[Federal Register Volume 69, Number 166 (Friday, August 27, 2004)]
[Rules and Regulations]
[Pages 52609-52612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19622]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 040427134-4230-02; I.D. 042004D]
RIN 0648-AR64


Fisheries of the Exclusive Economic Zone Off Alaska; Fish Meal

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

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule to allow processors to use the offal 
from

[[Page 52610]]

Pacific salmon (salmon) and Pacific halibut (halibut) intended for the 
Prohibited Species Donation (PSD) program for commercial products 
including fish meal, fish oil, and bone meal. This action is necessary 
to change current regulations which prohibit the sale of any parts of 
salmon or halibut that are processed under the PSD program. This action 
is intended to promote the objectives of the PSD program and the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act).

DATES: Effective on September 27, 2004.

ADDRESSES: Copies of the Categorical Exclusion and Regulatory Impact 
Review (RIR) prepared for this action, and the Environmental 
Assessments prepared for Amendments 26/29 and Amendments 50/50 to the 
Alaska groundfish fishery management plans, may be obtained from NMFS, 
Alaska Region, P.O. Box 21668, Juneau, AK 99802, Attn: Lori Durall.

FOR FURTHER INFORMATION CONTACT: Jason Anderson, 907-586-7228, or 
[email protected].

SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the 
Exclusive Economic Zone of the Bering Sea and Aleutian Islands 
management area (BSAI) and the Gulf of Alaska (GOA) under the Fishery 
Management Plan for Groundfish Fishery of the Bering Sea and Aleutian 
Islands Area and the Fishery Management Plan for the Groundfish of the 
Gulf of Alaska (FMPs). The North Pacific Fishery Management Council 
(Council) prepared, and NMFS approved, the FMPs under the authority of 
the Magnuson-Stevens Act (16 U.S.C. 1801 et seq.). Regulations 
implementing the FMPs appear at 50 CFR part 679. General regulations 
governing U.S. fisheries also appear at 50 CFR part 600.

Background

    Prohibited species are defined at 50 CFR 679.2 to include all 
species of Pacific salmon, steelhead trout, Pacific halibut, Pacific 
herring, king crab and Tanner crab caught by a vessel regulated under 
part 679 while fishing for groundfish in the BSAI or GOA.
    All prohibited species catch (PSC) is to be avoided, but if caught 
while fishing for groundfish, prohibited species must be returned to 
the sea with a minimum of injury, under regulations at 50 CFR 679.21.
    Some groundfish fishing vessels are incapable of sorting their 
catch at sea, and deliver their entire catch to an onshore processor or 
a processor vessel. Sorting and discarding of prohibited species occurs 
at delivery. To reduce the amount of edible protein discarded in that 
process, the Council initially recommended the PSD program for salmon, 
which was implemented by NMFS in 1996. The program was expanded to 
include halibut in 1997. Regulations implementing the PSD program are 
found at 50 CFR 679.26.
    The PSD program allows PSC salmon and halibut to be processed and 
distributed through tax-exempt hunger relief organizations. The 
implementing regulations prohibit authorized distributors and persons 
conducting activities supervised by authorized distributers from 
consuming or retaining prohibited species for personal use. They may 
not sell, trade or barter any prohibited species that are retained 
under the PSD program.
    In 2001, processors stopped retaining salmon under the PSD program 
because current regulations prohibit them from processing and selling 
the waste parts of salmon (e.g., heads, guts, bones, skin) that are not 
distributed under the PSD program. Processors found it impractical to 
separate this offal from the leftover parts of commercial groundfish, 
which they render into meal and oil, products that may be marketed.
    To stop the processing of PSC salmon and halibut for this reason, 
however, would defeat the PSD program's purpose of donating fish for 
hunger relief that otherwise would be discarded. Therefore, NMFS 
Enforcement issued an advisory bulletin on April 4, 2002 (Information 
Bulletin 02-30), stating that NMFS would not enforce regulations that 
prohibit converting halibut or salmon offal into meal under the PSD 
program. According to the bulletin, ``NMFS does not believe that 
retention of Pacific halibut or salmon heads and guts for meal 
constitutes sufficient potential for revenue to undermine the intent of 
the PSD program. Rather, concern continues to be focused on prohibiting 
the sale, trade or barter of edible flesh. Therefore, NMFS intends to 
propose regulations that would clarify the conditions under which parts 
of prohibited species may be retained by a processor in a manner that 
would not undermine the intent of the PSD program.''
    This action amends the PSD program regulations at 50 CFR 679.26(d) 
to allow processors to convert offal from salmon or halibut that has 
been prepared for the PSD program into fish meal, fish oil, or bone 
meal, and retain the proceeds from the sale of these products. This 
action was described in the proposed rule published May 5, 2004 (69 FR 
25056). Comments on the proposed rule were invited through June 4, 
2004, and are summarized and responded to below. The final rule remains 
unchanged from the proposed rule.

Comments and Responses

    Three letters of comment were received on the proposed rule that 
contained eight unique comments. Comments are summarized and responded 
to here.
    Comment 1: The proposed rule states that the Chief Counsel for 
Regulation, Department of Commerce certified to the Chief Counsel for 
Advocacy of the Small Business Administration (SBA) that the proposed 
rule, if adopted, would not have a significant economic impact on a 
substantial number of small entities. This certification is based on 
large processors and fails to address the broader issue of the effects 
of fish meal production to small, wild salmon fishermen displaced by 
the fish meal being shipped to Chile as food for farmed salmon. These 
farmed fish are marketed in direct competition with wild salmon 
harvested in Alaska.
    Response: The Regulatory Flexibility Act requires NMFS to address 
the effects of a Federal action only on directly regulated small 
entities. None of the directly regulated entities in this action meet 
the SBA's criteria for a small entity. Therefore, the certification 
provided to the Chief Counsel for Advocacy of the SBA is appropriate.
    Comment 2: Salmon from the PSD program has not been received by or 
benefitted the hunger and humanitarian organizations located in the 
area where these intercepted salmon were destined. What assurances are 
provided to ensure that all the PSD program fish will not be diverted 
into the production of animal feed instead of direct human consumption, 
as intended?
    Response: Regulations at 50 CFR 679.26 govern the PSD program. 
Under these regulations, all processing, handling, and distribution of 
salmon and halibut must be carried out under the direction of an 
authorized distributor. An authorized distributor must submit an 
application which describes its plan for distributing fish to 
specifically named food bank networks and hunger relief agencies. This 
plan must be reviewed and approved by the Regional Administrator. NMFS 
only authorizes distributors who meet the minimum requirements listed 
under Sec.  679.26(b). With the exception of offal used for fish meal 
as authorized under this action, halibut or salmon that are not 
processed under the direction of an authorized distributor or are sold 
for purposes other than human consumption is a violation of PSD program 
regulations and subject to enforcement action. Seashare, formerly

[[Page 52611]]

Northwest Food Strategies, is a non-profit organization that has 
participated as an authorized distributor since the PSD program's 
inception and is currently the only authorized distributor permitted to 
participate.
    Comment 3: Currently, fisheries managers do not have sufficient 
data on the distribution of salmon from western Alaska in the BSAI and 
GOA due to financial constraints. If overfishing of certain western 
Alaska populations of chum and chinook salmon occurs, conservation 
measures will impact all users of fisheries resources in Alaska, 
including the general public. To prevent overfishing of these salmon 
stocks, initiatives to collect genetic information to determine the 
origin of salmon incidentally harvested in the Alaska groundfish 
fisheries should be accelerated.
    Response: This action is intended to promote the objectives of the 
PSD program and does not regulate scientific information collection. 
This comment is outside the scope of this final rule; however, the 
following response provides general information on this topic.
    Currently, research is being conducted by several countries, 
including the United States, under the Bering-Aleutian International 
Salmon Survey (BASIS). One research component of the BASIS program is 
to conduct biological and stock identification analyses designed to 
determine growth and life history characteristics of regional salmon 
stocks. Although results of this research initiative are not yet 
available, the stock identification analysis will be based on genetic, 
parasite, scale, otolith, and tag data collected over 5 years of 
international cooperative research cruises. Extensive information on 
the BASIS program can be found a www.afsc.noaa.gov/abl/occ/basis.htm. 
Genetic information collected under the BASIS program is part of an 
effort that includes NMFS and the State of Alaska to establish new 
baseline standards using DNA markers.
    NMFS will continue to work internally to obtain necessary data 
through data collection programs to meet the needs of scientists. Any 
new or accelerated data collections, including those required for 
genetic analyses, would need to be prioritized and balanced with 
available funding and many existing and ongoing management and stock 
assessment data collections.
    Comment 4: While it may be impractical to separate offal from 
salmon and halibut intended for the PSD program, allowing processors to 
profit from the sale of fish meal, fish oil, and bone meal made from 
these species is not the intent of the PSD program. Allowing the sale 
of products made from prohibited species does not deter the processor 
from trying to prevent the incidental catch of salmon. Salmon should 
continue to be donated under the PSD program. However, a certain 
percentage of the profits made from any byproduct of salmon or halibut 
should also be donated to meet the original intent of the PSD program.
    Response: This action will generate relatively insignificant 
revenue for processors. Fish meal from whitefish sells for $0.24 - 
$0.30 per pound. Generally fish meal from salmon and halibut is mixed 
in with the whitefish meal from groundfish species. The revenue from 
fish meal derived from the PSD program would be very small compared 
with total fish meal produced by the participating processors. The RIR 
prepared for this action (see ADDRESSES) describes the costs fishermen 
must bear, including using scarce space on vessels to store PSD program 
fish and maintaining fish in a condition fit for human consumption. 
Processors also incur costs for accepting delivery, handling the 
appropriate paperwork and processing and storing the fish. The RIR 
estimates approximately $1,500 in revenue from salmon meal processed 
from PSD program fish for one processor of BSAI pollock. This amount is 
0.025 percent of its nearly $6 million in revenue from pollock fish 
meal, and likely less than the cost incurred by the processor to 
participate in the PSD program. Therefore, the handling of salmon and 
halibut under the PSD program probably results in a net cost to 
processors and fishermen and could contribute toward incentives to 
avoid incidental catches of salmon and halibut to the extent possible.
    Comment 5: At least 70 percent of fish caught die when returned to 
the sea. All catch of fish should be avoided. Catching fish and 
throwing them back to die is ridiculous.
    Response: In order to eliminate any incentive for the groundfish 
fleet to target commercially exploited species that already support 
their own commercial fishery off Alaska, the BSAI and GOA FMPs prohibit 
the groundfish fisheries from retaining certain non-groundfish species. 
These prohibited species include all species of salmon, king and Tanner 
crabs, Pacific halibut, and Pacific herring. Annual prohibited species 
catch (PSC) limits are established that, when reached, result in 
specified fishery closures. Any incidentally caught prohibited species 
must be returned to the sea as soon as possible, with minimal injury. 
The exception to this discard rule is the PSD program which, as 
described above, was adopted by the Council to reduce the amount of 
edible protein discarded by some groundfish vessels without creating an 
incentive to target these species.
    Incidental catch of non target groundfish also occurs and often is 
unavoidable. In recognition of this, NMFS and the Council have adopted 
management measures designed to create incentives to avoid bycatch when 
possible and to decrease regulatory and economic discards when it is 
not.
    Comment 6: Processors should not find it impractical to separate 
halibut and salmon offal from parts of leftover groundfish. The 
proposed action only benefits processors, and is contrary to the intent 
of Congress and the public. The agency should require processors to 
separate offal from other groundfish parts.
    Response: Under the current PSD program, processors may choose to 
process salmon for distribution through a NMFS-authorized distributer. 
However, processors found it impractical to separate PSD program 
halibut and salmon offal from the offal of other groundfish. 
Consequently, these processors chose not to participate in the PSD 
program and incidentally caught halibut and salmon were discarded at 
sea. This defeats the intent of the Council and the PSD program's 
purpose of donating fish for hunger relief that otherwise would be 
discarded. Participation in the PSD program is voluntary. Requiring 
processors to separate the offal of PSD program halibut and salmon from 
the offal of other groundfish species likely lead to processors 
choosing not to participate in the PSD program. This action allows 
processors to process salmon and halibut waste parts into fish meal 
along with offal from other species. NMFS believes this allowance will 
improve efficiency of the groundfish trawl fisheries without increasing 
incidental catch of salmon and halibut and is consistent with the 
Magnuson-Stevens Act.
    Comment 7: I disagree with NMFS' determination that retention of 
halibut and salmon for meal does not constitute sufficient potential 
for revenue.
    Response: Please see the response to Comment 4.
    Comment 8: Historically, the fishing industry has a tendency to 
overfish resources if allowed to do so. This rule encourages 
overfishing and is not within the intent of the public and the 
Magnuson-Stevens Act.
    Response: The handling of salmon and halibut under the PSD program

[[Page 52612]]

likely results in a net cost to processors and fishermen, and does not 
create incentives to increase incidental catch of prohibited species. 
Processors who participate in the PSD program do so on a voluntary 
basis at a net cost because the salmon and halibut are donated. While 
an unregulated fishery does tend to overfish its resource, the salmon, 
halibut and groundfish resources involved are closely monitored and 
regulated to prevent overfishing. When PSC or groundfish limits are 
reached, management measures are imposed which may include closing the 
fishery. After nearly 30 years of management under the Magnuson-Stevens 
Act, none of these resources are showing signs of being overfished. 
Therefore, NMFS does not expect overfishing to occur from this action, 
and it is consistent with the intent of the Magnuson-Stevens Act.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. NMFS received one comment, addressed above, regarding this 
certification. This comment did not cause NMFS to change its 
determination regarding the certification.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: August 23, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set forth in the preamble, 50 CFR part 679 is amended 
as follows:

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

0
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.; 16 U.S.C. 1540(f); Pub. L. 105-277, Title II of Division C; 
Pub. L. 106-31, Sec. 3027; and Pub L. 106-554, Sec. 209.

0
2. In Sec.  679.26, paragraph (d)(3) is revised to read as follows:


Sec.  679.26  Prohibited Species Donation Program.

* * * * *
    (d) * * *
    (3) Authorized distributors and persons conducting activities 
supervised by authorized distributors may retain prohibited species 
only for the purpose of processing and delivering the prohibited 
species to hunger relief agencies, food networks or food distributors 
as provided by this section. Such persons may not consume or retain 
prohibited species for personal use and may not sell, trade or barter, 
or attempt to sell, trade or barter any prohibited species that is 
retained under the PSD program, except that processors may convert 
offal from salmon or halibut that has been retained pursuant to the PSD 
program into fish meal, fish oil, or bone meal, and sell or trade these 
products.
* * * * *
[FR Doc. 04-19622 Filed 8-26-04; 8:45 am]
BILLING CODE 3510-22-S