Fisheries of the Exclusive Economic Zone Off Alaska; Prohibited Species Donation Program

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS is proposing to permanently extend the temporary regulations that establish and govern the voluntary Pacific halibut donation program. Under this program, Pacific halibut that is taken incidentally in groundfish trawl fisheries off Alaska may be donated for consumption by economically disadvantaged individuals rather than discarded, as normally required. This action is necessary to promote the goals and objectives of the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area and the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMPs). The intended effect of this action is to reduce the amount of regulatory discards in the groundfish fisheries.

DATES:

Comments must be received by October 5, 2000.

ADDRESSES:

Send comments to Susan Salveson, Assistant Administrator for Sustainable Fisheries, NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802, Attn: Lori Gravel, or delivered to Federal Building, Fourth Floor, 709 West 9th Street, Juneau, AK, and marked Attn: Lori Gravel. Comments will not be accepted if submitted via e-mail or the Internet. Copies of the draft Environmental Assessment/Regulatory Impact Review prepared for this action may be obtained from the same address or by calling the Alaska Region, NMFS, at 907-586-7228. Send comments on collection-of-information requirements to NMFS, Alaska Region at the address given here and to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget (OMB), Washington, DC 20503 (Attn: NOAA Desk Officer). Send comment on any ambiguity or unnecessary complexity arising from the language used in this proposed rule to the Regional Administrator, Alaska Region, P.O. Box 21668, Juneau, AK 99802.

FOR FURTHER INFORMATION CONTACT:

Susan Salveson, 907-586-7228.

SUPPLEMENTARY INFORMATION:

NMFS manages the domestic groundfish fisheries in the exclusive economic zone off Alaska pursuant to the Alaska groundfish FMPs. The North Pacific Fishery Management Council (Council) prepared the FMPs, and NMFS approved them, in accordance with 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 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.

The Prohibited Species Donation (PSD) program regulations at § 679.26 include provisions for the voluntary donation of halibut taken as bycatch in the groundfish trawl fisheries that are delivered dead by trawl catcher vessels to shoreside processors for distribution by tax-exempt organizations for consumption by economically disadvantaged individuals.

The groundfish trawl vessels are not allocated any directed fishery quota for halibut and must discard all halibut. Many trawl vessels discard halibut at sea; some portion of which is alive. However, many trawl vessels, for practical reasons, cannot sort their catch at sea and catch remains unsorted until it is offloaded at a shoreside processor. Because of this process of shoreside sorting, halibut are ‘landed’ dead. This action would not affect the halibut resource because the groundfish fisheries are restricted by halibut bycatch mortality limits that require closure of specified fisheries when a limit has been reached. In 1998 and 1999, 21,196 lb (9,635 kg) and 6,190 lb (2,814 kg) of eviscerated halibut were donated through the PSD program, respectively. NMFS estimates that the halibut donation program provided 65,000 meals to economically disadvantaged individuals in the western Washington Puget Sound area in 1998. No violations of the halibut donation regulations have been reported or observed.

The halibut PSD program will expire on December 31, 2000. The Council and the IPHC supported the sunset provision to allow management agencies to 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.

At its June 2000 meeting, the Council requested NMFS to initiate rulemaking to permanently extend the halibut donation program. The Council also endorsed a recommendation by IPHC staff to review the program every 3 years and assess whether regulatory changes should be pursued to respond to any management or enforcement concerns that may arise in the future. This proposed rule would extend permanently the existing halibut provisions of the PSD program. This action would make no other changes to the existing PSD program. NMFS, the Council, and the IPHC would conduct periodic reviews of the program and the regulations could be revised in the future, if necessary, to respond to new concerns.

Classification

At this time, NMFS has not determined that this proposed regulatory amendment is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. NMFS, in making that determination, will take into account the views and comments received during the comment period.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed regulatory amendment, if adopted, would not have a significant economic impact on a substantial number of small entities as follows:

This proposed regulatory amendment would make permanent the halibut provisions of the Prohibited Species Donation (PSD) program and is identical to the existing program, which is scheduled to end on December 31, 2000, and is in accordance with the Fishery Management Plan for the Groundfish Fishery of the Bering Sea/Aleutian Islands Area and the Fishery Management Plan for Groundfish of the Gulf of Alaska. The proposed regulatory amendment would allow NMFS to continue to authorize distribution of halibut incidentally caught in the Alaska groundfish trawl fisheries and delivered dead to shoreside processors. Halibut voluntarily donated under the PSD program would be distributed to economically disadvantaged individuals through a network of non-profit organizations. Because the overall U.S. groundfish quotas and fishing patterns would remain the same, no change is anticipated in overall revenues that would accrue to small businesses in the groundfish fishery. Furthermore, because halibut bycatch is unavoidable in the trawl fisheries, is fully accounted for in quota setting in the directed halibut fishery, and is otherwise discarded, the PSD program imposes no adverse impacts on halibut fishing or on the resource.

The authorized distributor, Northwest Food Strategies, is now believed to provide the single most important source of protein for hunger relief in the United States, delivering nearly 14 million seafood meals to hungry Americans since 1933. This non-profit organization is dominant in its field of seafood distribution to hunger-relief agencies (1.8 million pounds in 1999), and as such, is not considered a small entity. Other non-profit agencies that would be expected to apply in the future are likely to be small entities. However, a limited number of these applications is anticipated because donated distributors attempt to equate the number of distributors to available vessel participants and donated product.

The participating processors, Unisea, Inc., and Alyeska Seafoods, Inc., are not considered small entities because they are owned by corporations that employ greater than 500 people, in all of their holdings, combined. Other processors that are likely to be authorized to process trawl-caught halibut for this program (predominantly in Dutch Harbor, Alaska) also are not considered small entities. This program would be totally voluntary. NMFS anticipates that no processor that qualifies as a small entity would elect to participate in the voluntary program if the costs of doing so imposed a significant adverse economic burden.

The ability to donate trawl-caught halibut may indeed reduce costs to small entities (catcher vessels) because this program would eliminate the need for the catcher vessel to return halibut bycatch that is sorted shoreside to Federal waters for disposal.

This proposed regulatory amendment has been determined to be not significant for purposes of Executive Order 12866.

Pursuant to section 7 of the Endangered Species Act (ESA), NMFS has completed a consultation on the effects of the groundfish fishery on listed species. Reasonable and prudent alternatives have been implemented to mitigate the adverse impacts of the pollock fisheries on the western population of Steller sea lions and its critical habitat (65 FR 3892, January 25, 2000, and extended at 65 FR 36795, June 12, 2000). NMFS also completed consultations on the effects of the 2000 Bering Sea and Aleutian Islands (BSAI) groundfish fisheries on listed species, and on critical habitat. These consultations were completed December 23, 1999, and concluded that the proposed fisheries were not likely to cause jeopardy or adverse modification to designated critical habitat. However, in an order dated January 25, 2000, the District Court for the Western District of Washington concluded that NMFS must consult pursuant to section 7 of the ESA on the fishery management plans for the groundfish fisheries of the BSAI and GOA. Greenpeace v. NMFS, Civ. No. 98-49ZZ (W.D. Wash.). Prior to the issuance of the Court’s order, NMFS had begun consultation to evaluate the cumulative effects of the BSAI and Gulf of Alaska (GOA) groundfish fisheries over a multi-year period on candidate and listed species and critical habitat. NMFS is currently reviewing this ongoing consultation for compliance with the Court’s order and will continue consultation. NMFS has determined that this proposed rule, if implemented, would not result in an irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable or prudent alternative measures that may be necessary.

The area in which this proposed action is planned has been identified as essential fish habitat (EFH) for species managed by the Council. No adverse impacts to EFH are anticipated from this action and, therefore, no consultation is required.

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 Paperwork Reduction Act (PRA), unless that collection of information displays a currently valid OMB control number.

This proposed rule contains collection-of-information requirements subject to the PRA. The collection of this information has been approved by the Office of Management and Budget under OMB control number 0648-0316. Public reporting burden (per individual) for these collections of information, including both salmon and halibut donations, is estimated to average as follows: 40 hours every 3 years per application and 40 hours per year for completing a list of vessels and processors for a NMFS authorized distributor; 9 hours per year (0.1 hrs for 90 processing days) for vessel and processor labeling and product tracking documentation; and 15 minutes per year for vessels/processor documentation. The estimated response times listed include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES).

The President has directed Federal agencies to use plain language when communicating with the public, through regulation or otherwise. Therefore, NMFS seeks public comment on any ambiguity or unnecessary complexity arising from the language used in this proposed rule (see ADDRESSES).

List of Subjects in 50 CFR Part 679

• Alaska
• Fisheries
• Recordkeeping and reporting requirements

For the reasons set forth 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 § 679.26, the section heading, paragraphs (a)(2) and (b)(3)(iv) are revised to read as follows: