[Federal Register Volume 69, Number 208 (Thursday, October 28, 2004)]
[Proposed Rules]
[Pages 62844-62846]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24104]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 041018283-4283-01; I.D. 102204C]
RIN 0648-AS81


Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act) Provisions; Fisheries of the Northeastern United 
States; Northeast (NE) Multispecies Fishery

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

ACTION: Proposed interim rule; request for comments.

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SUMMARY: NMFS proposes to implement the days-at-sea (DAS) allocation 
procedure contained in the final rule implementing Amendment 13 to the 
NE Multispecies Fishery Management Plan (FMP) under Magnuson-Stevens 
Act interim rule authority. This DAS allocation procedure established a 
DAS baseline allocation based on historic participation in the NE 
multispecies DAS fishery. The proposed rule to implement Amendment 13 
did not include an explicit provision that would have capped a vessel's 
annual DAS usage at the vessel's DAS allocation prior to August 1, 
2002, the annual DAS allocation for the 2001 fishing year (May 1, 2001 
- April 30, 2002). To rectify the omission of the DAS usage cap in the 
proposed rule, NMFS added language to include the cap in the regulatory 
text of the final rule implementing Amendment 13 to ensure that the DAS 
baseline procedure complied with NMFS' understanding of the New England 
Fishery Management Council's (Council) intent. To address the fact that 
the public was not provided with the opportunity to comment on the DAS 
usage cap, NMFS proposes to implement the DAS allocation procedure 
including the cap, as an interim rule through proposed and final 
rulemaking so as to provide opportunity for public comment consistent 
with the Administrative Procedure Act (APA).

DATES: Comments must be received on or before 5 P.M., local time, 
November 12, 2004.

ADDRESSES: Written comments on the proposed interim rule may be 
submitted by any of the following methods:
     E-mail: E-mail comments may be submitted to 
[email protected]. Include in the subject line the following: 
``Comments on the Proposed Interim Rule for the DAS Allocation 
Procedure.''
     Federal e-Rulemaking Portal: http://www.regulations.gov
     Mail: Comments submitted by mail should be sent to 
Patricia A. Kurkul, Regional Administrator (RA), Northeast Region, 
NMFS, One Blackburn Drive, Gloucester, MA 01930-2298. Mark the outside 
of the envelope ``Comments on the Proposed Interim Rule for the DAS 
Allocation Procedure.''
     Facsimile (fax): Comments submitted by fax should be faxed 
to (978) 281-9135.
    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) for 
this action, which is contained in the Classification section of this 
proposed interim rule.
    Copies of the Final Supplemental Environmental Impact Statement 
(FSEIS) and Regulatory Impact Review (RIR) prepared for Amendment 13 
and supporting this action are available from Paul J. Howard, Executive 
Director, New England Fishery Management Council, 50 Water Street, The 
Tannery Mill 2, Newburyport, MA 01950. The FSEIS

[[Page 62845]]

and RIR are also accessible via the internet at http://www.nefmc.org/nemulti/.

FOR FURTHER INFORMATION CONTACT: Allison Ferreira, Fishery Policy 
Analyst, (978) 281-9103, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    Amendment 13 to the FMP was developed by the Council to end 
overfishing and rebuild NE multispecies stocks managed under the 
authority of the Magnuson-Stevens Act. One of the management strategies 
used in Amendment 13 to achieve these objectives was to identify and 
then reduce effective effort. Effective effort is the number of DAS 
that are actually fished by fishing vessels in contrast to the number 
of DAS that are allocated. To reduce effective effort, Amendment 13 
established a new DAS baseline allocation for individual vessels based 
on recent participation in the NE multispecies DAS fishery, and then 
reduced the number of DAS available to achieve a target fishing 
mortality level. The final rule implementing Amendment 13 became 
effective on May 1, 2004 (69 FR 22906).
    The proposed rule for Amendment 13 (69 FR 4362, January 29, 2004) 
stated that a vessel's DAS baseline allocation would be determined by 
the highest number of reported DAS fished during a single qualifying 
fishing year in which the vessel landed at least 5,000 lb (2,268 kg) of 
regulated multispecies during the 6-year period from May 1, 1996, 
through April 30, 2002. The proposed rule did not include an explicit 
provision, however, that would have capped a vessel's annual DAS usage 
at the vessel's annual DAS allocation prior to August 1, 2002; that is, 
the vessel's DAS allocation during the 2001 fishing year. NMFS 
determined, before publishing the final rule to implement Amendment 13, 
that it was the intent of the Council to include such a cap on DAS 
usage, even though the Amendment 13 document did not include explicit 
language referring to the cap. This determination was based, in part, 
on the fact that Amendment 13 and its FSEIS analyzed the DAS baseline 
allocation calculation assuming that a vessel's DAS usage was capped at 
its DAS allocation for the 2001 fishing year. The FSEIS also assumed 
the cap would exclude carryover DAS from consideration in the 
calculation of a vessel's DAS baseline allocation. This analysis was 
used as the baseline level of DAS from which DAS reductions were 
calculated in order to limit the total number of Category A DAS to a 
level that was likely to meet the Amendment 13 fishing mortality 
objectives. To implement the final rule without an explicit cap would 
have been inconsistent with the Council's stated objective of reducing 
DAS to a level necessary to meet fishing mortality objectives. 
Therefore, NMFS added explicit regulatory language to include the cap 
in the final rule implementing Amendment 13 to ensure consistency with 
the intent of the Council, as NMFS understood that intent.
    The validity of the DAS usage cap provision in the final rule 
implementing Amendment 13 has been called into question by certain 
members of the fishing industry because NMFS added the cap language to 
the regulatory text at the final rule stage, without giving the public 
an opportunity to comment on the new regulatory language, and because 
there was no explicit language in Amendment 13 referring to a cap on 
DAS usage. To address any concerns that the DAS usage cap provision may 
have been promulgated without a full opportunity for public comment and 
to avoid any possibility of the cap being invalidated in mid-fishing 
year, this action proposes to establish the DAS baseline allocation 
procedure that had been included in the final rule implementing 
Amendment 13 to the FMP as an interim rule under the authority of 
section 305(c) of the Magnuson-Stevens Act. Section 305(c) of the 
Magnuson-Stevens Act provides that the Secretary of Commerce may 
implement an interim rule on a temporary basis to reduce overfishing. 
If the cap were removed through the above mentioned legal challenge, 
then the total number of allocated DAS would increase, as more fully 
discussed in the IRFA discussion below, by 8.9 percent over the current 
allocation, thereby significantly increasing the possibility of 
overfishing. To avoid this increased possibility of overfishing, this 
interim rule is necessary and justified under the Magnuson-Stevens Act. 
Moreover, it provides the public an opportunity to comment on the 
inclusion of the cap.
    This interim rule would establish a definition of the DAS baseline 
allocation identical to the Amendment 13 final rule. Therefore, no 
change in the regulatory language would be required to implement the 
final interim rule.
    This proposed interim rule, if adopted, would ensure that the DAS 
usage cap is in place for the entire 2004 fishing year (May 1, 2004 - 
April 31, 2005), leaving the existing 2004 DAS allocations unchanged. 
In the meantime, the Council is developing a framework adjustment 
action (Framework 40-B to the FMP) that would implement, on a permanent 
basis, its current intent concerning the inclusion of the DAS usage cap 
in the DAS baseline allocation procedure. It is anticipated that, if 
approved, Framework 40-B will become effective May 1, 2005.

Classification

    NMFS determined that the proposed interim rule is consistent with 
the FMP and preliminarily determined that the rule is consistent with 
the Magnuson-Stevens Act and other applicable laws.
    The proposed action would implement the DAS allocation procedure 
adopted in the final rule implementing Amendment 13, but not explicitly 
recommended in that amendment. The impacts of this DAS allocation 
procedure were thoroughly analyzed in the FSEIS prepared for Amendment 
13. Specifically, the biological impacts were analyzed in sections 
5.2.5.6, 5.2.6.1, and 5.2.8.4, the economic impacts were analyzed in 
section 5.4.9.4.5, the social impacts were analyzed in section 
5.6.2.2.1.1, and the cumulative impacts were analyzed in section 
5.7.7.2 of the FSEIS. A notice of availability for the FSEIS prepared 
for Amendment 13 was published in the Federal Register on February 6, 
2004 (69 FR 5856), with a 30-day cooling off period. NMFS decided to 
partially approve Amendment 13 on March 18, 2004, and, in the record of 
decision (ROD) signed on March 18, 2004, concluded that all practicable 
means to avoid, minimize, or compensate for environmental harm 
resulting from the measures contained in the amendment had been 
adopted. This action would not change the DAS allocation procedure 
implemented in the final rule for Amendment 13 and analyzed in 
Amendment 13 FSEIS, but establish it through the proposed rulemaking 
process in order to afford the public an opportunity to comment on the 
procedure. Therefore, because this action does not change the 
determinations made in the FSEIS for Amendment 13 and in the 
corresponding ROD, further environmental review under the National 
Environmental Policy Act is not necessary.
    Pursuant to the procedures established to implement section 6.0 of 
Executive Order 12866, the Office of Management and Budget has 
determined that this proposed interim rule is not significant.
    NMFS prepared an IRFA, as required by section 603 of the Regulatory 
Flexibility Act, that describes the economic impact this proposed rule, 
if adopted, would have on small entities.

[[Page 62846]]

 A description of the action, why it is being considered and the legal 
basis for the action are contained in the preamble to this proposed 
interim rule. This proposed interim rule does not duplicate, overlap, 
or conflict with any relevant Federal rules. The universe of small 
entities to which this rule would apply is contained in the IRFA of the 
proposed rule implementing Amendment 13 and is not repeated here. This 
rule would not impose any additional reporting, recordkeeping or other 
compliance requirements that are not already in existence as a result 
of the final rule implementing Amendment 13.
    As mentioned above, this proposed interim rule is being promulgated 
under the authority of section 305(c) of the Magnuson-Stevens Act. The 
proposed rule to implement Amendment 13 omitted the DAS usage cap from 
the DAS baseline procedures, but NMFS added regulatory language to the 
Amendment 13 final rule to implement such a cap. This action would 
establish the DAS baseline allocation procedure contained in the 
Amendment 13 final rule consistent with the rulemaking procedures set 
forth under the APA.
    Two alternatives were considered for purposes of the initial 
regulatory flexibility analysis: (1) the groundfish fishery without a 
DAS usage cap for the 2004 fishing year; and (2) a DAS usage cap as 
analyzed in Amendment 13. The analysis suggests that the lack of a DAS 
usage cap would increase the number of Category A DAS by 8.9 percent 
(approximately 3,900 A DAS) over the original allocation of A DAS under 
Amendment 13. The allocation of A DAS would therefore rise to 
approximately 47,689 days from the present level of 43,773 days. This 
increase in A DAS would benefit 390 vessels with an average increase of 
10.8 A DAS (ranging from 0.02 to 52.69 A DAS) per vessel. Amendment 13 
analyzed the average daily returns by vessel category and concluded 
that average daily returns while fishing on a DAS would range from 
$1,139 to $2,683 depending on the vessel category. Assuming that 
additional A DAS were re-allocated to the fishery, individual vessels 
may realize these net returns. However, net returns may not be uniform 
within each vessel category because of the variation in number of A DAS 
that would be expected to return to the fishery (i.e., 0.02 to 52.69 A 
DAS). Individual vessels would also need to consider other variables in 
combination with their allocated A DAS to determine the likelihood of 
exact changes in vessel profitability. The preferred alternative as 
analyzed within Amendment 13 assumes the DAS usage cap is in place and 
the NE multispecies fishery is operating based on the DAS allocation 
procedure specified in the final rule for Amendment 13. In this case, 
the establishment of a DAS usage cap, as set forth in the final rule, 
would neither affect the costs of current fishing operations for 
individual vessels, nor would it impose any additional compliance costs 
on NE groundfish vessels. DAS allocations to individual vessels would 
remain unchanged, giving each vessel the same opportunity to earn 
revenues as they exist in the present fishery. In addition, there would 
be no change to individual vessel profitability resulting from the 
maintenance of the present DAS schedule. Furthermore, the NE 
multispecies fleet has been operating under a DAS usage cap for the 
past two years as a result of a series of interim and emergency actions 
taken by NMFS resulting from the Conservation Law Foundation v. Evans 
litigation (67 FR 50292, August 1, 2002; 68 FR 2919, January 22, 2003; 
and 68 FR 38234, June 27, 2003). Individual vessels have received 
reduced DAS allocations based on this cap and have already experienced 
economic impacts that would be similar to those resulting from the 
existence of the DAS usage cap for the 2004 fishing season.
    Implementing the preferred alternative (i.e., capping the DAS 
baseline at a vessel's 2001 allocation) is critical in order to be 
consistent with the intent of the Council's goal of fishing capacity 
reduction. Allowing vessels to have a baseline DAS allocation that 
exceeds the level of recent historic allocation is counter to the 
stated goal of Amendment 13's alternatives to control capacity. The 
non-preferred alternative would also have the potential of slowing 
rebuilding efforts and would lead to additional DAS reductions in 
future years, thus resulting in greater adverse economic impacts. 
Finally, operating the fishery without a DAS usage cap and inserting 
the extra effort back into the fishery would not be consistent with 
Amendment 13 and the goals and objectives the Magnuson-Stevens Act and 
its national standards.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: October 22, 2004
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.
    2. In Sec.  648.82, paragraph (c)(1) introductory text is 
republished to read as follows:


Sec.  648.82  Effort-control program for NE multispecies limited access 
vessels.

* * * * *
    (c) Used DAS baseline--(1) Calculation of used DAS baseline. For 
all valid limited access NE multispecies DAS vessels, vessels issued a 
valid small vessel category permit, and NE multispecies Confirmation of 
Permit Histories, beginning with the 2004 fishing year, a vessel's used 
DAS baseline shall be based on the fishing history associated with its 
permit and shall be determined by the highest number of reported DAS 
fished during a single qualifying fishing year, as specified in 
paragraphs (c)(1)(i) through (iv) of this section, during the 6-year 
period from May 1, 1996, through April 30, 2002, not to exceed the 
vessel's annual allocation prior to August 1, 2002. A qualifying year 
is one in which a vessel landed 5,000 lb (2,268 kg) or more of 
regulated multispecies, based upon landings reported through dealer 
reports (based on live weights of landings submitted to NMFS prior to 
April 30, 2003). If a vessel that was originally issued a limited 
access NE multispecies permit was lawfully replaced in accordance with 
the replacement restrictions specified in Sec. 648.4(a), then the used 
DAS baseline shall be defined based upon the DAS used by the original 
vessel and by subsequent vessel(s) associated with the permit during 
the qualification period specified in this paragraph (c)(1). The used 
DAS baseline shall be used to calculate the number and category of DAS 
that are allocated for use in a given fishing year, as specified in 
paragraph (d) of this section.
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[FR Doc. 04-24104 Filed 10-25-04; 2:01 pm]
BILLING CODE 3510-22-S