[Federal Register Volume 69, Number 235 (Wednesday, December 8, 2004)]
[Rules and Regulations]
[Pages 70919-70923]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26950]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 041018283-4340-02; 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.

[[Page 70920]]


ACTION: Final interim rule.

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SUMMARY: NMFS is implementing 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 establishes a 
DAS baseline allocation based on historic participation in the NE 
multispecies DAS fishery, and caps 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).

DATES: Effective January 7, 2005.

ADDRESSES: 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 and 
RIR are also accessible via the internet at http://www.nefmc.org/nemulti/. NMFS prepared a Final Regulatory Flexibility Analysis (FRFA) 
for this action, which is contained in the Classification section of 
this rule.

FOR FURTHER INFORMATION CONTACT: Thomas Warren, Fishery Policy Analyst, 
(978) 281-9347, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    A proposed rule for this action was published on October 28, 2004 
(69 FR 62844), with public comments accepted through November 12, 2004. 
Details regarding the development of the DAS baseline allocation are in 
Amendment 13 and the need for this final interim rule are the same as 
those contained in the preamble of the proposed rule and are not 
repeated here.
    Amendment 13 established a DAS baseline allocation based on 
historic participation in the NE multispecies DAS fishery. 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 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 implement the 
Amendment 13 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.
    The validity of the DAS usage cap provision in the final rule 
implementing Amendment 13 was questioned by certain members of the 
fishing industry because there was no explicit language in Amendment 13 
referring to a cap on DAS usage [for the particular option selected]. 
One industry group filed a lawsuit asking a court to order removal of 
the cap.
    To provide the public with the opportunity to comment on the DAS 
usage cap and to avoid the possibility of overfishing if the cap is 
removed, NMFS published the DAS allocation procedure including the cap, 
as a proposed interim rule. After fully considering public comment on 
the proposed rule, NMFS is implementing this final rule to avoid the 
possibility of overfishing if the cap is removed and to continue the 
allocation of DAS in this fishery in a manner consistent with NMFS' 
understanding of Council intent in approving Amendment 13.

Comments and Responses:

    A total of thirteen comments on the proposed interim rule were 
received by the close of business on November 12, 2004. Eleven of these 
comments were from individuals, and two comments were from fishing 
industry associations. All of the issues raised in the comments are 
addressed below in the responses to comments.
    Comment 1: Twelve commenters did not support inclusion of the DAS 
cap. They commented that the Amendment 13 DAS baseline provision that 
the Council adopted did not include a DAS cap, and cited various 
Amendment 13 documents that describe the DAS baseline provisions 
selected by the Council (Option 9) in support of their contention 
(i.e., the Council motion that was passed, the public hearing document, 
the SEIS, the proposed rule, and a March 2004 letter from NMFS to NE 
multispecies DAS permit holders). One commenter stated that the Council 
explicitly removed the cap, and one commenter did not believe that 
Council intent was pertinent, and stated that only what the Council 
votes on is relevant. One commenter stated that NMFS should provide 
evidence from the administrative record that would document the view 
that the Council's intent was inclusion of a cap. Two commenters 
believed that the cap resulted from analytical errors by NMFS, and one 
commenter stated there is no basis for NMFS to conclude that Option 9 
included a DAS cap.
    Response: NMFS agrees that several Amendment 13 documents (e.g., 
DSEIS, FSEIS, and proposed rule) do not include the DAS baseline 
language capping a vessel's maximum DAS baseline allocation at its DAS 
allocation in fishing year 2001. However, this rule is being 
promulgated under 50 U.S.C. 1855(c) of the Magnuson-Stevens Act which 
gives NMFS authority to implement interim rules to reduce overfishing 
without regard to whether particular measures are included in the FMP. 
The decision to implement this final rule, therefore, does not 
necessarily hinge upon the Council's intent in Amendment 13. 
Nevertheless, NMFS believes that the Council intended to include the 
cap in Amendment 13, and that this rule is consistent with that intent.
    NMFS' understanding of the intent of the Council is based upon 
several facts. For some vessels, a DAS baseline option without a cap 
would result in a DAS baseline that is higher than the vessels' DAS 
allocation in recent years, which NMFS believes is not consistent with 
the stated goal of the DAS baseline Options in Amendment 13 (i.e., to 
reduce latent effort). The original motion passed by the Groundfish 
Oversight Committee on January 22, 2003, and by the Council on January 
28, 2003, which was the basis of DAS baseline Option 9, was as follows: 
``To include an option defining effective effort as the maximum days-
at-sea used in any single year for the 1996 through 2001 fishing years 
not to exceed the vessels current (FY 2001) allocation. Only days-at-
sea associated with a trip where at least one pound of fish was landed 
will be counted.''
    Subsequently, the phrase pertaining to the cap was not included in 
pertinent documents, yet all of the other DAS baseline options include 
a DAS cap, and there is no documentation of any discussion at the 
Committee or Council to explicitly remove the cap or modify the motion. 
The fact that the analysis in Amendment 13 included the cap is 
indicative that the Plan Development

[[Page 70921]]

Team, which is chaired by Council staff, understood that Option 9 
included a DAS cap. Finally, on November 17, 2004, the Council took an 
action consistent with NMFS' understanding of Council intent by voting 
to include in Framework Adjustment 40-B a measure that would implement 
the DAS baseline allocation cap established under the final rule 
implementing Amendment 13 and this final interim rule on a permanent 
basis.
    Comment 2: Eight commenters believed that the proposed interim rule 
is not appropriate or lawful, because it makes a substantive 
modification to Amendment 13, and was not approved by the Council.
    Response: NMFS is implementing this interim rule under the 
authority of 50 U.S.C. 1855(c) of the Magnuson-Stevens Act, which 
provides that the Secretary of Commerce may implement interim rules on 
a temporary basis, without Council approval and without regard to 
whether particular measures are included in the FMP, in order to reduce 
overfishing. This final interim rule is necessary to avoid the 
possibility of overfishing if the cap were removed and is substantively 
consistent with the goals and analytical methods of Amendment 13, as 
well as Council intent, as understood by NMFS, regarding Amendment 13.
    Comment 3: Six commenters stated that if the analysis was done 
without the cap, the Council would have selected a different baseline 
option, and not Option 9. Several commenters believe that the analysis 
of Option 9 underestimated the effect of including the 2001 fishing 
year. One commenter stated that removal of the cap helps to cushion the 
impact of the inclusion of the 2001 fishing year on full-time vessels.
    Response: Even if these comments were correct, as explained in 
previous responses, this rule is being implemented under the authority 
of 50 U.S.C. 1855(c) which does not require Council approval. 
Nevertheless, the Council's recent vote in connection with Framework 
Adjustment 40-B to retain the cap does not support the commenter's 
thesis. In any event, the analysis of Option 9, which assumed the cap 
was in place, was done correctly, and the effectiveness of this 
alternative in establishing a DAS baseline was one of the reasons that 
the alternative was selected by the Council. The effect of the 
inclusion of the 2001 fishing year is accurately reflected in the DAS 
baseline implemented by Amendment 13, and continued by this final 
interim rule.
    Comment 4: Four commenters stated that the interim rule would have 
large, negative economic effects due to loss of DAS, a reduction in 
income for fishermen, and an impact to related industries. Some 
commenters stated that the combined effect of a DAS cut with the rising 
costs of insurance, fuel, and ice would cause economic disaster, 
especially for larger offshore vessels. One commenter disagreed with 
the IRFA in the proposed interim rule that concluded that 
implementation of a final interim rule to maintain a cap on the DAS 
baseline would not affect the cost of current fishing operations, and 
stated that the DAS baseline option creates winners and losers.
    Response: Implementation of this final interim rule will not cause 
economic impacts beyond the impacts analyzed in Amendment 13 which were 
incorporated into this rulemaking. 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 action. NMFS acknowledges that 
inclusion of the DAS cap in the final rule implementing Amendment 13, 
and in this final interim rule, results in DAS baseline allocations 
that are different than they would be under a DAS baseline alternative 
that did not include a cap. However, Amendment 13 analyzed the effect 
of allocating DAS assuming the cap was in place. Therefore, the impacts 
of this rule on affected vessels is the same as those specified for 
Amendment 13. The FRFA analysis in the preamble of this final rule 
states that 390 vessels would benefit from the increase in the number 
of Category A DAS that would result from the removal of the cap, but 
that such a benefit would come at the cost of undermining Amendment 13 
conservation objectives, and possibly long-term economic objectives.
    Comment 5: Two commenters stated that it is not fair to let one 
group of vessels select their best year and limit other groups to their 
lowest DAS history.
    Response: Any rule that allocates fishing rights among participants 
based upon recent fishing activity may result in different impacts on 
different vessels. But, the Magnuson-Stevens Act does not prohibit 
differential impacts as long as the allocation is designed to maximize 
overall benefits and promotes conservation objectives, consistent with 
the National Standard 4 guidelines, without deliberately discriminating 
among parties or groups. The DAS baseline allocation implemented by 
this final interim rule fairly distributes DAS based on recent 
groundfish activity, while successfully reducing latent effort. All 
vessels are subject to the same criteria for the calculation of their 
DAS baseline. No vessel may have a DAS baseline allocation that exceeds 
its DAS allocation in fishing year 2001, prior to August 1, 2001.
    Comment 6: One commenter disagreed with a statement in the proposed 
interim rule that removal of the DAS cap could significantly increase 
the possibility of overfishing, and noted that there has been a 
relatively low DAS use rate during the 2004 fishing year. A second 
commenter stated that there is currently no resource emergency due to 
the current low rate of DAS use and the low amount of haddock that has 
been harvested.
    Response: According to the Amendment 13 analyses which were 
incorporated into this rulemaking, the DAS allocation, in conjunction 
with the other Amendment 13 management measures, is consistent with the 
rebuilding plans for overfished stocks. Table 81 in the FSEIS indicates 
that, for some stocks, the fishing mortality reductions that are likely 
to be achieved by the management measures exceed the necessary fishing 
mortality reductions to achieve rebuilding. However, for other stocks, 
the fishing mortality reductions that are likely to be achieved by the 
management measures only exceed the necessary fishing mortality 
reductions by a narrow margin. NMFS agrees that the number of DAS used 
to date in the 2004 fishing year has been less than the DAS used during 
the 2003 fishing year. Because the fishing year is not yet over, 
however, it is premature to conclude that the DAS use rate assumptions 
that were relied upon in Amendment 13 are too high. Furthermore, if the 
DAS cap were removed, the additional allocated DAS may spur an increase 
in the total number of DAS used, despite the fact that some sectors of 
the fishery may be reducing their rate of DAS use.
    Comment 7: Two commenters stated that the proposed interim rule 
should have considered the other baseline options that the Council 
considered in November 2003.
    Response: The purpose of the proposed interim rule was not to re-
consider all of the DAS baseline options within Amendment 13. It is 
NMFS' understanding that the Council selected DAS baseline Option 9 
with a cap. The Council took an action consistent with this 
understanding at its November 16-18, 2004, Council meeting by voting to 
include a measure in Framework Adjustment 40-B that would implement the 
DAS baseline allocation cap established under the final rule for 
Amendment 13. The preamble to the proposed interim rule explained, in

[[Page 70922]]

detail, the reasons for soliciting comment on Option 9.
    Comment 8: Two commenters stated that NMFS does not intend to 
consider the comments on the proposed rule, but is taking interim 
action only to remedy a legal challenge. Two commenters stated that the 
interim rule serves only the interests of NMFS.
    Response: NMFS is considering and responding to all comments on the 
proposed interim rule. NMFS is implementing the final interim rule for 
the reasons stated in the preamble to the proposed interim rule. The 
interim rule serves the interest of the public, including the fishing 
industry by promulgating regulations in full accordance with the 
Administrative Procedure Act, and by implementing a DAS baseline that 
is consistent with the Council's goal of fishing capacity reduction and 
the Amendment 13 rebuilding plan.
    Comment 9: The Northeast Seafood Coalition stated that their 
organization developed capacity Option 9, and that part of the intent 
of that option was to cap the DAS at the vessel's DAS allocation for 
fishing year 2001. The commenter clarified that they had used capacity 
Option 8 as the template for developing capacity Option 9, and stated 
that capacity Option 8 included a cap ``not to exceed the current 
allocation,'' as did Option 9 when initially discussed. The commenter 
stated that the preamble of the proposed interim rule accurately 
characterized the intent of the Council. The Northeast Seafood 
Coalition strongly supported the purpose of the proposed interim rule, 
stated their belief that all the relevant analyses had included the DAS 
cap and that they were not aware of any discussion suggesting that 
capacity Option 9 not include the cap, until after the Amendment 13 
final rule published. Further, The Northeast Seafood Coalition stated 
that removal of the DAS cap would undermine the conservation objectives 
and the balance of social and economic cost and benefits achieved by 
Amendment 13. They stated that removal of the DAS cap would produce 
very different DAS baseline allocation results and would be 
inconsistent with the fishing mortality objectives of Amendment 13.
    Response: The rationale set forth by this commenter is consistent 
with the reasons for promulgating this final interim rule as explained 
in the preamble to the proposed interim rule.

Classification

    NMFS determined that this final interim rule is consistent with the 
FMP and with the Magnuson-Stevens Act and other applicable laws.
    The action implements 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 delay in effectiveness. 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 
implements the DAS allocation procedure analyzed in the Amendment 13 
FSEIS. 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.
    The Office of Management and Budget has determined that this final 
interim rule is not significant for purposes of Executive Order 12866.
    NMFS acknowledges that the inclusion of the DAS cap in the final 
rule implementing Amendment 13 did not provide the public with an 
opportunity to comment on this provision. The proposed and final 
interim rule for this action solicited public comment on the DAS cap to 
address this procedural infirmity. Implementing the DAS allocation 
procedure contained in the final rule implementing Amendment 13 with 
the DAS cap would avoid the potential economic and biological impacts 
that would result should the DAS cap be removed. Removal of the DAS cap 
would have the potential of slowing rebuilding efforts by allowing 
additional DAS to be used in the fishery. This could, in turn, result 
in exceeding the mortality targets established in Amendment 13. 
Exceeding the mortality targets would require additional DAS reductions 
in future years, thus resulting in greater adverse economic impacts to 
the fishing industry. 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.
    NMFS prepared a FRFA which incorporates the IRFA and the comments 
and responses herein, as required by section 603 of the Regulatory 
Flexibility Act, that describes the economic impact this rule will have 
on small entities. This FRFA is incorporated entirely within the 
Classification section of this final interim rule. A description of the 
action, why it is necessary, and the legal basis for the action are 
contained in the preamble to the proposed interim rule (69 FR 62844, 
October 28, 2004). This final interim rule does not duplicate, overlap, 
or conflict with any relevant Federal rules. The universe of small 
entities to which this rule applies is contained in the IRFA of the 
proposed rule implementing Amendment 13 and is not repeated here. This 
rule does 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 final 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 
establishes 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 final 
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. Additional alternatives were not considered 
as the two alternatives considered for this action described above are 
the only two feasible alternatives within the context of this final 
interim rule, as specified in the preamble to the proposed interim 
rule. 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

[[Page 70923]]

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 DAS cap (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-selected 
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.
A Summary of the Significant Issues Raised by the Public Comments in 
Response to the IRFA, a Summary of the Assessment of the Agency of such 
Issues, and a Statement of any Changes made in the Proposed Rule as a 
Result of such Comments.
    NMFS received thirteen comments on the proposed interim rule. Of 
these, two comments dealt with economic impacts to small entities 
(vessels) resulting from the management measures in the proposed 
interim rule and one comment specifically disagreed with the 
conclusions of the IRFA. NMFS responded to the comment regarding the 
IRFA in the response to Comment 4 specified above. NMFS addressed the 
two comments regarding the economic impacts to small entities in the 
FRFA analysis in the preamble of this final rule.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: December 3, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

    Authority: 16 U.S.C. 1801 et seq.

0
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.
* * * * *
[FR Doc. 04-26950 Filed 12-3-04; 2:54 pm]
BILLING CODE 3510-22-S