[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Proposed Rules]
[Pages 24750-24754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12200]



=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 672 and 675

[Docket No. 960503125-6125-01; I.D. 040996A]
RIN 0648-AH03


Groundfish of the Gulf of Alaska; Groundfish Fishery of the 
Bering Sea and Aleutian Islands; Salmon Donation Program

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS issues this proposed rule to implement Amendment 26 to 
the Fishery Management Plan for the Groundfish Fishery of the Bering 
Sea and Aleutian Islands Area and Amendment 29 to the Fishery 
Management Plan for Groundfish of the Gulf of Alaska (FMPs). This rule 
would authorize a voluntary Salmon Donation Program (SDP) for 
distribution of Pacific salmon taken as bycatch in the groundfish trawl 
fisheries off Alaska to economically disadvantaged individuals by tax-
exempt organizations through a NMFS-authorized distributor. This action 
would support industry initiatives to reduce waste from discard in the 
groundfish fisheries by processing salmon bycatch for human 
consumption. This action is intended to promote the goals and 
objectives of the FMPs that govern the commercial groundfish fisheries 
off Alaska.

DATES: Comments must be received by July 1, 1996.

ADDRESSES: Comments should be sent to Ronald J. Berg, Chief, Fisheries 
Management 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. Copies of Amendments 26 and 29 and the 
Environmental Assessment/Regulatory Impact Review (EA/RIR) prepared for 
the amendments may be obtained from the North Pacific Fishery 
Management Council, 605 West 4th Ave., Suite 306, Anchorage AK 99510-
2252; telephone: 907-271-2809. Send comments regarding burden estimates 
or any other aspect of the data requirements, including suggestions for 
reducing the burdens, to NMFS and to the Office of Information and 
Regulatory Affairs, OMB, Washington, DC 20503, Attn: NOAA Desk Officer.

FOR FURTHER INFORMATION CONTACT: Susan J. Salveson, 907-586-7228.

SUPPLEMENTARY INFORMATION: Fishing for groundfish by U.S. vessels in 
the exclusive economic zone of the Gulf of Alaska (GOA) and Bering Sea 
and Aleutian Islands management area (BSAI) is managed by NMFS 
according to the respective FMPs for the groundfish fisheries of the 
GOA and BSAI. The FMPs were prepared by the North Pacific Fishery 
Management Council (Council) under the Magnuson Fishery Conservation 
and Management Act (16 U.S.C. 1801, et seq.) (Magnuson Act) and are 
implemented by regulations governing the U.S. groundfish fisheries at 
50 CFR parts 672, 675, and 676. General regulations that also pertain 
to U.S. fisheries are codified at 50 CFR part 620.

[[Page 24751]]

    This action proposes regulations to implement Amendment 26 to the 
Fishery Management Plan for the Groundfish Fishery of the Bering Sea 
and Aleutian Islands Area and Amendment 29 to the Fishery Management 
Plan for Groundfish of the Gulf of Alaska. If approved by NMFS, these 
amendments would authorize the distribution of Pacific salmon taken as 
bycatch in the groundfish trawl fisheries off Alaska to economically 
disadvantaged individuals by tax-exempt organizations through a NMFS 
authorized distributor. A description of, and reasons for, the proposed 
measure are presented below.

Background

    The Alaska groundfish trawl fisheries result in incidental fishing 
mortality of non-groundfish species. Often these species could be fully 
utilized in other fisheries but must be discarded in the groundfish 
fisheries. Of particular concern is the incidental fishing mortality of 
Pacific salmon. During 1993, 1994, and 1995 respectively, 289,284, 
141,037, and 45,934 Pacific salmon were estimated to have been caught 
in the BSAI groundfish fishery; 105,348, 54,613, and 79,617 salmon were 
estimated to have been caught in the GOA groundfish fishery. Actions 
have been taken to address various aspects of the salmon bycatch 
problem. NMFS implemented regulations to require the discard of salmon 
taken in the BSAI groundfish fisheries to be counted by a NMFS-
certified observer (59 FR 18757, April 20, 1994). The intent of this 
requirement is to collect more data on salmon bycatch. In addition, 
NMFS issued three experimental fishing permits (EFPs) under regulations 
at Sec. 675.6 to test the feasibility of distributing salmon bycatch as 
food to economically disadvantaged individuals for purposes of reducing 
both salmon bycatch and protein discard in the groundfish trawl 
fisheries.
    The first EFP was issued on August 12, 1993 (58 FR 42947), and was 
designed to test the feasibility of mandatory retention of all salmon 
caught incidentally by permitted vessels in three specified trawl 
fisheries. The objective of this EFP was to reduce both the bycatch and 
discard of salmon in the groundfish trawl fisheries by requiring 
participants to incur the costs of processing salmon for distribution 
to economically disadvantaged individuals by tax-exempt organizations.
    The second EFP issued by NMFS authorized voluntary retention and 
processing of salmon bycatch for donation to charitable organizations 
(59 FR 39326, August 2, 1994). The purpose of the second EFP was to 
develop standards and criteria for the voluntary retention of salmon 
under an SDP that was being considered by the Council. The first 
voluntary retention EFP expired at the end of the 1995 pollock roe 
season and the 1995 directed trawl fishery for Pacific cod. The third 
EFP issued by NMFS (60 FR 43587, August 22, 1995) extended the second 
EFP for an additional year. The second voluntary retention EFP expires 
after the closure of the 1996 pollock roe season and the 1996 directed 
trawl fishery for Pacific cod.
    An Interim and a Final Report from the first EFP concluded that a 
mandatory salmon retention requirement and associated SDP could be 
effective at reducing salmon bycatch and discards. Results presented in 
the Final Report from the second EFP indicated that a voluntary 
retention and processing system and associated SDP would be equally 
successful at reducing salmon discard amounts but that incentives to 
reduce salmon bycatch would be negated when the permit was approved on 
a voluntary basis. A summary of these reports can be found in the EA/
RIR (see ADDRESSES). Results from the third EFP are due in May 1996.
    At its September 1994 meeting, the Council approved Amendments 26 
and 29 that would authorize the implementation of an SDP, pending the 
availability of data from the voluntary EFP that would be used to 
develop regulatory standards and criteria for the SDP. The success of 
these EFPs prompted the Council and NMFS to propose regulations to 
authorize an SDP to reduce salmon discard in the groundfish fisheries 
off Alaska.

Description of the Salmon Donation Program

    The SDP's objective is to distribute salmon taken as bycatch in the 
groundfish trawl fisheries off Alaska to economically disadvantaged 
individuals by tax-exempt organizations, thereby reducing waste from 
discards in the groundfish trawl fisheries. Participants in the SDP 
would retain and process salmon bycatch for delivery to an authorized 
distributor selected by NMFS. Participation in the SDP would be 
voluntary. Vessels and processors would incur the costs of handling, 
processing, storing, and delivering donated salmon to tax-exempt 
organizations.

Selection Process for Authorized Distributors

    The Director, Alaska Region, NMFS, (Regional Director) would select 
an authorized distributor(s) from qualified applicants, announce the 
NMFS-authorized distributor(s) in the Federal Register, and issue an 
SDP permit to each selected applicant. An SDP permit would be effective 
for a period of 3 years after announcement of the authorized 
distributor(s) in the Federal Register.
    Factors that would be considered by the Regional Director when 
selecting an authorized distributor are listed in this proposed rule at 
Sec. 672.28(b)(2). The number of authorized distributors selected by 
the Regional Director would be based on the criteria listed in this 
proposed rule at Sec. 672.28(b)(2).

Responsibilities of an Authorized Distributor

    An authorized distributor would be responsible for monitoring the 
retention and processing of salmon donated by vessels and processors. 
An authorized distributor also would coordinate the processing, 
storage, transportation, and distribution of salmon to hunger relief 
agencies, food bank networks, and food bank distributors.
    Prior to retaining any salmon under the SDP, the authorized 
distributor would provide the Regional Director with a list of all 
participants in the SDP, including a list of all vessels and 
processors, a list of hunger relief agencies, food bank networks, and 
food distributors participating in the SDP, and a list of locations 
where salmon must be delivered by the vessels and processors. The list 
of vessels and processors provided by the authorized distributor would 
include the following information: (1) A Federal fisheries permit 
number or Federal processor permit number, (2) the name of the owner or 
responsible operator, and (3) a telephone number fax number. If an 
authorized distributor modifies the list of vessels or processors 
participating in the SDP or changes delivery locations, the authorized 
distributor would be required to submit a revised list of vessels and 
processors or delivery locations to the Regional Director before salmon 
bycatch could be retained by any additional vessel or processor or 
delivered to any new delivery location.

Reporting Requirements--Documentation and Labeling

    Participants in the SDP 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 salmon contained in the package, and the 
words, ``NMFS SALMON DONATION PROGRAM--

[[Page 24752]]

NOT FOR SALE--PERISHABLE PRODUCT--KEEP FROZEN''.
    A processor retaining or receiving salmon under the SDP and an 
authorized distributor 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 salmon. Such documentation would be retained until 1 year after 
the effective period of the SDP permit.

Responsibilities of Participating Vessels and Processors

    All donated salmon would be required to be processed so that it is 
fit for human consumption. All BSAI participants would be required to 
comply with regulations at Secs. 675.7(p) and 675.20(c) that would 
provide for the collection of biological samples and scientific data by 
an NMFS-certified observer prior to processing salmon under the SDP. 
Participation in the SDP would not relieve any vessel or processor from 
existing reporting requirements.

Delegation of Authority

    Under NOAA Administrative Order 205-11, 7.01, dated December 17, 
1990, the Under Secretary for Oceans and Atmosphere has delegated, to 
the Assistant Administrator for Fisheries, NOAA, the authority to sign 
material for publication in the Federal Register.

Classification

    Section 304(a)(1)(D) of the Magnuson Act requires NMFS to publish 
regulations proposed by a Council within 15 days of receipt of an FMP 
amendment and regulations. At this time, NMFS has not determined that 
the FMP amendments these rules would implement are consistent with the 
national standards, other provisions of the Magnuson Act, and other 
applicable laws. NMFS, in making that determination, will take into 
account the data, views, and comments received during the comment 
period.
    The Assistant General Counsel 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, 
would not have a significant economic impact on a substantial number of 
small entities. Any vessel or processor may participate in a voluntary 
salmon donation program if an NMFS distributor is selected by the 
Regional Director, and the authorized distributor includes the vessel 
or processor on the list of participants under the SDP that is 
submitted to the Regional Director. NMFS does not anticipate that any 
vessel or processor that qualifies as a small entity would elect to 
participate in the voluntary program if the cost of doing so reduces 
gross annual receipts by 5 percent or more. As a result, a regulatory 
flexibility analysis was not prepared.
    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    This proposed rule contains a new collection-of-information 
requirement subject to the Paperwork Reduction Act. This collection-of-
information requirement has been submitted to the Office of Management 
and Budget (OMB) for approval. The new information requirements include 
an application to participate as an authorized distributor in the SDP, 
documentation requirements for the authorized distributor(s) and 
processors participating in the SDP, and packaging requirements for 
vessels and processors. Public reporting burden for these collections 
of information are estimated to average 40 and 0.1 hours respectively 
for the permit and packaging requirements, and 40 and 0.25 hours per 
year for the documentation requirements and identification information. 
Send comments regarding burden estimates or any other aspect of the 
data requirements, including suggestions for reducing the burdens, to 
NMFS and 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 Parts 672 and 675

    Fisheries, Reporting and recordkeeping requirements.

    Dated: May 7, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service
    For the reasons set out in the preamble, 50 CFR parts 672 and 
675 are proposed to be amended as follows:

PART 672--GROUNDFISH OF THE GULF OF ALASKA

    1. The authority citation for part 672 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    2. In Sec. 672.7, paragraph (r) is added to read as follows:


Sec. 672.7  Prohibitions.

* * * * *
    (r) Retain or possess salmon, except as permitted under the Salmon 
Donation Program as provided by Sec. 672.28 of this part, or as 
authorized by other applicable law.
    3. In Sec. 672.20, paragraph (e)(2) is revised to read as follows:


Sec. 672.20  General limitations.

* * * * *
    (e) * * *
    (2) A vessel must sort its catch as soon as possible after 
retrieval of the catch and except to allow for sampling by an observer 
(if any) and except as permitted to do so under the Salmon Donation 
Program as provided by Sec. 672.28, and must return any catch of 
prohibited species, or parts thereof, to the sea immediately after 
sorting regardless of its condition. A vessel must handle prohibited 
species to be discarded in a manner that minimizes additional injury.
* * * * *
    4. Section Sec. 672.28 is added to read as follows:


Sec. 672.28  Salmon Donation Program.

    (a) Definitions. For purposes of this section:
    Authorized distributor means a tax-exempt organization authorized 
by NMFS to coordinate the processing, storage, transportation, and 
distribution of salmon taken as bycatch in the groundfish trawl 
fisheries to tax-exempt hunger relief agencies, food bank networks, and 
food bank distributors.
    Food bank distributor means a tax-exempt organization with the 
primary purpose of distributing food resources to hunger relief 
agencies.
    Food bank network means a tax-exempt organization with the primary 
purpose of coordinating receipt and delivery of food resources to its 
member food bank distributors or hunger relief agencies.
    Hunger relief agency means a tax-exempt organization with the 
primary purpose of feeding economically disadvantaged individuals free 
of charge.
    SDP means the Salmon Donation Program established under this 
section.
    SDP permit means a permit issued by NMFS to an applicant who 
qualifies as an authorized distributor for purposes of the SDP.
    Tax-exempt Organization means an organization that received a 
determination letter from the Internal Revenue Service recognizing tax 
exemption under 26 CFR part 1 (Secs. 1.501 to 1.640).
    (b) Authorized distributors--(1) Application. An applicant seeking 
to become an authorized distributor must

[[Page 24753]]

provide the Regional Director with following information:
    (i) Proof of the applicant's tax-exempt status.
    (ii) A description of the arrangements for processing, shipping, 
storing, and transporting donated salmon and an estimate of the 
associated costs.
    (iii) A statement describing the applicant's expertise in providing 
for the distribution of food product from remote Alaskan locations to 
hunger relief agencies, food bank networks, or food bank distributors, 
including arrangements for transportation, distribution costs, and 
product quality control.
    (iv) Documentation of support from cold storage and transportation 
facilities.
    (v) A proposed operating budget that is adequate to ensure that 
salmon donated under this program will be distributed to hunger relief 
agencies, food bank networks, or food bank distributors and that the 
salmon will be maintained in a manner fit for human consumption.
    (vi) Proof of the applicant's ability to obtain and maintain 
adequate funding for the distribution of salmon under the SDP.
    (vii) A copy of the applicant's articles of incorporation and 
bylaws showing that the purpose of the applicant includes providing 
food resources to hunger relief agencies, food bank networks, or food 
bank distributors.
    (viii) Proof of the applicant's ability to take full responsibility 
for the documentation and disposition of salmon received under the SDP, 
including sufficient liability insurance to cover public interests 
relating to the quality of salmon distributed for human consumption.
    (ix) Quality control criteria to be followed by vessels, 
processors, hunger relief agencies, food bank networks, and food bank 
distributors.
    (x) The number of vessels and processors that the applicant is 
capable of administering effectively.
    (xi) A list of all vessels and processors, food bank networks and 
food bank distributors participating in the SDP. The list of vessels 
and processors must include:
    (A) The vessel's or processor's Federal fisheries permit number or 
Federal processor permit number.
    (B) the name of the vessel owner or responsible operator or the 
name of the owner or plant manager of the processor.
    (C) the vessel's or processor's telephone number and fax number.
    (D) the signature of the vessel owner or responsible operator or 
the owner or plant manager of the processor.
    (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 SDP 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 SDP.
    (xiii) A list of locations where salmon must be delivered by 
participating vessels and processors.
    (2) Selection. The Regional Director may select one or more 
authorized distributors under the SDP based on the information 
submitted by applicants under paragraph (b)(1) of this section. The 
number of authorized distributors selected by the Regional Director 
will be based on the following criteria:
    (i) The number and qualifications of applicants for SDP permits.
    (ii) The number of harvesters and the quantity of salmon that 
applicants can effectively administer.
    (iii) The anticipated level of salmon bycatch based on the salmon 
bycatch from previous years.
    (iv) The potential number of vessels and processors participating 
in the groundfish trawl fisheries.
    (3) SDP Permit. (i) After review of qualified applicants, the 
Regional Director will announce the selection of authorized 
distributor(s) in the Federal Register and will issue SDP permit(s).
    (ii) The Regional Director may impose additional terms and 
conditions on an SDP permit consistent with the objectives of the SDP.
    (iii) An SDP permit may be suspended, modified, or revoked for 
noncompliance with terms and conditions specified in the permit or for 
a violation of this section or other regulations in this part or part 
675.
    (iv) An SDP permit remains in effect for a 3-year period after the 
selection notice is published in the Federal Register unless suspended 
or revoked. An SDP may not be transferred. An SDP permit issued to an 
authorized distributor may be renewed following the application 
procedures in this section.
    (v) If the authorized distributor modifies any information on the 
SDP permit application submitted under (b)(1)(x) or (b)(1)(xii) of this 
section, the authorized distributor must submit a modified list of 
participants or a modified list of delivery locations to the Regional 
Director.
    (c) Reporting and Recordkeeping Requirements. (1) A vessel or 
processor retaining salmon under the SDP must comply with all 
applicable recordkeeping and reporting requirements. A vessel or 
processor participating in the SDP must comply with applicable 
regulations at Secs. 672.7(o), 675.7(p), and 675.20(c) that allow for 
the collection of data and biological sampling by an NMFS-certified 
observer prior to processing any salmon under the SDP.
    (2) Salmon retained under the SDP 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 salmon 
contained in the package and the words, ``NMFS SALMON DONATION 
PROGRAM--NOT FOR SALE--PERISHABLE PRODUCT--KEEP FROZEN''.
    (3) A processor retaining or receiving salmon under the SDP 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 salmon. Such documentation must be retained until 1 year after 
the effective period of the SDP permit.
    (d) Processing, handling, and distribution. (1) Processing and 
reprocessing of all salmon retained under the SDP must be carried out 
under the direction of the authorized distributor. A processor 
retaining or receiving salmon under the SDP, at a minimum, must head, 
gut and freeze the salmon in a manner that makes it fit for human 
consumption.
    (2) Salmon that are determined to be unfit for human consumption 
prior to delivery to an authorized distributor must be discarded under 
Sec. 672.20(e) or Sec. 675.20(c). Salmon that are determined to be 
unfit for human consumption after delivery to the authorized 
distributor must be destroyed in accordance with applicable sanitation 
laws and regulations.
    (3) Authorized distributors and persons conducting activities 
supervised by authorized distributors may retain salmon only for the 
purpose of processing and delivering the salmon to hunger relief 
agencies, food networks or food distributors as provided by this 
section. Such persons may not consume or retain salmon for personal use 
and may not sell, trade or barter, or attempt to sell, trade or barter 
any salmon that is retained under the SDP.
    (4) No salmon bycatch 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

[[Page 24754]]

included on the list provided to the Regional Director under paragraphs 
(b)(1)(x), (b)(1)(xii), or (b)(3)(v) of this section.

PART 675--GROUNDFISH OF THE BERING SEA AND ALEUTIAN ISLANDS AREA

    5. The authority citation for part 675 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    6. In Sec. 675.7, paragraph (p) is revised and paragraph (s) is 
added to read as follows:


Sec. 675.7  Prohibitions.

* * * * *
    (p) Discard any salmon taken incidental to a directed fishery for 
groundfish by vessels using trawl gear until notified by an NMFS-
certified observer that the number of salmon taken has been determined 
and the collection of any scientific data or biological samples has 
been completed as provided at Sec. 675.20(c)(6) or retain salmon except 
as permitted to do so under the Salmon Donation Program as provided by 
Sec. 672.28 of this chapter.
* * * * *
    (s) Retain or possess salmon, except as permitted to do so under 
the Salmon Donation Program as provided by Sec. 672.28 of this chapter, 
or as authorized by other applicable law.
    7. In Sec. 675.20, paragraph (c)(6)(i) introductory text is revised 
to read as follows:


Sec. 675.20  General limitations.

* * * * *
    (c) * * *
    (6) * * * (i) Except as provided in paragraph (c)(6)(ii) of this 
section, the operator of a vessel and the manager of a shoreside 
processing operation may not discard any salmon or transfer or process 
any salmon under the Salmon Donation Program at Sec. 672.28 of this 
chapter if the salmon were taken incidentally to a directed fishery for 
groundfish by vessels using trawl gear until the number of salmon taken 
has been determined by an NMFS-certified observer and the collection of 
any scientific data or biological samples from the salmon has been 
completed.
* * * * *
    8. Section 675.28 is added to read as follows:


Sec. 675.28  Salmon Donation Program.

    The Salmon Donation Program is governed by provisions set forth in 
Sec. 672.28 of this chapter.
[FR Doc. 96-12200 Filed 5-15-96; 8:45 am]
BILLING CODE 3510-22-F