[Federal Register Volume 83, Number 140 (Friday, July 20, 2018)]
[Rules and Regulations]
[Pages 34492-34497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15477]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 180220196-8196-01]
RIN 0648-XG051


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; 2018 Sector Operations 
Plans and Allocation of Northeast Multispecies Annual Catch 
Entitlements

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

ACTION: Interim final rule; request for comments.

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SUMMARY: This interim final rule determines the quota overages that 
Northeast Fishery Sector IX is responsible for paying back, allocates 
annual catch entitlements to Northeast Fishery Sectors VII and IX for 
the 2018 fishing year, approves a new lease-only operations plan for 
Northeast Fishery Sector IX, and approves a substantive amendment to 
Northeast Fishery Sector VII operations plan. Approval of the 
operations plans and allocation of annual catch entitlements is 
necessary for the sectors to operate. This action is intended to ensure 
that these sectors are allocated accurate annual catch entitlements 
that account for past catch overages, and that the sectors' operations 
plans can achieve the conservation and management objectives of the 
Northeast Multispecies Fishery Management Plan.

DATES: Effective July 20, 2018 through April 30, 2019. Comments must be 
received on or before August 20, 2018.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2018-0069, by either of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to

[[Page 34493]]

www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0069, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Michael Pentony, Regional 
Administrator, 55 Great Republic Drive, Gloucester, MA 01930. Mark the 
outside of the envelope, ``Comments on Rulemaking for NEFS 7 and 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).
    Copies of each sector's operations plan and contract, as well as 
the programmatic environmental assessment for sectors operations in 
fishing years 2015 to 2020, are available from the NMFS Greater 
Atlantic Regional Fisheries Office (GARFO): Michael Pentony, Regional 
Administrator, National Marine Fisheries Service, 55 Great Republic 
Drive, Gloucester, MA 01930. These documents are also accessible via 
the GARFO website: https://www.greateratlantic.fisheries.noaa.gov/sustainable/species/multispecies/.

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 Northeast Multispecies 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 operations plan 
breaches and remedies, such as a penalty schedule for operations plan 
non-compliance 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.
    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 Northeast 
Fishery Sector IX (NEFS 9). Mr. Rafael admitted to falsely reporting 
catch information on dealer catch reports and vessel trip reports from 
2012 through 2015. All of the vessels involved in the misreporting 
operated under the sector operations plan for NEFS 9 during the period 
of known misreporting, were enrolled in NEFS 9 for fishing year 2017, 
and are now enrolled in Northeast Fishery Sector VII (NEFS 7) for 
fishing year 2018.
    On September 25, 2017, Mr. Rafael was sentenced to serve 46 months 
in prison and 3 years of supervised release. During his supervised 
release, he is barred from working in the fishing industry. The Court 
also ordered Mr. Rafael to pay a fine of $200,000 and forfeited Mr. 
Rafael's interests in four fishing vessels used in the criminal 
violations, including all fishing permits that NMFS issued to the four 
vessels.
    As a result of Mr. Rafael's violations, NEFS 9 was operating 
without having accurately accounted for its available ACE. Further, the 
violations revealed a failure of adequate sector oversight and 
accounting. On November 22, 2017, we published an interim final rule to 
withdraw approval of the Fishing Years 2017 and 2018 Sector Operations 
Plan for NEFS 9 (82 FR 55522). This withdrawal was a necessary 
administrative action because NEFS 9 and its participants failed to 
uphold the requirements of the sector operations plan and adequately 
respond to Mr. Rafael's violations. Without accurate catch and ACE 
accounting, effective monitoring, or internal governance, we determined 
that continuation of the sector would undermine conservation and 
management objectives of the FMP. With the disapproval of the sector's 
operation plan, the members of NEFS 9 are not allowed to fish for 
groundfish, and the sector cannot transfer quota to or from other 
sectors.
    On February 22, 2018, the NEFS 9 Board of Directors submitted a new 
sector operations plan for review and approval. The operations plan 
would allow the sector to operate as a ``lease-only'' sector. As a 
lease-only sector, NEFS 9 vessels could not actively fish for 
groundfish, but the sector would be allowed to transfer groundfish 
quota to and from other sectors. NEFS 9 vessels could continue to fish 
for other species not managed under the Northeast Multispecies FMP for 
which they have permits, such as scallops, summer flounder, and squid.
    On March 26, 2018, NEFS 7 and NEFS 9 submitted rosters for the 2018 
fishing year, indicating that 55 of the 60 permits previously enrolled 
into NEFS 9 would move into NEFS 7. Only three permits remain in NEFS 
9. Consistent with sector eligibility requirements these permits are 
issued to at least three different persons, none of whom have any 
common ownership interests in the permits, vessels, or businesses 
associated with the permits issued the other two or more persons in the 
sector. NEFS 7's submitted roster included new members enrolled with 
the condition that all permits owned by Mr. Rafael would be inactive 
and unable to fish in the groundfish fishery unless and until the 
permit was sold to an independent third party. In order to implement 
and enforce this condition, the sector requested that, until such a 
sale occurred, we withhold the letters of authorization (LOA). LOAs are 
issued to all vessel owners or operators participating in a sector and 
authorize participation in sector operations. Because this permit 
condition is a substantive change to the operations plan, it requires 
rulemaking.
    On May 1, 2018, we allocated groundfish quota to all sectors except 
NEFS 7 and NEFS 9. In that rule, we provided a summary of the NEFS 7 
and 9 roster changes, but we did not make a determination regarding 
allocations to those two sectors (83 FR 18965; May 1, 2018). Before 
making this determination, we needed more information about, and time 
to evaluate how, NEFS 7 and NEFS 9 would operate and account for the 
past overages, and notified the public that these issues would be 
included in a separate rulemaking.

NEFS 9 Overages Due to Misreported Catch

    When we withdrew approval of NEFS 9 in November 2017, the interim 
final rule stated that initial allocations made to the sector at the 
start of the 2017 fishing year were likely artificially high, and that 
it was possible that the sector's 2017 catch might have already 
exceeded what should have been allocated. Based on analysis to assess 
the stock-level

[[Page 34494]]

apportionment of the misreported catch discovered in the criminal case, 
NEFS 9 ended the 2016 fishing year with quota overages for witch 
flounder, American plaice, Georges Bank (GB) cod, and Cape Cod/Gulf of 
Maine (CC/GOM) yellowtail flounder (Tables 1 and 2). We allocated ACE 
to NEFS 9 for fishing year 2017 without any adjustments, because, at 
that time, we had not yet determined the overages caused by the 
misreported catch. Because NEFS 9 was not permitted to harvest 
groundfish after the sector operations plan was withdrawn in November, 
the sector was prevented from creating further overages, and unfished 
2017 ACE reduced or eliminated the quota overages determined from 
admissions in the criminal case. After accounting for NEFS 9's 
available 2017 ACE after operations were suspended, we determined that 
NEFS 9 ended the 2017 fishing year with a single overage of 72,224 lb 
(32.8 mt) of witch flounder. This interim final rule announces the NEFS 
9 fishing year 2017 balances for the stocks affected by the criminal 
case, as shown in Tables 1 and 2: Witch flounder, American plaice, GB 
cod, GOM cod, GB yellowtail flounder, Southern New England/Mid-Atlantic 
(SNE/MA) yellowtail flounder, and CC/GOM yellowtail flounder.

  Table 1--Summary of NEFS 9 Balances (lb) at End of Fishing Years 2016
                                and 2017
------------------------------------------------------------------------
                                          Balance at end  Balance at end
                  Stock                     of fishing      of fishing
                                             year 2016       year 2017
------------------------------------------------------------------------
Witch flounder..........................        -218,682         -72,224
American plaice.........................        -115,789          12,867
Eastern GB cod..........................           1,378          38,366
Western GB cod..........................         -14,582          56,258
GOM cod.................................           1,176          18,322
GB yellowtail flounder..................         130,589          88,674
SNE/MA yellowtail flounder..............          31,238          44,053
CC/GOM yellowtail flounder..............         -23,229          40,866
------------------------------------------------------------------------
* Negative number indicates an overage.


  Table 2--Summary of NEFS 9 Balances (mt) at End of Fishing Years 2016
                                and 2017
------------------------------------------------------------------------
                                          Balance at end  Balance at end
                  Stock                     of fishing      of fishing
                                             year 2016       year 2017
------------------------------------------------------------------------
Witch flounder..........................             -99             -33
American plaice.........................             -53               6
Eastern GB cod..........................               1              17
Western GB cod..........................              -7              26
GOM cod.................................               1               8
GB yellowtail flounder..................              59              40
SNE/MA yellowtail flounder..............              14              20
CC/GOM yellowtail flounder..............             -11              19
------------------------------------------------------------------------
* Negative number indicates an overage.

    To calculate the overages, we applied the misreported catch to the 
appropriate fishing year, as if we had known about the catch during or 
immediately following the end of each fishing year. If the misreported 
catch caused an overage in a particular fishing year, we deducted the 
overage from the sector's allocation for the next fishing year. If the 
sector carried over quota into a fishing year that it should not have, 
we removed the carryover that would not have been available had we 
known about the additional catch. Misreported catch occurred in fishing 
years 2012-2015. We applied the resulting overages from 2015 to 2016 
allocations and from 2016 to 2017 allocations. As stated earlier, NEFS 
9 ended the 2016 fishing year with multiple overages. Because we 
withdrew approval of the sector's operations plan, and NEFS 9 vessels 
have not been able to fish for groundfish since November 20, 2017, NEFS 
9 ended fishing year 2017 with an overage for witch flounder only.

Catch Apportionment Calculations

    As part of calculating the overages, we first correctly apportioned 
the misreported catch that was presented in the criminal case at a 
species level, broken down by calendar year. This required distributing 
the misreported catch into the appropriate fishing year, based on the 
landing date for trips associated with the misreported catch. Witch 
flounder and American plaice are unit stocks, and therefore, no further 
analysis was required. However, cod and yellowtail flounder are 
subdivided into management stock units. For cod, the sub-units are GOM 
and GB; GB is further divided into eastern and western GB. For 
yellowtail flounder, the sub-units are CC/GOM, GB, and SNE/MA. 
Allocating the misreported catch to stock area requires estimating the 
stock areas where the misreported catch was likely to have been caught.
    To apportion the misreported catch to the appropriate stock areas, 
we used data from the vessel monitoring systems (VMS) used by the 
vessels that were named in the criminal case to identify the most 
likely stock area from which that catch originated. We scaled the VMS 
effort by annual average catch-per-hour from observed groundfish trips 
by all sector vessels using trawl gear, to account for the different 
catch rate in different stock areas. The correctly apportioned catch by 
time and area was then applied to the allocated ACEs for the years in 
question to determine the overage amounts.

[[Page 34495]]

Sector Allocations for Fishing Year 2018 for NEFS 7 and NEFS 9

    As stated above, on May 1, 2018, we allocated groundfish quota to 
all sectors except NEFS 7 and NEFS 9 and did not make a determination 
regarding allocating to those two sectors (83 FR 18965; May 1, 2018). 
This rule allocates groundfish quota to NEFS 7 and to NEFS 9, based on 
the final sector enrollment submitted by the sectors and the fishing 
year 2018 specifications approved through Framework 57 (83 FR 18985; 
May 1, 2018). These allocations use updated rosters and are slightly 
different from the rule that proposed allocations for all sectors (83 
FR 12706; March 23, 2018), which used the fishing year 2017 sector 
rosters as a basis to estimate fishing year 2018 sector allocations.
    Consistent with how ACE is allocated to all other sectors, we 
calculate the sector's allocation for each stock by summing its 
members' potential sector contributions (PSC) for a stock and then 
multiplying that total percentage by the available commercial sub-
annual catch limit (sub-ACL) for that stock. Table 3 shows the 
projected total PSC for each sector by stock for fishing year 2018. 
Table 4 shows an estimate of the allocations that each sector is 
allocated, in pounds and metric tons, respectively, for fishing year 
2018.

            Table 3--Cumulative PSC (Percentage) for NEFS 7 and NEFS 9 by Stock for Fishing Year 2018
----------------------------------------------------------------------------------------------------------------
                            Species                                      NEFS 7                   NEFS 9
----------------------------------------------------------------------------------------------------------------
GB Cod........................................................        13.20690936349290       0.0362859749871986
GOM Cod.......................................................         3.01910742037318       0.0000000000000000
GB Haddock....................................................         11.2685073680510       0.0259765497865176
GOM Haddock...................................................         7.40318927053197       0.0000000000000000
GB Yellowtail Flounder........................................        25.51455362936140       0.0275501100708375
SNE/MA Yellowtail Flounder....................................         8.53317090461840       0.0000000000000000
CC/GOM Yellowtail Flounder....................................        10.56678059758250       0.0118856525483093
Plaice........................................................         9.61237900717373       0.0013210183240834
Witch Flounder................................................         9.33559754356342       0.0000000000000000
GB Winter Flounder............................................        33.29143002089540       0.0883620482300341
GOM Winter Flounder...........................................         2.94812548603488       0.0000000000000000
SNE/MA Winter Flounder........................................        17.56207969721130       0.0107895691382281
Redfish.......................................................         9.05128922223861       0.0000000000000000
White Hake....................................................         6.37760020543757       0.0000000000000000
Pollock.......................................................         6.34572003847383       0.0007489254483443
----------------------------------------------------------------------------------------------------------------


        Table 4--Estimated ACE for NEFS 7 and NEFS 9 (in mt and 1,000 lb) by Stock for Fishing Year 2018
----------------------------------------------------------------------------------------------------------------
                                                              NEFS 7                          NEFS 9
                                                 ---------------------------------------------------------------
                     Species                        Sector ACE      Sector ACE      Sector ACE      Sector ACE
                                                       (mt)         (1,000 lb)         (mt)         (1,000 lb)
----------------------------------------------------------------------------------------------------------------
GB Cod East.....................................              34              75               0               0
GB Cod West.....................................             124             273               0               1
GOM Cod.........................................              11              24               0               0
GB Haddock East.................................           1,758           3,875               4               9
GB Haddock West.................................           3,274           7,219               8              17
GOM Haddock.....................................             647           1,426               0               0
GB Yellowtail Flounder..........................              43              95               0               0
SNE/MA Yellowtail Flounder......................               4               8               0               0
CC/GOM Yellowtail Flounder......................              42              93               0               0
Plaice..........................................             152             335               0               0
Witch Flounder..................................              77             171               0               0
GB Winter Flounder..............................             243             536               1               1
GOM Winter Flounder.............................              11              23               0               0
SNE/MA Winter Flounder..........................              91             201               0               0
Redfish.........................................             973           2,146               0               0
White Hake......................................             174             385               0               0
Pollock.........................................           2,373           5,232               0               1
----------------------------------------------------------------------------------------------------------------

    Based on regulations at Sec.  648.87(b)(1)(iii), should an ACE 
allocated to a sector be exceeded in a given fishing year, the sector's 
ACE shall be reduced by the overage on a pound-for-pound basis during 
the following fishing year. If a sector has an overage, but disbands in 
the year following the overage, the overage follows the permits to the 
new sector(s) or to the common pool. If the sector does not disband, 
but does not have sufficient ACE to pay back the overage, the sector's 
ACE for that stock is set to zero until the sector can acquire 
sufficient ACE to cover the remaining overage.
    Therefore, if NEFS 9 has remaining overages from fishing year 2017, 
following any transfers conducted during a 2-week transfer window after 
all year-end catch accounting is complete (see section on NEFS 9 
Operations Plan for more detail), NEFS 9's 2018 ACE would be reduced by 
the overage on a pound-for-pound basis. However, because the permits 
enrolled in NEFS 9 for 2018 have zero PSC for witch flounder, the 
sector would be allocated zero pounds of witch flounder. Therefore, if 
the sector has a remaining overage from fishing year 2017, it would 
begin fishing year 2018 with a negative balance of witch flounder. The 
Board of NEFS 7 has agreed that if the NEFS 9 overage cannot be 
reconciled during the post-year transfer window, NEFS 7 will

[[Page 34496]]

transfer sufficient 2018 witch flounder ACE to NEFS 9 to cover the 
remaining overage. This commitment is included in the amendment to the 
NEFS 7 operations plan, as described later in this preamble.

NEFS 9 Sector Operations Plan

    In this interim final rule, we are approving NEFS 9's sector 
operations plan and contract to operate as a lease-only sector. When 
the Regional Administrator withdrew approval of the NEFS 9 operations 
plan in November 2017, we cited accurate reporting, internal 
accountability, and organizational integrity as core principles of the 
sector system that were lacking in NEFS 9, as evidenced by the 
systematic and long-term sector and vessel misreporting. The operations 
plan was withdrawn, in part, because it did not contain measures that 
would provide accurate information or ensure compliance with the 
operations plan to prevent and address future misreporting or ACE 
overages. Restricting the sector to only being able to participate in 
the groundfish fishery through ACE transfers with other sectors 
addresses our concerns about the sector's ability to harvest groundfish 
and monitor and report that activity, consistent with the goals and 
objectives of the FMP. As a lease-only sector, NEFS 9 vessels cannot 
actively fish for groundfish, but the sector is allowed to transfer 
groundfish quota to and from other sectors, which will facilitate the 
sector's accounting for its ACE and overages. Based on this, we have 
determined that the lease-only sector operations plan and contract is 
consistent with the FMP's goals and objectives, and meets sector 
requirements outlined in the regulations at Sec.  648.87.
    The lease-only operations plan is a change from the previous 
operations plan for NEFS 9, for which the Regional Administrator 
withdrew approval. However, it is similar to the currently approved 
operations plan for NEFS 4, which also operates as a lease-only sector. 
An approved lease-only operations plan provides NEFS 9 with the ability 
to pay back the quota overage incurred by misreported catch. Without a 
new operations plan, NEFS 9 has no mechanism for reconciling the 
overages for which it is responsible. In April 2018, we consulted with 
the New England Fishery Management Council regarding NEFS 9, and the 
Council passed a motion to recommend that NMFS authorize the NEFS 9 
lease-only operations plan to ensure the repayment of the NEFS 9 
overage, as well as amend the NEFS 7 operations plan as needed and 
appropriately allocate to the sectors.
    Because this interim final rule approves a lease-only sector 
operations plan for NEFS 9, the sector has the ability to eliminate the 
overage by transferring quota in from other sectors. We will allow NEFS 
9 to transfer fishing year 2017 ACE for 2 weeks upon our completion of 
year-end catch accounting for all sectors to reduce or eliminate any 
fishing year 2017 overages. As provided by the regulations, this window 
of post-year transfers is opened annually. During this time, sectors 
are only allowed to transfer in quota to reconcile an overage. Quota 
for stocks that do not have an overage may not be transferred.

NEFS 7 Amendment to Operations Plan

    In this interim final rule, we are approving an amendment to the 
NEFS 7 sector operations plan. As described above, on March 26, 2018, 
NEFS 7 submitted a roster for the 2018 fishing year, indicating that 55 
of the 60 permits previously enrolled into NEFS 9 would move into NEFS 
7, in addition to one vessel from NEFS 8. No vessels that had been 
enrolled in NEFS 7 for the 2017 fishing year remained in NEFS 7 for 
2018. All 56 vessels enrolled in NEFS 7 for 2018 are listed as 
inactive. The NEFS 7 Board of Directors voted, as part of its process 
to allow vessels to enroll in the sector, to add a permit condition 
requiring all permits in which Mr. Rafael has an ownership interest to 
remain inactive and unable to fish in the groundfish fishery unless and 
until the permit is sold to an independent third party. By approving 
this permit condition as part of the NEFS 7 operations plan (along with 
the quota allocations described earlier), NEFS 7 is able to transfer 
ACE to and from other sectors in the 2018 fishing year, but vessels 
owned by Mr. Rafael cannot actively fish for groundfish.
    All of the vessels that are enrolled in NEFS 7 and in which Mr. 
Rafael has no ownership interest are currently listed as inactive 
members of the sector. To become active, the sector Board would have to 
vote to allow a vessel to harvest sector ACE, consistent with normal 
sector operations, and notify NMFS of the vessel change in status. In 
contrast to the vessels owned by Mr. Rafael, these vessels do not need 
to be sold in order to be active in the groundfish fishery.
    To facilitate and enforce the requirement for a vessel owned by Mr. 
Rafael to be sold to an independent third party before it could become 
active, the Board initially requested that we withhold LOAs for those 
permits until a permit is sold to an independent third party, the new 
member requests in writing that the Board reconsider non-active status, 
and the NEFS 7 Board grants active status to the new member. However, 
current regulations at Sec.  648.87(c)(2) state that, if a sector is 
approved, the Regional Administrator shall issue an LOA to each vessel 
operator and/or vessel owner participating in the sector, authorizing 
participation in the sector operations. The regulations allow the 
Regional Administrator to include requirements and conditions necessary 
to ensure effective administration and compliance with the sector's 
operations plan and the sector allocation. Therefore, the NEFS 7 
amendment includes clarification that we will issue LOAs to vessels 
indicating that they are inactive. If the required steps are taken for 
a vessel to become active, we will issue a new LOA authorizing 
participation in the groundfish fishery.
    NEFS 7's initial proposal did not identify the factors by which the 
Board would determine the new owner is independent of Mr. Rafael. 
Historically, NMFS uses several factors to determine whether a transfer 
or sale of a permit appears to be between separate legal entities. 
These include, but are not limited to: Whether the transfer appears to 
be an ``arm's length'' transaction to an independent person or entity 
in which the current owner, subsidiary, partner, officer, director, 
trustee, shareholder or any of their family members does not have any 
financial interest or any control; whether the transferor/seller derive 
any financial benefits from the operations of the vessel after it is 
transferred; whether the transferor/seller exercises any control over 
the activities or operation of the vessel after it is transferred; and 
whether there are any common shareholders, partners, or investors with 
significant overlapping ownership interests in both the transferor/
seller and the transferee/buyer. The NEFS 7 Board of Directors has 
incorporated these factors into the amendment to the NEFS 7 operations 
plan as conditions for Board approval of new owners to provide 
sufficient Board oversight controls and avoid confusion regarding 
whether a sale meets the requirement of being an independent third 
party.
    As stated earlier in this preamble, the Board of NEFS 7 has 
committed that if the NEFS 9 overage cannot be reconciled during the 
2017 post-year transfer window, NEFS 7 will transfer sufficient 2018 
witch flounder ACE to NEFS 9 to cover the overage, and this is included 
in the amendment to the NEFS 7 operations plan.
    The NEFS 7 operations plan amendment addresses the operational

[[Page 34497]]

issues that required withdrawal of the prior NEFS 9 operations plan. 
Approval of an operations plan that provides for paying back all of the 
overages incurred by vessels in NEFS 9 ensures that the sector is 
operating properly within the sector system and within all ACE that is 
properly allocated. The vertical integration between Mr. Rafael's 
vessels, his seafood dealership, and sector governance that facilitated 
the falsification of landing records would no longer exist with new 
independent vessel owners.
    These changes to the operations plan meet the goals and objectives 
of the FMP and the sector system. We will evaluate any changes made to 
NEFS 7 and 9 membership and vessel ownership, using the criteria 
detailed above, to ensure the sector's operations remain consistent 
with its operations plan and the goals and objectives of the FMP. 
Additional substantive changes to the NEFS 7 operations plan that are 
requested, or determined to be necessary, would be addressed in a 
future rulemaking.

Classification

    The NMFS Assistant Administrator has preliminarily 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 the procedures of Executive 
Order (E.O.) 12866 because this action contains no implementing 
regulations.
    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.
    Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for 
Fisheries (AA) finds good cause to waive prior notice and the 
opportunity for public comment on approval of the NEFS 9 lease-only 
operations plan, and approval of the amendment to the NEFS 7 operations 
plan because it would be contrary to the public interest. Additionally, 
the AA finds there is good cause, under 5 U.S.C. 553(d)(1) and (3), to 
waive the 30-day delay in effectiveness for the allocation of annual 
catch entitlements (ACE) for fishing year 2018 to NEFS 7 and 9, 
approval of the NEFS 9 lease-only operations plan, and approval of the 
amendment to the NEFS 7 operations plan so that the purpose of this 
rule is not undermined.
    Approving the NEFS 9 lease-only operations plan relieves the 
prohibition against operating and provides a mechanism for NEFS 9 to 
reconcile its witch flounder overage through the 2017 year-end transfer 
window and address its quota overage for witch flounder. Any overage 
remaining after this transfer window must be reconciled via an ACE 
transfer from NEFS 7, in order for NEFS 7 to remain in compliance with 
the operations plan amendment approved by this rule. As a result, 
implementing these measures immediately ensures that proper catch and 
ACE accounting occur. This is fundamental to achieving the goals and 
objectives of the FMP.
    We previously proposed and accepted comment on allocating 
groundfish quota to NEFS 7 and 9 (83 FR 12706; March 23, 2018). 
Additionally, before taking this action, we consulted with the New 
England Council at its April 2018 meeting, at which the Council 
recommended that we approve the sectors' operations plan requests. This 
consultation provided the Council and interested members of the public 
an opportunity to comment on NEFS 7's and 9's potential operations plan 
changes and an additional opportunity to comment on the allocation of 
quota to both sectors. At this meeting, the Council recommended that we 
ensure the repayment of the NEFS 9 overage, approve the NEFS 9 lease-
only operations plan, amend the NEFS 7 operations plan as needed, and 
appropriately allocate to the sectors. The Council also explained the 
importance of making quota available to the fishery at-large. Some 
stocks, such as Georges Bank winter flounder, have a significant 
seasonal component, and therefore there is additional benefit to making 
this quota available to the fishery as a whole as soon as possible.
    The ACEs being allocated to NEFS 7 and 9 represent between 3 
percent and 33 percent of the total quota for each allocated stock. 
Continuing to withhold this amount of quota from the fishery 
significantly hampers the ability of the fishery as a whole to operate. 
This quota is particularly important due to recent stock assessments 
that resulted in reduced overall quotas for several stocks, including 
Southern New England/Mid-Atlantic yellowtail flounder (75-percent 
reduction), Gulf of Maine winter flounder (45-percent reduction), and 
white hake (20-percent reduction). Further delaying allocations to NEFS 
7 and NEFS 9 significantly reduces the quota for these stocks available 
for transfer to other sectors engaged in fishing. This reduces catch of 
these as target stocks and also impacts catch of more abundant stocks 
like haddock and pollock, which catch these limiting stocks as bycatch. 
This, together with the benefit of ensuring that all quota overages 
that resulted from Mr. Rafael's criminal misreporting are reconciled, 
outweigh the benefits of allowing for additional public comment prior 
to effectiveness, beyond that which we already received on the March 
23, 2018, proposed rule (83 FR 12706) and through consultation with the 
Council.
    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: July 16, 2018.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2018-15477 Filed 7-19-18; 8:45 am]
BILLING CODE 3510-22-P