Federal Register / Vol. 69, No. 235 / Wednesday, December 8, 2004 / Rules and Regulations 70919

§ 585.43 Applicability. 

This subpart applies to manufacturers 

of passenger cars, multipurpose 

vehicles, trucks and buses with a GVWR 

of 4,536 kg or less.

§ 585.44 Response to inquiries. 

During the production years ending 

August 31, 2007, August 31, 2008, and 

August 31, 2009, each manufacturer 

shall, upon request from the Office of 

Vehicle Safety Compliance, provide 

information identifying the vehicles (by 

make, model, and vehicle identification 

number) that have been certified as 

complying with the requirements of 

S6.2(b) of Standard No. 301. The 

manufacturer’s designation of a vehicle 

as a certified vehicle is irrevocable.

§ 585.45 Reporting requirements. 

(a) General reporting requirements. 

Within 60 days after the end of the 

production years ending August 31, 

2007, August 31, 2008 and August 31, 

2009, each manufacturer shall submit a 

report to the National Highway Traffic 

Safety Administration concerning its 

compliance with S6.2(b) of Standard 

No. 301 for its passenger cars, 

multipurpose passenger vehicles, 

trucks, and buses with a GVWR of less 

than 4,536 kg produced in that year. 

Each report shall provide the 

information specified in paragraph (b) of 

this section and in section 585.2 of this 

part. 

(b) Report content. (1) Basis for 

statement of compliance. Each 

manufacturer shall provide the number 

of passenger cars, multipurpose 

passenger vehicles, trucks, and buses 

with a GVWR of 4,536 kg or less 

manufactured for sale in the United 

States for each of the three previous 

production years, or, at the 

manufacturer’s option, for the previous 

production year. A new manufacturer 

that has not previously manufactured 

these vehicles for sale in the United 

States must report the number of such 

vehicles manufactured during the 

current production year. 

(2) Production. Each manufacturer 

shall report for the production year for 

which the report is filed the number of 

passenger cars, multipurpose passenger 

vehicles, trucks, and buses with a 

GVWR of 4,536 kg or less that meet 

S6.2(b) or S6.3(b) of Standard No. 301.

§ 585.46 Records. 

Each manufacturer shall maintain 

records of the Vehicle Identification 

Number for each vehicle for which 

information is reported under 

§ 585.45(b)(2) until December 31, 2010.

Subpart F—Tires for Motor Vehicles 

with a GVWR of 10,000 Pounds or Less 

Phase-In Reporting Requirements

§ 585.51 Scope. 

This subpart establishes requirements 

for manufacturers of new pneumatic 

tires for motor vehicles with a GVWR of 

4,536 kg (10,000 lb) or less to respond 

to NHTSA inquiries, to submit reports, 

and to maintain records related to the 

reports, concerning the number of such 

tires that meet the requirements of 

Standard No. 139, New pneumatic tires 

for light vehicles (49 CFR 571.139).

§ 585.52 Purpose. 

The purpose of these requirements is 

to assist the National Highway Traffic 

Safety Administration in determining 

whether a manufacturer has complied 

with the requirements of Standard No. 

139.

§ 585.53 Applicability. 

This subpart applies to manufacturers 

of tires for motor vehicles with a GVWR 

of 4,536 kg or less.

§ 585.54 Response to inquiries. 

Each manufacturer shall, upon 

request from the Office of Vehicle Safety 

Compliance, provide information 

identifying the tires (by make, model, 

brand and tire identification number) 

that have been certified as complying 

with the requirements of Standard No. 

139. The manufacturer’s designation of 

a tire as a certified tire is irrevocable.

§ 585.55 Reporting requirements. 

(a) General reporting requirements.

Within 60 days after the end of the 

production years ending August 31, 

2006 and August 31, 2007, each 

manufacturer shall submit a report to 

the National Highway Traffic Safety 

Administration concerning its 

compliance with Standard No. 139 for 

its tires produced in that year for motor 

vehicles with a GVWR of 4,536 kg or 

less. Each report shall provide the 

information specified in paragraph (b) of 

this section and in section 585.2 of this 

part.

(b) Report content. (1) Basis for 

statement of compliance. Each 

manufacturer shall provide the number 

of tires for motor vehicles with a GVWR 

of 4,536 kg or less manufactured for sale 

in the United States for each of the three 

previous production years, or, at the 

manufacturer’s option, for the 

production year for which the report is 

filed. A new manufacturer that has not 

previously manufactured these tires for 

sale in the United States shall report the 

number of such tires manufactured 

during the current production year. 

(2) Production. Each manufacturer 

shall report for the production year for 

which the report is filed the number of 

new pneumatic tires for motor vehicles 

with a GVWR of 4,536 kg or less that 

meet Standard No. 139.

§ 585.56 Records. 

Each manufacturer shall maintain 

records of the tire identification number 

for each vehicle for which information 

is reported under § 585.55(b)(2) until 

December 31, 2008.

PART 586—[REMOVED AND 

RESERVED]

■ 7. Part 586 is removed and the part is 

reserved.

PART 589—[REMOVED AND 

RESERVED]

■ 8. Part 589 is removed and the part is 

reserved.

PART 590—[REMOVED AND 

RESERVED]

■ 9. Part 590 is removed and the part is 

reserved.

PART 596—[REMOVED AND 

RESERVED]

■ 10. Part 596 is removed and the part is 

reserved.

PART 597—[REMOVED AND 

RESERVED]

■ 11. Part 597 is removed and the part is 

reserved.

Jeffrey W. Runge, 

Administrator.

[FR Doc. 04–26874 Filed 12–3–04; 3:59 pm] 

BILLING CODE 4910–59–P

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.

70920 Federal Register / Vol. 69, No. 235 / Wednesday, December 8, 2004 / Rules and Regulations 

ACTION: Final interim rule.

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 

Federal Register / Vol. 69, No. 235 / Wednesday, December 8, 2004 / Rules and Regulations 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 reconsider 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 

70922 Federal Register / Vol. 69, No. 235 / Wednesday, December 8, 2004 / Rules and Regulations 

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 MagnusonStevens 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 

Federal Register / Vol. 69, No. 235 / Wednesday, December 8, 2004 / Rules and Regulations 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.

■ For the reasons set out in the preamble, 

50 CFR part 648 is 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. 04–26950 Filed 12–3–04; 2:54 pm]

BILLING CODE 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Part 648

[Docket No. 021101264–3016–02; I.D. 

120304C]

Fisheries of the Northeastern United 

States; Atlantic Herring Fishery; Total 

Allowable Catch Harvested for 

Management Area 1B

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Closure of directed fishery for 

Management Area 1B.

SUMMARY: NMFS announces that 95 

percent of the Atlantic herring total 

allowable catch (TAC) allocated to 

Management Area 1B (Area 1B) for 2004 

is projected to be harvested by 0001 hrs 

local time, December 8, 2004. Therefore, 

effective 0001 hours, December 8, 2004, 

federally permitted vessels may not fish 

for, catch, possess, transfer or land more 

than 2,000 lb (907.2 kg) of Atlantic 

herring in or from Area 1B per trip or 

calendar day until January 1, 2005, 

when the 2005 period TAC becomes 

available, except for transiting purposes