Fisheries of the Exclusive Economic Zone Off Alaska; Halibut Donation Program

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 980212037-8142-02; I.D. 012798A]

RIN 0648-AJ87

Fisheries of the Exclusive Economic Zone Off Alaska; Halibut

Donation Program

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues regulations to implement Amendment 50 to the

Fishery Management Plan for Groundfish of the Gulf of Alaska and

Amendment 50 to the Fishery Management Plan for the Groundfish Fishery

of the Bering Sea and Aleutian Islands Area (FMPs). This rule

authorizes the distribution of Pacific halibut taken as bycatch in the

specified groundfish trawl fisheries off Alaska to economically

disadvantaged individuals through tax-exempt organizations selected by

NMFS to be authorized distributors. This rule is applicable only until

December 31, 2000, so that management agencies may assess the program

prior to determining whether or not to continue it under a future

regulatory amendment. This action is necessary to promote the goals and

objectives of the FMPs. The intended effect of this action is to reduce

the amount of regulatory discards in the groundfish fisheries by

processing dead halibut for human consumption.

DATES: Effective July 13, 1998.

ADDRESSES: Copies of Amendments 50/50 and the Environmental Assessment/

Regulatory Impact Review (EA/RIR) prepared for this action are

available from the Sustainable Fisheries Division, Alaska Region, NMFS,

P.O. Box 21668, Juneau AK 99802, Attn: Lori J. Gravel, or by calling

the Alaska Region, NMFS, at 907-586-7228. Send comments regarding

burden estimates or any other aspect of data requirements, including

suggestions for reducing burdens to NMFS and to the Office of

Information and Regulatory Affairs, Office of Management and Budget

(OMB), Washington, DC 20503, Attn: NOAA Desk Officer.

FOR FURTHER INFORMATION CONTACT: Alan Kinsolving, 907-586-7228.

SUPPLEMENTARY INFORMATION: The domestic groundfish fisheries in the

exclusive economic zone off Alaska are managed by NMFS under the FMPs.

The FMPs were prepared by the North Pacific Fishery Management Council

(Council) under the Magnuson-Stevens Fishery Conservation and

Management Act (Magnuson-Stevens Act). Regulations governing the Alaska

groundfish fisheries appear at 50 CFR parts 600 and 679. Fishing for

Pacific halibut in waters in and off Alaska is governed by the

Convention between the United States and Canada for the Preservation of

the Halibut Fishery of the North Pacific Ocean and Bering Sea

(Convention) and by regulations adopted by the International Pacific

Halibut Commission (IPHC) and approved by the Secretary of State of the

United States pursuant to section 4 of the Northern Pacific Halibut Act

(16 U.S.C. 773-773k). Regulations of the IPHC are published as annual

management measures in the Federal Register each year pursuant to

regulations at 50 CFR 300.62.

A Notice of Availability of Amendments 50/50 was published in the

Federal Register on February 4, 1998 (63 FR 5777), with comments

invited through April 6, 1998. A proposed rule to implement Amendments

50/50 was published in the Federal Register on March 4, 1998 (63 FR

10583), with comments invited through April 20, 1998. Four comments

were received, and they are summarized and responded to in the Comments

and Responses section. No changes were made from the proposed rule to

the final rule.

The regulations implementing Amendments 50/50 expand the existing

Salmon Donation Program by creating a Prohibited Species Donation (PSD)

program that includes Pacific halibut as well as salmon. The

regulations authorize the voluntary distribution of halibut taken as

bycatch in the groundfish trawl fishery to needy individuals by tax-

exempt organizations through a NMFS-authorized distributor.

The program is limited to dead halibut landed by trawl catcher

vessels to shoreside processors. Many of the halibut taken in the

groundfish fishery are discarded alive. However, dead halibut are

sometimes landed shoreside by trawl catcher vessels because at-sea

sorting of catch is not practicable. This action will not have any

impact on the halibut resource because the groundfish fisheries operate

with a halibut prohibited species catch limit that requires closure of

a fishery when that limit has been reached.

The regulations implementing Amendments 50/50 are applicable until

December 31, 2000. This sunset provision was advocated by the Council

and the IPHC so that management agencies could assess the effectiveness

of the halibut donation program, relative to the program's objectives,

before the Council took action to extend the program beyond the year

2000 by regulatory amendment.

Additional information on this action is contained in the preamble

to the proposed rule and in the EA/RIR (see ADDRESSES). Upon reviewing

Amendments 50/50, the Administrator, Alaska Region, NMFS has determined

that Amendments 50/50 are necessary for the conservation and management

of

[[Page 32145]]

the groundfish fisheries off Alaska and are consistent with the

Magnuson-Stevens Act and with other applicable laws.

Comments and Responses

Comment 1: The concept of a PSD program is a good one, but the plan

amendments should be structured to allow the donation of any prohibited

species and not just halibut.

Response: The Council has recommended that the PSD program be

limited to the existing salmon donation program and to the new halibut

donation program implemented by this action. If the PSD program is

successful, the Council may consider its expansion at a future date. At

this time, the only authorized distributor has not expressed interest

in receiving donations of other species.

Comment 2: The Council and NMFS have been moving in the direction

of increasing the utilization of harvested fish. While expanding the

salmon donation program is worthwhile, the Secretary of Commerce should

encourage the Council to rethink its management of prohibited species.

Many of the regulatory discard rules may no longer be necessary in the

light of increased retention/increased utilization policies that have

been recently implemented.

Response: Comment noted. NMFS will continue to examine viable

alternatives to the existing programs for managing bycatch and reducing

the need for regulatory discard. NMFS believes that this action is a

positive step in this direction.

Comment 3: The preamble to the proposed rule asserts that the

retention of halibut for donation will provide additional opportunity

to collect biological samples and scientific data. NMFS should consider

the possibility that prohibited species catch data, which may be

collected as a result of the program, could be misleading. This should

be addressed when considering the approval of these amendments.

Response: The primary goals of Amendments 50/50 is to reduce

regulatory discards and to provide a mechanism for the donation of dead

halibut to economically disadvantaged individuals. While this action

provides an opportunity for increased collection of data, NMFS does not

currently have plans to collect new data through this program. If such

plans develop in the future, we will keep this comment in mind.

Comment 4: The EA prepared for this action erroneously states that

trawl gear accounts for 84 percent of the halibut bycatch in the FMP

managed groundfish fisheries. The correct statement would be that trawl

gear accounts for 84 percent of the halibut bycatch mortality.

Response: The executive summary of the final EA has been revised to

indicate that trawl gear is estimated to account for 84 percent of the

halibut bycatch mortality.

Classification

At the proposed rules stage, the Assistant General Counsel for

Legislation and Regulation of the Department of Commerce certified to

the Chief Counsel for Advocacy of the Small Business Administration

that this rule would not have a significant economic impact on a

substantial number of small entities. The rationale for this

determination appeared in the proposed rule. No comments were received

regarding this certification. As a result, a regulatory flexibility

analysis was not prepared.

This final rule has been determined to be not significant for the

purposes of E.O. 12866.

This final rule contains collection-of-information requirements

subject to the Paperwork Reduction Act (PRA). The collection of this

information has been approved by OMB under OMB control number 0648-

0316.

Notwithstanding any other provision of the law, no person is

required to respond to, nor shall any person be subject to penalty for

failure to comply with a collection of information, subject to the

requirements of the PRA, unless that collection of information displays

a currently valid OMB control number.

Public reporting burdens for these collections of information are

estimated to average: 40 hours per response for a distributor to

complete an application; 40 hours per year per response per distributor

to comply with the documentation requirements; 0.1 hours per response

for processors to properly label processed halibut; and 0.25 hours per

response for the vessels/processors to list vessels/processors. The

estimated response times shown include the time to review instructions,

search existing data sources, gather and maintain the data needed, and

complete and review the collection of information.

Send comments on these or any other aspects of the collection of

information, including suggestions for reducing burdens, to NMFS and to

OMB (see ADDRESSES).

List of Subjects in 50 CFR Part 679

Alaska, Fisheries, Reporting and recordkeeping requirements.

Dated: June 5, 1998.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 679 is amended

as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

1. The authority citation for 50 CFR part 679 continues to read as

follows:

Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq.

2. In Sec. 679.2, the definitions of ``SDP'' and ``SDP permit'' are

removed, the definitions of ``PSD program'' and ``PSD permit'' are

added, and paragraph (1) of the definition of ``Catcher vessel'' is

revised, in alphabetical order as follows:

Sec. 679.2 Definitions.

* * * * *

Catcher vessel means:

(1) With respect to groundfish recordkeeping and reporting, the PSD

program and subpart E of this part, a vessel that is used for catching

fish and that does not process fish on board.

* * * * *

PSD Permit means a permit issued by NMFS to an applicant who

qualifies as an authorized distributor for purposes of the PSD.

PSD Program means the Prohibited Species Donation Program

established under Sec. 679.26.

* * * * *

3. In Sec. 679.7, paragraph (a)(12) is revised to read as follows:

Sec. 679.7 Prohibitions.

* * * * *

(a) * * *

(12) Prohibited species donation program. Retain or possess

prohibited species, defined at Sec. 679.21(b)(1), except as permitted

to do so under the PSD program as provided by Sec. 679.26 of this part,

or as authorized by other applicable law.

* * * * *

Sec. 679.21 [Amended]

In Sec. 679.21 paragraph (c)(1) is amended by changing the word

``SDP'' to the phrase ``PSD program''.

4. In Sec. 679.26, the section heading is revised; paragraphs (a)

through (c) are redesignated as paragraphs (b) through (d);

redesignated paragraphs (b)(1)(xii), (b)(2)introductory text,

(b)(2)(iii), (b)(3)(ii), (b)(3)(iv), (b)(3)(v), (c)(1), (c)(2), (c)(3)

and (d)(4) are revised; and new paragraphs (a) and (b)(1)(xiv) are

added to read as follows:

[[Page 32146]]

Sec. 679.26 Prohibited Species Donation Program.

(a) Authorized species. The PSD program applies only to the

following species:

(1) Salmon.

(2) (Applicable through December 31, 2000) Halibut delivered by

catcher vessels using trawl gear to shoreside processors.

(b) * * *

(1) * * *

(xii) A signed statement from the applicant and from all persons

who are listed under paragraph (b)(1)(xi) of this section and who would

conduct activities pursuant to the PSD permit waiving any and all

claims against the United States and its agents and employees for any

liability for personal injury, death, sickness, damage to property

directly or indirectly due to activities conducted under the PSD

program.

* * * * *

(xiv) A separate application must be submitted for each species

listed under paragraph (a) of this section that the applicant seeks to

distribute.

(2) Selection. The Regional Administrator may select one or more

tax-exempt organizations to be authorized distributors under the PSD

program based on the information submitted by applicants under

paragraph (b)(1) of this section. The number of authorized distributors

selected by the Regional Administrator will be based on the following

criteria:

* * * * *

(iii) The anticipated level of bycatch of prohibited species listed

under paragraph (a) of this section.

* * * * *

(3) * * *

(ii) The Regional Administrator may impose additional terms and

conditions on a PSD permit consistent with the objectives of the PSD

program.

* * * * *

(iv) Effective period--(A) Salmon. A PSD permit for salmon remains

in effect for a 3-year period after the selection notice is published

in the Federal Register unless suspended or revoked. A PSD permit

issued to an authorized distributor may be renewed following the

application procedures in this section.

(B) A PSD permit issued for halibut will expire December 31, 2000.

(v) If the authorized distributor modifies any information on the

PSD permit application submitted under paragraph (b)(1)(xi) or

(b)(1)(xiii) of this section, the authorized distributor must submit a

modified list of participants or a modified list of delivery locations

to the Regional Administrator.

(c) * * *

(1) A vessel or processor retaining prohibited species under the

PSD program must comply with all applicable recordkeeping and reporting

requirements. A vessel or processor participating in the PSD program

must comply with applicable regulations at Secs. 679.7(c)(1) and

679.21(c) that allow for the collection of data and biological sampling

by a NMFS-certified observer prior to processing any salmon under the

PSD program.

(2) Prohibited species retained under the PSD program must be

packaged, and all packages must be labeled with the date of processing,

the name of the processing facility, the contents and the weight of the

fish contained in the package, and the words, ``NMFS PROHIBITED SPECIES

DONATION PROGRAM - NOT FOR SALE - PERISHABLE PRODUCT - KEEP FROZEN''.

(3) A processor retaining or receiving fish under the PSD program

and an authorized distributor must keep on file and make available for

inspection by an authorized officer all documentation, including

receipt and cargo manifests setting forth the origin, weight, and

destination of all prohibited species bycatch. Such documentation must

be retained until 1 year after the effective period of the PSD permit.

(d) * * *

(4) No prohibited species that has been sorted from a vessel's

catch or landing may be retained by a vessel or processor, or delivered

to a delivery location under this section, unless the vessel or

processor and delivery location is included on the list provided to the

Regional Administrator under paragraph (b)(1)(xi), (b)(1)(xiii) or

(b)(3)(v) of this section.

Sec. 679.26 [Amended]

5. In addition to the amendments set forth above, Sec. 679.26 is

amended by making the following nomenclature changes:

a. In paragraphs (b)(1)(vi), (b)(1)(viii), (b)(1)(xi), (d)(1), and

(d)(3), the word ``SDP'' is removed wherever it appears and the phrase

``PSD program'' is added in its place.

b. In paragraphs (b)(2)(i), (b)(3)(i), and (b)(3)(iii) the word

``SDP'' is removed wherever it appears and the word ``PSD'' is added in

its place.

c. In paragraphs (b)(1)(ii), (b)(1)(v), (b)(1)(viii), (b)(1)(xiii),

(b)(2)(ii), (c)(1), (d)(1) and (d)(2) the word ``salmon'' is removed

wherever it appears and the word ``fish'' is added in its place.

d. In paragraph (d)(3), the word ``salmon'' is removed wherever it

appears and the phrase ``prohibited species'' is added in its place.

[FR Doc. 98-15595 Filed 6-11-98; 8:45 am]

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