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. 980212037-8037-01; 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: Proposed rule; request for comments.

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SUMMARY: NMFS proposes 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) that have been

submitted by the North Pacific Fishery Management Council (Council) for

Secretarial review. This rule would authorize the limited retention of

Pacific halibut taken as bycatch in the groundfish trawl fisheries off

Alaska for distribution to economically disadvantaged individuals by

tax-exempt organizations through a NMFS-authorized distributor. This

action would support industry initiatives to reduce regulatory discards

in the groundfish fisheries by processing halibut bycatch for human

consumption. This action is necessary to promote the goals and

objectives of the FMPs that govern the commercial groundfish fisheries

off Alaska.

DATES: Comments on the proposed rule must be received by April 20,

1998.

ADDRESSES: Comments should be submitted to the Assistant Regional

Administrator, Sustainable Fisheries Division, Alaska Region, NMFS,

P.O. Box 21668, Juneau, AK 99802, Attn: Lori Gravel, or delivered to

the Federal Building, 709 West 9th Street, Juneau, AK, Attn: Lori

Gravel. Copies of the proposed Amendments to the FMP and the

Environmental Assessment/Regulatory Impact Review (EA/RIR) and related

economic analysis prepared for the proposed action are available from

NMFS at the above address or by calling the Alaska Region, NMFS, at

907-586-7228. Send comments regarding burden estimates or any other

aspect of the 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, NMFS, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Management Background and Need for Action

The domestic groundfish fisheries in the exclusive economic zone of

the Gulf of Alaska and the Bering Sea and Aleutian Islands management

area 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.

The Council has submitted Amendments 50/50 to the FMPs for

Secretarial review and a Notice of Availability of the FMP amendments

was published on February 4, 1998 (63 FR 5777) with comments on the FMP

amendments invited through April 6, 1998. All written comments received

by April 6, 1998, whether specifically directed to the FMP amendments,

the proposed rule, or both, will be considered in the approval/

disapproval decision on the FMP amendments.

Pacific halibut are taken incidentally to the Alaska groundfish

fisheries. Vessels participating in these fisheries typically use

trawl, hook-and-line, or pot gear. Trawl gear accounts for most of the

groundfish catch, and for about 84 percent of the halibut bycatch

mortality. A portion of this bycatch is landed dead at shoreside

processing facilities because sorting of catch at sea is not always

feasible. Such bycatch must then be returned to Federal waters for

disposal as a prohibited species. Total halibut bycatch mortality in

the Alaska groundfish fisheries was estimated to be 6,757 metric tons

during 1996.

In general, no information exists to indicate that the current

level of halibut bycatch landed at shoreside processing sites in the

Alaska trawl fisheries presents critical conservation issues. The

International Pacific Halibut Commission (IPHC) has recommended

enhanced data collection at shoreside processing plants to assess the

levels of shoreside landings of trawl halibut bycatch.

At its January 1996 Annual Meeting, the IPHC endorsed a pilot

program allowing limited retention of halibut bycatch for donation to

the needy through food bank organizations. The pilot program was

intended to explore ways to reduce discard of dead halibut and to

improve bycatch records. However, NMFS was not able to identify an

acceptable administrative procedure for transferring halibut bycatch

from shoreside processing plants to the government for distribution to

foodbank organizations. At its 1997 Annual Meeting, the IPHC requested

that its staff work with NMFS to develop an acceptable administrative

procedure for limited retention of halibut bycatch landed at shoreside

processing plants. NMFS recommended that amendments to the FMPs be

prepared to allow a NMFS authorized distributor(s) to receive and

distribute halibut bycatch. The program would be similar to the current

salmon donation program authorized at 50 CFR 679.26. The IPHC staff

further recommended that regulations implementing the FMP amendments be

effective only for a 3-year period so that management agencies may

assess the halibut donation program prior to determining whether to

continue it under a future regulatory amendment.

At its April 1997 meeting, the Council adopted Amendments 50/50 and

recommended that they be implemented on a temporary basis, to assess

the feasibility of a donation program for halibut bycatch landed dead

at shoreside processors. The Council's recommendation endorses the

policy of reducing unnecessary discard of dead, but wholesome, fish,

thereby benefitting the public by allowing fish that would otherwise be

discarded to be retained for processing and delivery to food bank

organizations. The Council's intent in making its recommendation was to

[[Page 10584]]

reduce regulatory discard and protein waste in the groundfish trawl

fisheries and provide additional opportunity to collect biological

samples and scientific data. Any costs associated with this recommended

action would be borne by voluntarily participating shoreside processors

and the NMFS authorized distributors.

Amendments 50/50 would expand the existing Salmon Donation Program

(SDP) to create a Prohibited Species Donation (PSD) program that

includes Pacific halibut as well as salmon. These amendments and this

proposed rule to implement them would authorize the distribution of

halibut taken as bycatch in the groundfish trawl fishery to

economically disadvantaged individuals by tax-exempt organizations

through a NMFS authorized distributor. These amendments and this

proposed rule would support industry initiatives to reduce regulatory

discards and help improve the diets of people who often have access

only to meager and inadequate food.

The Council further adopted the IPHC's recommendation to limit the

effective period of the regulations implementing Amendments 50/50. This

would allow the Council, in consultation with the IPHC and NMFS, to

assess the effectiveness of the halibut donation program relative to

the program's objectives before the Council took an action to extend

the program by regulatory amendment. Accordingly, the rule would expire

December 31, 2000.

Selection Process for Authorized Distributors

The Administrator, Alaska Region, NMFS, (Regional Administrator)

would select an authorized distributor(s) from qualified applicants,

announce the NMFS-authorized distributor(s) in the Federal Register,

and issue a PSD permit to each selected applicant. A PSD permit would

be effective until December 31, 2000.

Factors that would be considered by the Regional Administrator when

selecting an authorized distributor are listed at proposed

Sec. 679.26(b)(1). The number of authorized distributors selected by

the Regional Administrator would be based on the criteria listed at

proposed Sec. 679.26(b)(2).

Responsibilities of an Authorized Distributor

An authorized distributor would be responsible for monitoring the

retention and processing of halibut donated by shoreside processors. An

authorized distributor also would coordinate the processing, storage,

transportation, and distribution of halibut to hunger relief agencies,

food bank networks, and food bank distributors.

Prior to retaining any halibut under the PSD program, the

authorized distributor would provide the Regional Administrator with a

list of all participants in the halibut PSD program, including a list

of all shoreside processors and a list of hunger relief agencies, food

bank networks, and food distributors participating in the PSD program.

The list of processors would include the following information: (1) A

Federal processor permit number, (2) the name of the owner or

responsible manager, and (3) a telephone number or fax number. If an

authorized distributor modifies the list of participants in the PSD

program or changes delivery locations, the authorized distributor would

be required to submit a revised list of participants to the Regional

Administrator before halibut bycatch could be retained by any new

participant.

Reporting Requirements--Documentation and Labeling

Participants in the halibut PSD program would have to comply with

new documentation and labeling requirements. All packages would be

required to be labeled with the date of processing, the name of the

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

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

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

A processor or authorized distributor retaining or receiving

halibut under the PSD program would 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 halibut. Such documentation would be retained until 1 year after

the effective period of the PSD permit (December 31, 2001).

Responsibilities of Participating Shoreside Processors

All donated halibut would be required to be processed so that it is

fit for human consumption. Participation in the PSD program would not

relieve any processor from any existing reporting requirements.

Classification

At this time, NMFS has not determined that Amendments 50/50 are

consistent with the national standards, other provisions of the

Magnuson-Stevens Act, and other applicable laws. NMFS, in making that

determination, will take into account the data, views, and comments

received during the comment period.

NMFS prepared a regulatory impact review (RIR) that describes the

impact this proposed rule, if adopted, would have on small entities.

The RIR examined the economic effects of the proposed rule and

concluded that it would not have a significant impact on a substantial

number of small entities.

The Small Business Administration has defined all fish-harvesting

or hatchery businesses that are independently owned and operated, not

dominant in their field of operation, with annual receipts not in

excess of $3,000,000 as small businesses. In addition, seafood

processors with 500 employees or fewer, wholesale industry members with

100 employees or fewer, not-for-profit-enterprises, and government

jurisdictions with a population of 50,000 or less are considered small

entities. NMFS has determined that a ``substantial number'' of small

entities would generally be 20 percent of the total universe of small

entities affected by the regulation. A regulation would have a

``significant economic impact'' on these small entities if it reduced

annual gross revenues by more than 5 percent, increased total costs of

production by more than 5 percent, resulted in compliance costs for

small entities by at least 10 percent compared with compliance costs as

a percent of sales for large entities, or resulted in 2 percent or more

of the affected small entities being forced to cease operations.

The Assistant General Council for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration that this proposed rule, if adopted,

will not have a significant economic impact on a substantial number of

small entities as follows.

There are 56 shoreside processors in the State of Alaska, most

have fewer than 500 employees and would be considered small

entities. NMFS anticipates that 5 of these processors, or 6 percent,

will choose to participate in the program. NMFS does not anticipate

that any processor that qualifies as a small entity would elect to

participate in the voluntary program if the cost of doing so would

reduce gross annual receipts by 5 percent or more, would result in

compliance costs at least 10 percent higher than such costs as a

percent of sales for large entities, or would cause the entity to go

out of business. Thus, this rule is not expected to have a

significant economic impact on a substantial number of small

entities.

As a result, a regulatory flexibility analysis was not prepared.

[[Page 10585]]

This proposed rule has been determined to be not significant for

the purposes of E.O. 12866.

This proposed rule contains collection-of-information requirements

subject to the Paperwork Reduction Act. OMB approval for the

collection-of-information requirement under the salmon donation program

was obtained under OMB control number 0648-0316. The collection of

information requirements contained in the proposed rule would revise

OMB number 0648-0316 to include information submitted on an application

to participate as an authorized distributor in the halibut donation

program, documentation requirements for the authorized distributor(s)

and processors participating in the PSD program, and packaging

requirements for processors. Public reporting burden 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 distributor to comply with 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.

Comments are invited on: (a) whether the proposed collection of

information is necessary for the proper performance of the functions of

NMFS, including whether the information shall have practical utility;

(b) the accuracy of the estimate of the burden of the proposed

collection of information; (c) ways to enhance the quality, utility,

and clarity of the information to be collected; and (d) ways to

minimize the burden of the collection of information on respondents,

including through the use of automated collection techniques or other

forms of information technology. Send comments on these or any other

aspects of the collection of information to NMFS and to OMB (see

ADDRESSES).

Notwithstanding any other provision of the law, no person is

required to respond to, nor shall any person be subject to a 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.

List of Subjects in 50 CFR Part 679

Alaska, Fisheries, Reporting and recordkeeping requirements.

Dated: February 20, 1998.

David L. Evans,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

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

proposed to be 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.

* * * * *

4. Section 679.21 paragraph (c)(1) is amended by changing the word

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

5. 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:

Sec. 679.26 Prohibited Species Donation Program.

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

following species:

(1) Salmon.

(2) Halibut delivered by catcher vessels using trawl gear to

shoreside processors (Applicable through December 31, 2000).

(b) * * *

(1) * * *

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

under paragraph (b)(1)(xi) of this section 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) PSD Permit.

* * * * *

(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. (1) Salmon. A PSD permit for salmon remains

in effect for a 3-year period after the selection 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.

(2) 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 (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.

[[Page 10586]]

(c) * * *

(1) A vessel or processor retaining fish 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 Sec. 679.7(c)(1), and Sec. 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 paragraphs (b)(1)(xi), (b)(1)(xiii) or

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

* * * * *

Sec. 679.26 [Amended]

In addition to the amendments set forth, 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 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 and the word ``PSD'' is added in its place.

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

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

is removed and the word ``fish'' is added in its place.

d. In paragraph (d)(3) the word ``salmon'' is removed and the

phrase ``prohibited species'' is added in its place.

[FR Doc. 98-5185 Filed 3-3-98;8:45am]

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