62844 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Proposed Rules 

operations (e.g., scheduled cargo, mail 

under a U.S. Postal Service contract, ondemand passenger, on-demand cargo, or 

other service such as air ambulance 

operations, firefighting or seasonal 

operations) without having to meet the 

registration requirements of subpart C of 

this part, except as provided in 

paragraph (b) of this section. 

(b) Should a commuter air carrier 

cease conducting all scheduled 

passenger operations and its Commuter 

Air Carrier Authorization is suspended 

pursuant to §§ 298.53 and/or 204.7 of 

this chapter, it may continue to conduct 

air taxi operations provided that the 

carrier maintains in effect liability 

insurance coverage as required for such 

operations by part 205 of this chapter 

and, within 10 days of the cessation of 

scheduled passenger operations, 

registers as an air taxi operator in 

accordance with subpart C of this part; 

and provided further that the carrier 

continues to hold authority from the 

Federal Aviation Administration to 

conduct such air taxi operations.

§ 298.53 Suspension or revocation of 

authority. 

A Commuter Air Carrier 

Authorization may be suspended or 

revoked if any of the following occur:

(a) The operator fails to maintain 

insurance coverage as required by part 

205 of this chapter for commuter 

operations; 

(b) The scheduled passenger authority 

under the operator’s Air Carrier 

Certificate is suspended or revoked by 

the Federal Aviation Administration; 

(c) The operator does not commence 

operations for which it has been found 

fit, or the operator ceases those 

operations as provided in § 204.7 of this 

chapter; 

(d) The Department finds that the 

carrier is not fit, willing, and able to 

conduct scheduled service or fails to 

qualify as a citizen of the United States; 

or 

(e) The Department determines that it 

is otherwise in the public interest to do 

so.

PART 380—PUBLIC CHARTERS 

16. The authority citation for part 380 

continues to read as follows:

Authority: 49 U.S.C. 40101, 40102, 40109, 

40113, 41101, 41103, 41301, 41504, 41702, 

41708, 41712, 46101.

§ 380.2 [Amended] 

17. In § 380.2 in the definition of 

Direct air carrier add the word ‘‘, 

commuter’’ after ‘‘certificated’’; remove 

the words ‘‘or commuter air carrier’’

after ‘‘air taxi operator’’ the first time 

that term is used; and add 

‘‘authorization,’’ between ‘‘certificate’’

and ‘‘permit’’.

PART 385—STAFF ASSIGNMENTS 

AND REVIEW OF ACTION UNDER 

ASSIGNMENTS 

18. The authority citation for part 385 

continues to read as follows:

Authority: 49 U.S.C. subtitle I, chapters 

401, 411, 413, 415, 417.

§ 385.12 [Amended] 

19. In § 385.12(e), remove the words 

‘‘and commuter air carriers’’.

PART 389—FEES AND CHARGES FOR 

SPECIAL SERVICES 

20. The authority citation for part 389 

continues to read as follows:

Authority: Sec. 204, 1002, Pub. L. 85–726, 

as amended, 72 Stat. 743, 797; 49 U.S.C. 

1324, 1502. Act of August 31, 1951, ch. 376, 

65 Stat. 268; 31 U.S.C. 483a.

§ 389.25 [Amended] 

21. In § 389.25(a), in the table, under 

the entry Code 7, remove the words 

‘‘Scheduled Passenger Commuter 

Registration’’ and add, in their place, 

‘‘Commuter Air Carrier Authorization’’.

Karan K. Bhatia, 

Assistant Secretary for Aviation and 

International Affairs.

[FR Doc. 04–23859 Filed 10–27–04; 8:45 am] 

BILLING CODE 4910–62–M

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.

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 DASprocedure@noaa.gov. 

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 

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Proposed Rules 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 MagnusonStevens 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. 

62846 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Proposed Rules 

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 § 648.82, paragraph (c)(1) 

introductory text is republished to read 

as follows:

§ 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 

§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. 04–24104 Filed 10–25–04; 2:01 pm]

BILLING CODE 3510–22–S