34492 Federal Register / Vol. 83, No. 140 / Friday, July 20, 2018 / Rules and Regulations 

which the applicant proposes to 

operate. 

(b) Any U.S. licensee or permittee 

authorized to transmit in the 17.3–17.8 

GHz band that does not comply with the 

power flux-density limits set forth in 

§ 25.208(c) and/or § 25.208(w) shall bear 

the burden of coordinating with any 

future co-frequency licensees and 

permittees of a space station 

transmitting in the 17.3–17.8 GHz band 

under the following circumstances: 

(1) If the operator’s space-to-Earth 

power flux-density levels exceed the 

power flux-density limits set forth in 

§ 25.208(c) and/or § 25.208(w) by 3 dB 

or less, the operator shall bear the 

burden of coordinating with any future 

operators proposing a space station 

transmitting in the 17.3–17.8 GHz band 

in compliance with power flux-density 

limits set forth in § 25.208(c) and/or 

§ 25.208(w) and located within ±6 

degrees of the operator’s 17/24 GHz BSS 

space station. 

(2) If the operator’s space-to-Earth 

power flux-density levels exceed the 

power flux-density limits set forth in 

§ 25.208(c) and/or § 25.208(w) by more 

than 3 dB, the operator shall bear the 

burden of coordinating with any future 

operators proposing a space station 

transmitting in the 17.3–17.8 GHz band 

in compliance with power flux-density 

limits set forth in § 25.208(c) and/or 

§ 25.208(w) and located within ±10 

degrees of the operator’s space station. 

(3) If no good faith agreement can be 

reached, the operator of the space 

station transmitting in the 17.3–17.8 

GHz band that does not comply with 

§ 25.208(c) and/or § 25.208(w) shall 

reduce its space-to-Earth power fluxdensity levels to be compliant with 

those specified in § 25.208(c) and/or 

§ 25.208(w). 

(c) Any U.S. licensee or permittee 

using a space station transmitting in the 

17.3–17.8 GHz band that is required to 

provide information in its application 

pursuant to § 25.140(b)(4) must accept 

any increased interference that may 

result from adjacent space stations 

transmitting in the 17.3–17.8 GHz band 

that are operating in compliance with 

the rules for such space stations 

specified in §§ 25.140(b), 25.202(a)(9) 

and (e)–(g), 25.208(c) and (w), 25.210(i)– 

(j), 25.224, 25.262, 25.264(h), and 

25.273(a)(3)). 

(d) Notwithstanding the provisions of 

this, licensees and permittees will be 

allowed to apply for a license or 

authorization for a replacement satellite 

that will be operated at the same power 

level and interference protection as the 

satellite to be replaced. 

PART 30—UPPER MICROWAVE 

FLEXIBLE USE SERVICE 

■ 17. The authority citation for part 30 

continues to read as follows: 

Authority: 47 U.S.C. 151, 152, 153, 154, 

301, 303, 304, 307, 309, 310, 316, 332, 1302. 

■ 18. Amend § 30.104 by revising the 

section heading, redesignating 

paragraphs (b) through (e) as paragraphs 

(c) through (f), adding new paragraph 

(b), and revising newly redesignated 

paragraphs (c), (e), and (f) to read as 

follows: 

§ 30.104 Performance requirements. 

* * * * * 

(b) In the alternative, a licensee may 

make its buildout showing on the basis 

of geographic area coverage. To satisfy 

the requirements of using this metric, 

licensees relying on mobile or point-tomultipoint service must show that they 

are providing reliable signal coverage 

and service to at least 25% of the 

geographic area of the license. The 

geographic area of the license shall be 

determined by the total land area of the 

county or counties covered by the 

license. Licensees relying on fixed 

point-to-point links or other, low-power 

point-to-point connections must show 

that they have deployed at least one 

transmitter or receiver in at least 25% of 

the census tracts within the license area. 

All equipment relied upon in the 

showing, whatever type of service or 

connection it provides, must be 

operational and providing service, 

either to customers or for internal use, 

as of the date of the filing. 

(c) Showings that rely on a 

combination of multiple types of service 

will be evaluated on a case-by-case 

basis. Licensees may not combine 

population-based showings with 

geographic area-based showings. 

* * * * * 

(e) Failure to meet this requirement 

will result in automatic cancellation of 

the license. In bands licensed on a 

Partial Economic Area basis, licensees 

will have the option of partitioning a 

license on a county basis in order to 

reduce the population or land area 

within the license area to a level where 

the licensee’s buildout would meet one 

of the applicable performance metrics. 

(f) Existing 24 GHz, 28 GHz and 39 

GHz licensees shall be required to make 

a showing pursuant to this section by 

June 1, 2024. 

■ 19. Revise § 30.208 to read as follows: 

§ 30.208 Operability. 

Mobile and transportable stations that 

operate on any portion of frequencies 

within the 27.5–28.35 GHz or the 37–40 

GHz bands must be capable of operating 

on all frequencies within those 

particular bands. Mobile and 

transportable stations that operate on 

any portion of either the 24.25–24.45 

GHz or 24.75–25.25 GHz bands must be 

capable of operating on all frequencies 

within both of those bands. 

[FR Doc. 2018–14806 Filed 7–19–18; 8:45 am] 

BILLING CODE 6712–01–P 

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. 

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 


daltland on DSKBBV9HB2PROD with RULES
Federal Register / Vol. 83, No. 140 / Friday, July 20, 2018 / Rules and Regulations 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 ‘‘leaseonly’’ 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 


daltland on DSKBBV9HB2PROD with RULES
34494 Federal Register / Vol. 83, No. 140 / Friday, July 20, 2018 / Rules and Regulations 

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 

Stock 

Balance at 

end of 

fishing year 

2016 

Balance at 

end of 

fishing 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 

Stock 

Balance at 

end of 

fishing year 

2016 

Balance at 

end of 

fishing 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 subunits 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-perhour 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. 


daltland on DSKBBV9HB2PROD with RULES
Federal Register / Vol. 83, No. 140 / Friday, July 20, 2018 / Rules and Regulations 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 

Species 

NEFS 7 NEFS 9 

Sector ACE 

(mt) 

Sector ACE 

(1,000 lb) 

Sector ACE 

(mt) 

Sector ACE 

(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 

§ 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 


daltland on DSKBBV9HB2PROD with RULES
34496 Federal Register / Vol. 83, No. 140 / Friday, July 20, 2018 / Rules and Regulations 

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 leaseonly 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 § 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 nonactive status, and the NEFS 7 Board 

grants active status to the new member. 

However, current regulations at 

§ 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 


daltland on DSKBBV9HB2PROD with RULES
Federal Register / Vol. 83, No. 140 / Friday, July 20, 2018 / Rules and Regulations 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 


daltland on DSKBBV9HB2PROD with RULES