.               are able to fish under other permits,                 have provided additional information.
                                             The sector has not provided any                         without declaring a sector trip or using              In the interim final rule, we noted that
                                             information to help us corroborate the                  a multispecies day-at-sea, can continue               once sentencing is complete, we would
                                             nature and scope of the false                           to do so.                                             consider all of the available information
                                             information provided to us and its effect                  If NEFS 9 submits a new operations                 to determine whether any management
                                             on the sector’s ACEs. The sector has not                plan, we would attempt to conduct a                   action is necessary, including additional


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                                                          Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Rules and Regulations                                         55525

                                             management measures or withdrawal of                    that all his permits should be                        sector members to sell catch to Carlos
                                             NEFS 9 approval.                                        relinquished.                                         Seafood, Inc. as a primary buyer.
                                                Based on all of the available                           Response: As discussed earlier in this                Response: We acknowledge these
                                             information, and now that sentencing is                 rule, Mr. Rafael was sentenced to 46                  actions; however, they are insufficient
                                             complete, we have determined that                       months of prison, 3 years of supervised               by themselves. There are numerous
                                             NEFS 9 failed and continues to fail to                  release, assessed a $200,000 fine, and                issues that must be addressed as noted
                                             uphold the requirements of its                          required to pay $108,929 restitution. On              in this rule that we have begun to
                                             operations plan. This non-compliance                    October 11, 2017, the U.S. District Court             address with the sector. We expect to
                                             likely contributed to extensive overages                also ordered the forfeiture of Mr.                    continue to discuss these issues with
                                             of the sector’s allocation for multiple                 Rafael’s interest in four of 13 vessels               NEFS 9 during the approval process for
                                             groundfish stocks in multiple fishing                   involved in the criminal case. There                  any new operations plan.
                                             years. The degree and extent of NEFS                    may be management implications from
                                                                                                                                                           Classification
                                             9’s failure to uphold its operations plan               this forfeiture that may need to be
                                             requirements undermines the                             included in the NEFS 9 operations plan.                  The NMFS Assistant Administrator
                                             foundational principles necessary for                   We intend to discuss potential                        (AA) has determined that this interim
                                             successful sector operations. As a result,              implications, if any, with NEFS 9.                    final rule is consistent with the
                                             we determined that NEFS 9 cannot                           This is not an enforcement action, and             Northeast Multispecies FMP, other
                                             continue to operate until and unless we                 does not impose civil penalties, permit               provisions of the Magnuson-Stevens
                                             receive sufficient information                          sanctions, or forfeitures. Any civil                  Act, and other applicable law.
                                             concerning the scope and nature of the                  penalties or permit sanctions may be                     This interim final rule is exempt from
                                             operations plan breaches, actions taken                 imposed only after adequate notice and                review under Executive Order 12866
                                             by the sector in response to the breaches               an opportunity for a hearing before an                because this action contains no
                                             in accordance with operations plan                      administrative law judge in accordance                implementing regulations.
                                             requirements, and actions that will                     with NOAA’s civil procedure                              The interim final rule approving 19
                                             ensure the sector currently is operating                regulations. This rule withdrawing                    sectors, including NEFS 9, provided an
                                             in compliance with its operations plan                  approval of the NEFS 9 operations plan                opportunity for the public to comment
                                             and within its ACEs. This includes                      is administrative in nature, and                      on the provisional approval of the NEFS
                                             addressing the fraudulent catch within                  addresses the sector requirements of the              9 operations plan. The interim final rule
                                             the sector over multiple years and for                  FMP and the sector’s operations plan. If              specified that we would consider
                                             multiple stocks to ensure the sector has                NEFS 9 continues to operate under its                 further action, including consideration
                                             proper ACE allocations, which may                       current operations plan with only the                 of further management or monitoring
                                             require deducting ACE overages the                      minimal changes it has proposed, it will              requirements and continued approval of
                                             sector has incurred. We intend to work                  undermine conservation and                            the sector. Pursuant to 5 U.S.C.
                                             with NEFS 9 to address its operations                   management objectives of the FMP.                     553(b)(B), the AA finds that prior notice
                                             plan issues and will determine the                         This disapproval of the current NEFS               and the opportunity for public comment
                                             measures necessary for ensuring that the                9 operations plan in this action relates              would be contrary to the public interest.
                                             sector’s operations are appropriate and                 only to the sector operations plan and                The purpose of this action is to
                                             sufficient for accurately monitoring and                the sector’s ability to operate without               withdraw approval for a previously
                                             reporting sector catch.                                 undermining the sector system. Without                approved and currently operating
                                                Accurate reporting, accountability,                  an approved operations plan, all of the               sector. We have determined that NEFS
                                             and organizational integrity are core                   vessels currently enrolled in NEFS 9                  9 and its members are not complying
                                             principles of the sector system. In this                will be unable to operate in the                      with the requirements of the operations
                                             case, NEFS 9 failed its primary                         groundfish fishery for the remainder of               plan, and that the operations plan is not
                                             responsibilities. Systematic                            the 2017 fishing year. Unless there is an             sufficient to address the serious
                                             misreporting over multiple fishing                      additional enforcement action that                    management issues described earlier in
                                             years, a failure to abide by, and enforce,              affects the vessels’ permits, the sector              this preamble. The time it would take
                                             sector operations plan requirements,                    vessels may continue to operate in                    for prior notice and opportunity for
                                             and the internal structure of NEFS 9                    accordance with their non-groundfish                  public comment would allow the sector
                                             were all contributing factors to the                    permits. For the 2018 fishing year, these             to continue to operate under a failed
                                             persistent non-compliance of NEFS 9                     vessels could opt to fish in the common               operations plan that is not consistent
                                             operations plan requirements and likely                 pool, or enroll in a sector with an                   with the management and conservation
                                             to extensive ACE overages. Because                      approved operations plan. If NEFS 9                   objectives of the FMP. We need further
                                             NEFS 9 has not sufficiently addressed                   submits, and we approve, a new                        information to determine the full nature
                                             all of these contributing factors, its                  operations plan that addresses the                    and extent of any ACE overages and
                                             continued approval under the current                    serious management concerns discussed                 how they will affect NEFS 9 operations.
                                             operations plan is likely not adequate to               throughout this rule and that ensures                 The likely ACE overages that occurred,
                                             prevent and address continued, or                       the sector could operate without                      possibly beginning in the 2012 fishing
                                             future, misreporting, or non-compliance                 undermining the objectives of the                     year, suggest that the initial allocations
                                             by any of its members, and would                        Northeast Multispecies FMP, the vessels               made to NEFS 9 at the start of this
                                             undermine the conservation and                          could re-enroll in NEFS 9.                            fishery year may be artificially high. As
                                             management objectives of the Northeast                                                                        a result, the sector’s catch to date may
                                                                                                     Changes to NEFS 9 Operations                          already exceed what would have been
                                             Multispecies FMP.
                                                                                                       Comment 3: NEFS 9 submitted a letter                an accurate allocation for this fishing
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                                             Forfeiture of Permits Held by Carlos                    outlining the changes it made in                      year. Allowing the sector to proceed
                                             Rafael                                                  response to the pending criminal case.                without an accurate accounting of
                                               Comment 2: AFM, PFEX, and two                         NEFS 9 removed Mr. Rafael from its                    known misreporting will undermine
                                             members of the industry stated that Mr.                 Board of Directors and elected a new                  effective management of the sector
                                             Rafael should no longer be allowed to                   Board, created a new Enforcement                      program and could further undermine
                                             participate in the groundfish fishery and               Committee, and decided not to allow                   fishing mortality objectives of the FMP.


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                                             55526        Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Rules and Regulations

                                             Further, providing the participants in                  allocations that are artificially high                   This interim final rule does not
                                             the sector with advanced notice of the                  considering the potential ACE overages                contain policies with Federalism or
                                             disapproval by delaying the effective                   that have occurred since 2012. A delay                ‘‘takings’’ implications as those terms
                                             date would create an incentive for sector               in the implementation of this rule                    are defined in E.O. 13132 and E.O.
                                             members to harvest or lease out as much                 would allow the sector to continue to                 12630, respectively.
                                             of the sector’s quota as possible, while                operate under an operations plan that is
                                                                                                                                                              This interim final rule is exempt from
                                             operating under an operations plan that                 determined to have not adequately
                                             we have determined undermines the                       ensured accurate reporting or                         the procedures of the Regulatory
                                             objectives of the Northeast Multispecies                compliance, and that the sector has                   Flexibility Act because the rule is issued
                                             FMP.                                                    failed to enforce. A delay in                         without opportunity for prior notice and
                                                Additionally, the AA finds there is                  implementation would also increase the                opportunity for public comment.
                                             good cause under 5 U.S.C. 553(d)(3), to                 likelihood of additional ACE overages                   Authority: 16 U.S.C. 1801 et seq.
                                             waive the 30-day delay in effectiveness                 for NEFS 9 since its initial allocations
                                                                                                                                                             Dated: November 17, 2017.
                                             so that the purpose of this rule is not                 for the 2017 fishing year does not
                                             undermined. As stated above, the                        include any adjustments for previous                  Samuel D. Rauch III,
                                             purpose of this action is prevent a sector              overages. As a result, continued                      Deputy Assistant Administrator for
                                             from fishing under a sector operations                  operation of the sector further                       Regulatory Programs, National Marine
                                             plan that has been determined to                        jeopardizes the objectives of the FMP                 Fisheries Service.
                                             undermine the objectives of the FMP,                    and increases the likelihood that                     [FR Doc. 2017–25299 Filed 11–20–17; 8:45 am]
                                             and that may be fishing under                           additional quota overages may occur.                  BILLING CODE 3510–22–P
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Document Created: 2017-11-22 00:48:41
Document Modified: 2017-11-22 00:48:41
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionInterim final rule.
DatesApproval 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.
ContactLiz Sullivan, Fishery Policy Analyst, (978) 282-8493.
FR Citation82 FR 55522 
RIN Number0648-XF13

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