[Federal Register Volume 63, Number 42 (Wednesday, March 4, 1998)]
[Proposed Rules]
[Pages 10583-10586]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5185]
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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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