[Federal Register: August 27, 2004 (Volume 69, Number 166)]
[Rules and Regulations]
[Page 52609-52612]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27au04-11]
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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
jason.anderson@noaa.gov.
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 http://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