[Federal Register Volume 88, Number 225 (Friday, November 24, 2023)]
[Rules and Regulations]
[Pages 82740-82771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25513]



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Vol. 88

Friday,

No. 225

November 24, 2023

Part IV





 Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 679





Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and 
Aleutian Islands Halibut Abundance-Based Management of Amendment 80 
Prohibited Species Catch Limit; Final Rule

  Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / 
Rules and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket Number: 231114-0267]
RIN 0648-BL42


Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea 
and Aleutian Islands Halibut Abundance-Based Management of Amendment 80 
Prohibited Species Catch Limit

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement Amendment 123 to the 
Fishery Management Plan (FMP) for Groundfish of the Bering Sea and 
Aleutian Islands (BSAI) Management Area (BSAI FMP). This final rule 
amends the regulations governing limits on Pacific halibut 
(Hippoglossus stenolepis) (halibut) prohibited species catch (PSC) to 
link the halibut PSC limit for the Amendment 80 commercial groundfish 
trawl fleet in the BSAI groundfish fisheries to halibut abundance. This 
final rule is necessary to comply with the obligation in the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) 
that FMPs minimize bycatch to the extent practicable. It is also 
consistent with the Magnuson-Stevens Act's National Standards. This 
final rule is expected to minimize halibut mortality, and it may result 
in additional harvest opportunities in the commercial halibut fishery, 
as well as to the subsistence and recreational fisheries. This final 
rule is intended to promote the goals and objectives of the Magnuson-
Stevens Act, other applicable laws, and Amendment 123 to the BSAI FMP.

DATES: This rule is effective January 1, 2024.

ADDRESSES: Electronic copies of the Environmental Impact Statement 
(EIS) and the Social Impact Assessment (SIA) (collectively referred to 
as the ``Analysis'') and the Record of Decision (ROD) prepared for this 
final rule may be obtained from https://www.regulations.gov or from the 
NMFS Alaska Region website at https://www.fisheries.noaa.gov/region/alaska.
    Electronic copies of Tribal consultation and listening summaries 
prepared for this action may be obtained from the NMFS Alaska Region 
website at: https://www.fisheries.noaa.gov/alaska/consultations/alaska-fisheries-tribal-consultation-documents-and-workgroup.
    Electronic copies of North Pacific Fishery Management Council 
(Council) documents referenced in this final rule are available on the 
Council website at https://npfmc.org.
    Electronic copies of International Pacific Halibut Commission 
(IPHC) documents referenced in this final rule are available on the 
IPHC website at https://iphc.int.

FOR FURTHER INFORMATION CONTACT: Gretchen Harrington, 907-586-7228.

SUPPLEMENTARY INFORMATION: NMFS published a Notice of Availability 
(NOA) for Amendment 123 in the Federal Register on November 9, 2022 (87 
FR 67665), with public comments invited through January 9, 2023. On 
December 9, 2022, upon realization that supporting documents were not 
publicly available, NMFS extended the comment period on the NOA for the 
FMP amendment to February 7, 2023, with a document (87 FR 75569, 
December 9, 2022) to allow a 60-day public comment period on the 
proposed action with all supporting documents available. NMFS published 
a proposed rule to implement Amendment 123 in the Federal Register on 
December 9, 2022 (87 FR 75570) with public comment invited through 
January 23, 2023. NMFS received 69 comment letters on the proposed 
Amendment 123 and the proposed rule. Amendment 123 was approved on 
March 7, 2023. A summary of the comments and NMFS's responses are 
provided under the heading ``Comments and Responses'' below. 
Regulations governing U.S. fisheries and implementing the Magnuson-
Stevens Act are located at 50 CFR parts 600 and 679.

Background

    The following background sections describe the Amendment 80 Sector 
and associated fisheries, halibut PSC management in the BSAI groundfish 
fisheries, BSAI Amendment 123, and the halibut abundance indices used 
to set halibut PSC limits for the Amendment 80 sector and this final 
rule. A detailed review of the provisions of Amendments 123, the 
proposed regulations to implement Amendment 123, and the rationale for 
this action is provided in the preamble to the proposed rule and is 
briefly summarized in this final rule. This preamble uses specific 
terms (e.g., Amendment 80 sector, directed fishing) that are described 
in regulation and in the preamble to the proposed rule. Additional 
information is provided in the preamble of the proposed rule, the 
Analysis, and the ROD, and we refer the reader to those documents for 
additional detail.

Halibut PSC Management in the BSAI Groundfish Fisheries

    Halibut is an iconic, highly valued fish among commercial, 
recreational, charter, and subsistence fishermen. For the commercial 
fisheries that do not directly target halibut, NMFS regulates their PSC 
or bycatch of halibut. Every FMP must minimize bycatch (16 U.S.C. 
1853(a)(11)), to the extent practicable. The groundfish fisheries 
cannot be prosecuted without some level of halibut bycatch because of 
spatiotemporal overlap of groundfish and halibut. Regulations require 
the operator of any vessel fishing for groundfish in the BSAI to 
minimize the catch of prohibited species (Sec.  679.21(a)(2)(i)).
    Although halibut PSC results from all types of gear (i.e., trawl, 
hook-and-line, pot, and jig gear), halibut PSC primarily occurs in the 
trawl and hook-and-line groundfish fisheries. NMFS minimizes halibut 
bycatch to the extent practicable in the BSAI by: (1) establishing 
halibut PSC limits for trawl and non-trawl fisheries; (2) apportioning 
those halibut PSC limits to groundfish sectors, fishery categories, and 
seasons; and (3) managing groundfish fisheries to prevent PSC from 
exceeding the established limits. The following sections provide 
additional information on the process NMFS uses to establish, 
apportion, and manage halibut PSC limits in the BSAI.
    Halibut PSC limits in the groundfish fisheries provide a constraint 
on halibut PSC mortality and promote conservation of the halibut 
resource. Groundfish fishing is prohibited once a halibut PSC limit has 
been reached for a particular sector or season.
    The Council and NMFS have taken a number of management actions to 
minimize halibut bycatch to the extent practicable in the BSAI 
groundfish fisheries. Most recently, the Council adopted, and NMFS 
approved, Amendment 111 to the FMP in 2016 (81 FR 24714, April 27, 
2016). That amendment established the current halibut PSC limits for 
BSAI groundfish fisheries, which were considered to be an effective 
means to minimize bycatch to the extent practicable at that time. The 
current total annual halibut PSC limit for BSAI groundfish fisheries is 
3,515 metric tons (mt); from that total, 1,745 mt are apportioned to 
the Amendment 80 sector, which is composed of non-pollock trawl 
vessels.

[[Page 82741]]

The BSAI trawl limited access sector, which is composed of all other 
trawl catcher/processor and trawl catcher vessels, is apportioned 745 
mt. The BSAI non-trawl sector, which includes primarily hook-and-line 
catcher/processors, is apportioned 710 mt. The remaining 315 mt are 
apportioned to the Community Development Quota (CDQ) program, which is 
composed of vessels fishing for CDQ groups.

The Amendment 80 Sector and Associated Fisheries

    Fishing under the Amendment 80 Program began in 2008 (72 FR 52668, 
September 14, 2007). The Amendment 80 sector is comprised of trawl 
vessels, mostly owned by entities in the Seattle, Washington area, that 
participate in the BSAI groundfish fisheries other than the Bering Sea 
pollock fishery. The Amendment 80 species are identified in regulation 
(Sec.  679.2) as the following 6 species: BSAI Atka mackerel, Aleutian 
Islands Pacific ocean perch, BSAI flathead sole, BSAI Pacific cod, BSAI 
rock sole, and BSAI yellowfin sole. The Amendment 80 Program allocates 
a portion of the total allowable catch (TAC) limits of these species 
between the Amendment 80 sector and other fishery participants. The 
Amendment 80 Program also apportions crab and halibut PSC limits to 
constrain bycatch of these species while Amendment 80 vessels harvest 
groundfish.
    At its inception, the Amendment 80 Program allocated quota share 
(QS) for the six specified species based on the historical catch of 
these species by Amendment 80 vessels. The Amendment 80 Program allows 
and facilitates the formation of Amendment 80 cooperatives among QS 
holders who receive an exclusive harvest privilege. This exclusive 
harvest privilege allows Amendment 80 cooperative participants to 
collaboratively manage their fishing operations and more efficiently 
harvest groundfish allocations while staying under PSC limits.
    As specified in Section 3.7.5.2 of the FMP and at Sec.  679.21, 
NMFS annually establishes a halibut PSC limit of 1,745 mt for the 
Amendment 80 sector. This halibut PSC limit is apportioned between the 
Amendment 80 cooperative(s) and the Amendment 80 limited access fishery 
according to the process specified at Sec.  679.91. Amendment 80 
cooperatives are responsible for coordinating members' fishing 
activities to ensure the halibut PSC limit apportioned to the 
cooperative is not exceeded. Federal regulations at Sec.  
679.91(h)(3)(xvi) prohibit each Amendment 80 cooperative from exceeding 
the halibut PSC limit specified on its annual Amendment 80 Cooperative 
Quota (CQ) permit.
    Of the four BSAI groundfish fishery sectors, the Amendment 80 
sector receives the largest proportion of halibut PSC limits in the 
BSAI (roughly 50 percent). Therefore, the Council recommended, and NMFS 
agrees, that Amendment 123 and this final rule should focus on the 
halibut PSC limit for the Amendment 80 sector. Several reasons drove 
this decision, as discussed below.
    When the Council took final action on Amendment 111 in December 
2015 to reduce the PSC limits for all fishing sectors in the BSAI, the 
Council considered the methods available to the fisheries and the 
practicability of reducing halibut bycatch and mortality at that time. 
The preamble to the proposed rule to implement Amendment 111 noted that 
the Council and NMFS believed that more stringent PSC limit reductions 
than those proposed as part of Amendment 111 were not practicable for 
the groundfish sectors at that time. However, at the same meeting, the 
Council noted that additional halibut bycatch reduction would be needed 
in the future and initiated an analysis of the means to link halibut 
PSC limits to halibut abundance, thereby indicating that additional 
efforts would be required beyond those established by Amendment 111, 
and utilized by the fisheries, to reduce halibut bycatch and mortality. 
From 2015 (when the Council requested the Amendment 80 sector to 
proactively reduce halibut mortality ahead of Amendment 111's 
regulatory PSC limit reductions expected to be implemented in 2016) 
through 2020, the Amendment 80 sector reduced its halibut mortality to 
levels well below the PSC limit of 1,745 mt established under Amendment 
111. Those reductions resulted in halibut mortality levels close to or 
below the PSC limits that are implemented by this rule based on halibut 
abundance estimates derived from current survey indices described below 
(see Section 3.4.1 of the Analysis).

Amendment 123

    The Council recommended Amendment 123 in December 2021 to link the 
halibut PSC limit for the Amendment 80 sector to halibut abundance. In 
recommending Amendment 123, the Council intended to minimize halibut 
PSC to the extent practicable as required by section 303(a)(11) and 
National Standard 9 of the Magnuson-Stevens Act and to continue 
achieving optimum yield in the BSAI groundfish fisheries on a 
continuing basis under National Standard 1. The Council then weighed 
and balanced the Magnuson-Stevens Act's legal requirements and 
considerations, including the ten National Standards. Based on public 
comment, the EIS prepared pursuant to the National Environmental Policy 
Act (NEPA), and analyses under E.O.s and related laws, the Council 
recommended Amendment 123 to NMFS.
    This final rule implements Amendment 123 and requires the Amendment 
80 sector to reduce halibut mortality at times of low halibut 
abundance. Achievement of these objectives will conserve the halibut 
resource by improving bycatch management and could result in additional 
harvest opportunities in the directed commercial, subsistence, and 
recreational halibut fisheries. The implementation of Amendment 123 and 
this final rule changes the annual process to determine the halibut PSC 
limit for the Amendment 80 sector to a PSC limit based on two indices 
of halibut abundance. An index of abundance is a relative measure of 
the abundance of the halibut population (or subpopulation--e.g., size) 
calculated using an accepted scientific data collection method (e.g., 
survey with standardized stations and bait) and calculation method for 
the indices.
    This action specifies halibut PSC limits for the Amendment 80 
sector based on fishery-independent indices of halibut abundance 
derived from scientific survey data. The two survey indices recommended 
by the Council and implemented in this final rule are the International 
Pacific Halibut Commission (IPHC) setline survey index in Area 4ABCDE 
and the NMFS Alaska Fisheries Science Center (AFSC) Eastern Bering Sea 
(EBS) shelf trawl survey index. Throughout this preamble, the IPHC 
setline survey index in Area 4ABCDE is referred to as the IPHC index, 
and the NMFS EBS shelf trawl survey index is referred to as the NMFS 
EBS index. The Council, its Scientific and Statistical Committee (SSC), 
and NMFS reviewed and recommended use of the IPHC index and the NMFS 
EBS index for this action, taking into account and noting limitations, 
assumptions, collection methods, and uncertainties in the Analysis. All 
information on the data and analysis is available to the public through 
meetings of the IPHC, the Council, or online (see ADDRESSES).
    Each year, the IPHC will calculate an index of halibut biomass in 
Area 4ABCDE, which it will provide to NMFS. NMFS will categorize the 
resulting index into one of four

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abundance index ranges: very low, low, medium, or high. Similarly, the 
AFSC will use the most recent results from the EBS shelf trawl survey 
to calculate an index of halibut biomass and NMFS will categorize the 
resulting index into one of two ranges: low or high. The value at the 
intercept of those separate indices in table 58 to part 679 will be the 
Amendment 80 sector's halibut PSC limit for the following calendar 
year. NMFS has requested that the IPHC and AFSC provide the most recent 
annual index of halibut abundance, including a summary of the methods, 
data, and analysis used to calculate the index, to the Regional 
Administrator by December 1 (for the IPHC index), and October 1 (for 
the NMFS EBS index) of each year. NMFS will provide this information to 
the Council and the public at the Council's regularly scheduled 
meetings.
    The Council and NMFS also considered that there has been relative 
stability of the halibut abundance indices in recent years and 
concluded that if there were sampling changes, or that no sampling 
occurred in a given year, the abundance value produced by the IPHC 
model would still be robust and could be used for abundance-based 
management of halibut prohibited species catch limits. As indicated in 
Section 2.7 of the Analysis, the Council clarified that the most recent 
survey data available should be used to set annual PSC limits in the 
absence of one or more years of survey data.
NMFS EBS Index
    Annually, NMFS uses data from the EBS shelf bottom trawl survey 
(EBS survey) to estimate halibut biomass (mt) in the EBS (NMFS EBS 
index). The NMFS EBS index is calculated from halibut catch at the EBS 
survey stations and accounts for the total survey area. The EBS survey 
is conducted during the summer (May through August), and the processed 
data are made available during the fall, at which time the NMFS EBS 
index can be calculated. Results of the EBS survey provide up-to-date 
estimates of biomass, abundance, distribution, and population structure 
of groundfish populations in support of stock assessment and ecosystem 
forecast models that form the basis for groundfish and crab harvest 
advice. The EBS survey has been conducted annually since 1982 (with one 
exception in 2020) and has included the current number of stations 
(376) since 1987. Results from this survey are used to calculate a 
relative abundance (catch per unit effort) and size and/or age 
composition for halibut and many groundfish and crab species. Data 
collected on the survey are also used to improve understanding of life 
history of the fish and invertebrate species, as well as the ecological 
and physical factors affecting their distribution and abundance. In 
absence of a survey, NMFS will use the halibut abundance index 
calculated from the most recent EBS survey.
IPHC Index
    The IPHC has collected and analyzed data through a robust 
scientific process (i.e., performed stock assessments) to determine the 
abundance of halibut coastwide from California to the Bering Sea. Each 
proposed survey undergoes scientific review and public inspection 
through a variety of channels.
    The IPHC analyzes and combines data from the IPHC's Fishery-
Independent Setline Survey (FISS), NMFS Eastern and Northern Bering Sea 
trawl survey, and Alaska Department of Fish and Game (ADF&G) Norton 
Sound trawl survey using a space-time model to create relative indices 
of halibut abundance and biomass in different units (e.g., numbers or 
weight) for use in the annual halibut stock assessment. The EBS shelf 
survey has different size-selectivity than setline gear. To address 
this, the EBS shelf trawl survey is calibrated to the setline survey 
selectivity before it is incorporated into the calculation of the 
setline survey indices. Therefore, the setline survey does not index 
smaller halibut (mostly under 26 inches (66 cm) in fish length, called 
U26). Three important indices created annually include (1) a relative 
index of halibut abundance expressed as a number of fish that is used 
in the halibut stock assessment; (2) a relative index of halibut 
biomass for all sizes of fish expressed as weight per unit effort 
(WPUE) in in each IPHC Regulatory Area, including areas 4A, 4B, and 
4CDE, which is also referred to as the IPHC index that is used in table 
58 to part 679 for the purpose of annually establishing Amendment 80 
halibut PSC limits; and (3) a relative index of halibut biomass in each 
IPHC Regulatory Area for fish over 32 inches (O32) in length overall 
that is used by the IPHC in the annual process to establish halibut 
mortality limits in each IPHC Regulatory Area.
    The IPHC uses a scientific approach to survey data analysis in the 
space-time model that has been peer reviewed by the IPHC's Scientific 
Review Board (SRB). Similar space-time models are used to create the 
indices of abundance from NMFS Bering Sea trawl survey for the Pacific 
cod and Walleye pollock stock assessments. The IPHC index was selected 
by the Council as one dimension of table 58 to part 679.
    The space-time modeling approach incorporates information from 
nearby observations in space and time to improve the prediction of WPUE 
at a particular sampling station. Such an approach allows the IPHC to 
annually generate an index of halibut abundance and estimate biomass 
(with associated variance estimates) even when FISS sampling coverage 
is not complete in all geographic areas. This means that for areas 
which are not sampled directly by the FISS in a given year, a 
statistically valid index of abundance is available, although the 
quantified uncertainty around the index would likely increase.
    When assessing the robustness of the IPHC index during the 
development of Amendment 123, NMFS, the Council, and its SSC examined 
what would happen if there were changes in the surveys, including in a 
situation if no survey was to occur. They noted that the optimized use 
of the information from the sampled data reduces uncertainty and allows 
for the estimation of a consistent time-series over all years, even for 
areas that were not sampled in a particular year, with appropriate 
estimated uncertainty. Those estimates are the best scientific 
information available.
    The survey coverage has varied over time and has been adjusted for 
both scientific reasons (e.g., to enhance accuracy and precision) as 
well as to adjust for cost and logistical reasons. Annually, the FISS 
survey design represents a subset of the full survey design of 1890 
stations coastwide. Station allocation among IPHC Areas, station 
density within Areas, and sampling effort (number of skates) per 
station in a given year are adjusted to meet the stated objectives to: 
(1) sample halibut for stock assessment and stock distribution 
estimation, (2) achieve long-term revenue neutrality, and (3) minimize 
removals, and assist others where feasible on a cost-recovery basis. 
The IPHC relies on its SRB to provide independent scientific peer 
review of the IPHC science process, including the annual FISS design 
development and refinement. The annual FISS design is routinely 
reviewed by the Commission and the public during the IPHC annual 
process.

Regulatory Changes Implemented by This Action

    This final rule establishes a process to set the annual halibut PSC 
limit for the Amendment 80 sector. This rule specifies the following:
     The halibut PSC limit for the Amendment 80 sector is 
determined annually;

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     Halibut biomass estimates derived from the most recent 
IPHC index and the NMFS EBS index are applied to a specified set of 
ranges for each index to establish the halibut PSC limit for the 
Amendment 80 sector for the following year;
     The halibut PSC limits range from 1,745 mt when abundance 
is characterized as ``high'' for the IPHC index, down to 1,134 mt (35 
percent reduction) when abundance is characterized as ``very low'' for 
the IPHC index; and
     Each year the Amendment 80 sector halibut PSC limit is 
included in the annual harvest specifications for the BSAI.
    This rule revises Sec.  679.21(b)(1), which establishes halibut PSC 
limits for the Amendment 80 sector. This rule adds Sec.  
679.21(b)(1)(i)(A) through (C) to establish the process for determining 
the annual halibut PSC limits for the Amendment 80 sector, including 
Amendment 80 cooperatives and the Amendment 80 limited access fishery. 
This rule specifies that halibut indices derived from the most recent 
IPHC index and the NMFS EBS index be applied to a specified table of 
index ranges (table 58 to part 679). The value at the intercept of 
those indices within the table will be the halibut PSC limit for the 
Amendment 80 sector for the following year.
    This rule also revises Sec.  679.91, which establishes Amendment 80 
Program annual harvester privileges and the process for assigning 
halibut PSC limits to the Amendment 80 sector, cooperatives, and 
limited access fishery. This rule revises Sec.  679.91(d)(1), 
(d)(2)(i), and (d)(3) to clarify that the amount of halibut PSC limit 
for the Amendment 80 sector for each calendar year is specified and 
determined according to the procedure in Sec.  679.21(b)(1)(i) by 
replacing the references to table 35 to part 679 in those paragraphs to 
this part that stipulates the annual fixed amount of 1,745 mt for the 
Amendment 80 sector as a whole.
    This rule revises table 35 to part 679 (Apportionment of Crab PSC 
and Halibut PSC between the Amendment 80 and BSAI Trawl Limited Access 
Sectors) to indicate that the Amendment 80 sector halibut PSC limit 
will be determined annually, rather than set at a fixed amount.
    This rule adds table 58 to part 679 (Amendment 80 Sector Annual 
BSAI Pacific Halibut PSC Limits) to establish the IPHC index and the 
NMFS EBS index ranges in a table with the corresponding PSC limit at 
the intercepts of each index range.

Comments and Responses

    NMFS received 69 comment letters on the Amendment 123 Notice of 
Availability and proposed rule. NMFS responds to 91 substantive 
comments below.
    NMFS received comment letters from 12 individuals, 3 fishermen, 1 
guide service, 2 CDQ groups, 36 industry support businesses, 4 
Amendment 80 companies, 7 industry associations, 2 non-governmental 
organizations (NGO), and 1 anonymous submission. Of the seven industry 
associations, one represents the Amendment 80 sector, one represents 
Bering Sea crabbers, three represent halibut and sablefish fishermen, 
one represents fishermen in the Homer, Alaska area, and one represents 
Prince William Sound and Central Gulf of Alaska fishermen. Of the 69 
comment letters, 43 were opposed to the action and 26 were in support. 
Commenters who opposed the action were from the Amendment 80 sector, 
their industry association, members of the business community who 
provide support services to the Amendment 80 sector, and one CDQ group. 
Comment letters that voiced support for the action came from 
individuals, fishermen in halibut fisheries, an industry association 
representing crabbers, those who represent a wide range of fishermen in 
the Cordova area, a charter company, two NGOs, and the anonymous 
submission.
    In responding to these comments, when NMFS refers to Amendment 123, 
unless otherwise noted, NMFS is referring to Amendment 123 and this 
final rule implementing Amendment 123. There were no public comments 
asserting that the proposed rule is not consistent with Amendment 123. 
Numerous comments address information included in the draft Analysis 
prepared for this action. Throughout the responses below, when NMFS 
refers to the ``Analysis,'' NMFS is referencing the EIS including the 
SIA prepared for this action. NMFS refers to the Draft Environmental 
Impact Statement as the ``draft Analysis.''

Halibut Abundance Indices

    Comment 1: The current fixed halibut PSC limit fails to respond to 
varying abundances of halibut. The Council recommended Amendment 123 to 
the Secretary of Commerce as a responsive process to establish annual 
halibut PSC limits for the Amendment 80 sector based on halibut 
abundance. A PSC limit that responds to halibut abundance will allow 
halibut PSC limits to rise and fall based on abundance indices 
calculated with inputs from the IPHC fishery-independent setline survey 
and the annual NMFS trawl surveys in the BSAI area. We support NMFS 
implementing this action to reduce waste of the important halibut and 
bring the years-long process of crafting an equitable and 
scientifically supported abundance-based management plan to conclusion.
    Response: NMFS acknowledges this comment. The need for an 
abundance-based management system is laid out in the preamble to the 
proposed rule.
    Comment 2: In recommending the abundance indices included in 
Amendment 123, the Council contradicted recommendations from its own 
scientific peer-review body (i.e., SSC) that specifically cautioned 
against the use of the recommended metrics in April 2021.
    Response: In April 2021, the SSC expressed concern with the 
potential impact of year-to-year changes to survey or abundance 
estimation methods; however, the SSC did not call into question whether 
the indices were the best scientific information available. Instead, 
the SSC provided important insight into the various factors affecting, 
and affected by, use of the indices as proposed. The Council and NMFS 
considered the SSC's recommendation of standardizing the indices of 
abundance as relative values rather than the absolute values included 
in this final rule as described in Section 2.8 of the Analysis. As with 
every scientific process, survey and abundance estimation methods are 
continuously reviewed and improved. Occasionally changes to survey and 
abundance estimation methods may affect the scale of an absolute value, 
whereas relative calculations (trends) are scaled such that changes are 
relative to the period being evaluated (e.g., percent change).
    The Council and NMFS acknowledged that there are tradeoffs with 
using absolute values versus using standardized relative values. We 
chose to use absolute values to improve transparency and public 
understanding because the alternative (standardized relative values) 
would make it more difficult for stakeholders to read reported survey 
indices in a given year and map those onto a table to anticipate the 
resulting Amendment 80 PSC limit. The absolute values for the abundance 
indices are dependent on the assumptions of the survey design and 
analysis, whereas a standardized relative index could show less year-
to-year variability. The Council and NMFS recognized that, with 
absolute values, historical index values could change in the future 
because of potential improvements to index calculation

[[Page 82744]]

methods. For example, if there are improvements to understanding 
specific parameters used in calculating the index and those parameter 
values change (e.g., increased precision in quantifying area sampled 
results in an overall increase in area sampled, or improvements to the 
length to weight ratio) could change the calculation method and 
historical index values. But by using easily understood absolute 
values, this approach creates greater transparency to the public and 
meets the objectives for the program set by the Council, recognizing 
that survey values could change in the future. This is similar to how 
other PSC limits are set in the BSAI.
    Comment 3: NMFS ignored the SSC advice regarding the use of 
absolute or relative indices of halibut abundance. The SSC stated that 
any change to the survey methods, area to which the survey applies, or 
methods and models used to convert the survey data into abundance 
values could result in changes in the Amendment 80 bycatch limits that 
result not from actual changes in halibut abundance but from changes in 
the survey design and methods used to calculate halibut abundance.
    Response: Model methods and surveys are expected to change over 
time and rely on scientifically accepted and statistically robust 
methods that consider changes in bias and precision in estimates to 
provide the best scientific information available for estimating 
halibut abundance indices. The Council and NMFS considered the SSC 
advice and selected the absolute index values because the combination 
of those two values adequately met the purpose and need for the action, 
is based on sound scientific survey methodology, and is transparent to 
regulated entities and the public. Year-to-year changes in indices of 
abundance due to methodology changes would have to be substantial 
enough to cross the breakpoints specified in table 58 to part 679 to 
influence the PSC limit set for the Amendment 80 sector each year, and 
this is a possibility in the future as the indices adjust due to 
changes in halibut abundance. This method accomplishes the purpose and 
need for the action by tying PSC limits to halibut abundance using the 
best scientific information available provided by the survey indices. 
Should issues arise in the future, the Council and NMFS will review the 
PSC limits established by this action during the periodic Amendment 80 
program review or at any time that the Council wishes to initiate an 
action to consider an alternative approach as part of its normal 
process.
    Comment 4: NMFS's determination of the breakpoints in the lookup 
table to establish the halibut PSC limits that apply to the Amendment 
80 sector is arbitrary, unexplained, and lacks a rational basis. The 
Analysis states that the breakpoints employed in these lookup tables 
were determined by visual inspection of relative trends in the survey 
indices historically.
    Response: The breakpoints identifying the different abundance 
states for the two indices of halibut abundance included in table 58 to 
part 679 reflect the cumulative input and decisions made throughout the 
8 years of development of this action. The purpose of this action is to 
link the halibut PSC limit for the Amendment 80 sector to halibut 
abundance. As explained in the Analysis and the proposed rule, the 
breakpoints in the lookup table span recent trends in indices of 
halibut abundances, and the PSC limits in table 58 to part 679 reflect 
the Council's decision to establish a PSC limit from 0 to 35 percent 
below the existing limit, depending upon abundance.
    The Council recommended, and NMFS agrees, that the chosen 
breakpoints reasonably represent the desired abundance states (high, 
medium, low, very low) in light of observed past survey trends. Based 
on IPHC survey data, the period of 1997 through 2002 is categorized as 
high abundance; 2003 through 2016 as medium abundance; and 2017 to 
present as low abundance. The very low abundance state captures the 
potential situation where abundance indices drop below historical 
levels.
    The breakpoints and accompanying PSC limits established by 
Amendment 123 were selected to balance the goals of linking halibut PSC 
to abundance, reducing bycatch, and avoiding burdens that would make 
the rule impracticable. Any impacts that might arise from setting the 
abundance breakpoints at the selected levels were also addressed in 
consideration of the PSC limits set under the different alternatives. A 
greater impact from setting a breakpoint at a higher or lower level 
would affect the practicability of a given PSC limit. For example, if 
the breakpoints were set even lower at the ``very low'' state, such 
that this state would only occur when halibut abundances were 
catastrophically low, a much higher reduction to the PSC limit might be 
appropriate.
    The Council recommended, and NMFS agrees, that the breakpoints 
included in this action are appropriate to accomplish the action's 
objectives. These conclusions are the result of the extensive analysis, 
public input, and consideration by the Council and NMFS that occurred 
during the development of this action.
    Comment 5: NMFS's use of the IPHC index in this action would 
impermissibly delegate to the IPHC the critical responsibilities of (1) 
conducting a survey for determining the abundance of halibut and (2) 
establishing the IPHC index for the abundance of that halibut, which is 
then used directly, by regulation, to determine the annual halibut PSC 
limit for the Amendment 80 sector. NMFS has directly linked its halibut 
PSC management for the Amendment 80 sector to actions and decisions of 
the IPHC that cannot be reviewed or otherwise second-guessed by NMFS. 
NMFS therefore proposes to delegate to the IPHC its authority to 
undertake the discretionary non-ministerial function of assessing, 
analyzing, and determining the abundance of halibut in a manner that 
requires the exercise of judgment.
    Response: The Council designed, and this final rule implements, an 
annual process for NMFS to determine Amendment 80 halibut PSC limits 
using halibut abundance indices provided by the IPHC and the AFSC. Each 
year, NMFS will rely on the IPHC index and the NMFS EBS index as the 
best available scientific information on halibut abundance.
    In this action, NMFS relies on the IPHC to produce the IPHC index 
because the IPHC collects and analyzes scientific data necessary to 
estimate halibut abundance throughout its range. That is the IPHC's 
responsibility under Article III of the Convention for the Preservation 
of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea 
(Convention). NMFS participates in the IPHC annual process; the 
Regional Administrator of NMFS's Alaska Region serves as one of three 
U.S. Commissioners to the IPHC and is a voting member of the North 
Pacific Fishery Management Council. Both indices used in this action 
were reviewed by the Council's SSC and recommended by the Council. By 
relying on the IPHC to provide this type of scientific information, 
NMFS is not delegating management authority for any aspect of the 
groundfish fisheries to the IPHC. NMFS manages, and will continue to 
manage, the BSAI groundfish fisheries. In furtherance of that effort, 
NMFS will use information analyzed by the IPHC. Specifically, NMFS will 
use the IPHC index for halibut abundance, in conjunction with the NMFS 
EBS index, to apply the appropriate PSC limit. The Council and NMFS 
determined the halibut PSC limits established by this action are

[[Page 82745]]

necessary to achieve the program goals. NMFS will publish the PSC limit 
in the annual harvest specifications. That is clearly a management 
action undertaken by NMFS, and not the IPHC.
    The IPHC independently conducts halibut surveys, collects data, and 
carefully models halibut abundance. The IPHC would continue these 
activities to estimate halibut abundance, whether or not NMFS 
implements Amendment 123. This action relies on two indices of halibut 
abundance derived from fishery-independent surveys which NMFS will use 
to determine the annual halibut PSC limit for the Amendment 80 sector. 
The IPHC index and the NMFS EBS index are described above in the 
preamble to this final rule. The two abundance indices are in table 58 
to part 679, which will be used by NMFS to determine the Amendment 80 
sector's halibut PSC limit each year. This process incorporates the 
best available scientific information available from both IPHC and AFSC 
each year.
    The Magnuson-Stevens Act's mandate is to base decision-making on 
the best scientific information available, not on scientific 
information generated only by NMFS. NMFS commonly relies on and 
incorporates data, derived products, and modeling output from other 
entities. For instance, NMFS uses the annual Chinook salmon abundance 
estimate from the State of Alaska, which uses an established 3-System 
Index of Chinook salmon abundance in western Alaska, to determine the 
Chinook salmon PSC limit and performance standard applicable to vessels 
participating in the Bering Sea pollock fishery.
    Comment 6: The IPHC's annual abundance determinations will do the 
following: (1) bypass all U.S. laws that would otherwise be applicable 
if NMFS were making these determinations and any form of oversight by 
NMFS (or any other U.S. Government agency); and (2) not be subject to 
any of the standards for scientific integrity, such as peer review or a 
process for data review that would otherwise apply to the actions of 
U.S. agencies.
    Response: NMFS disagrees. The IPHC promulgates regulations 
governing the halibut fishery under the Convention. The IPHC's 
regulations applicable to the United States are subject to approval by 
the Secretary of State with the concurrence of the Secretary of 
Commerce. The North Pacific Halibut Act (Halibut Act), 16 U.S.C. 
773c(a)-(b), provides the Secretary of Commerce with general 
responsibility for carrying out the Convention and the Halibut Act, 
including the authority to adopt regulations necessary to carry out the 
purposes and objectives of the Convention. The Halibut Act, 16 U.S.C. 
773c(c), also provides the Council with authority to develop 
regulations, including limited access regulations, that are in addition 
to, and not in conflict with, IPHC regulations. Regulations the Council 
recommends may be implemented by NMFS only after approval by the 
Secretary of Commerce and in compliance with all applicable laws.
    The IPHC's scientists produce halibut abundance indices through a 
robust process that involves the public and NMFS. IPHC scientists are 
highly-trained, independent specialists. Their work is regularly 
reviewed by the IPHC Scientific Review Board, and an external 
scientific review is periodically conducted. All findings of peer 
reviews are openly discussed in public meetings and published online 
(see ADDRESSES). Their models and abundance indices have been subject 
to peer review and will continue to be subject to peer review that is 
similar or identical to the peer review of data and models produced by 
NMFS staff or from other Federal agencies.
    Based on advice from the SSC, the Council and NMFS concluded that 
the IPHC's annual setline indices are the best scientific information 
available to estimate the abundance of Pacific halibut. As with any 
Federal action, the best scientific information available might not 
stem from the work of a single agency or organization. Through the 
processes that have led to the development of Amendment 123 and this 
action, the public has had an opportunity to examine and assess the 
scientific underpinnings of the Federal action, and NMFS has fully 
considered associated public comments.
    Comment 7: It is arbitrary and capricious to base halibut PSC 
limits on an abundance index that does not reflect or correlate with 
halibut encounter rates in the Amendment 80 sector. The Amendment 80 
sector's halibut encounter rates are not significantly correlated with 
either of the halibut abundance indices used in the proposed action to 
set annual halibut PSC limits. The halibut encounter rates are highly 
variable year-to-year. The likelihood of the Amendment 80 sector 
foregoing considerable groundfish catch based on the PSC limits 
established in the proposed action is also likely to be highly variable 
year-to-year. In October 2019, the SSC emphasized that a result of the 
analysis is that the groundfish fleet's ability to avoid halibut 
bycatch is poorly related to indices of halibut abundance.
    Response: The purpose of this action is to link the halibut PSC 
limit for the Amendment 80 sector to halibut abundance, which will 
ensure that the Amendment 80 sector's use of halibut PSC does not 
become a larger proportion of the overall halibut PSC in the BSAI in 
years of lower halibut abundance. The Council and NMFS considered a 
wide range of different abundance indices to use in the process for 
linking halibut abundance to halibut PSC limits during the development 
of this action. The SSC determined that the most scientifically 
appropriate indices for linking PSC limits to abundance are the NMFS 
EBS index and the IPHC index.
    The Council and NMFS considered this issue extensively: Section 
3.4.4 of the Analysis discusses a comparison of the Amendment 80 
halibut encounter rates and mortality with survey trends (see 
ADDRESSES). Early in development of Amendment 123 (in October 2017), 
the Council reviewed a discussion paper that showed a high correlation 
between the NMFS EBS index of halibut biomass and the non-pelagic trawl 
(NPT) sector catch per unit effort (CPUE). However, over time, new 
information became available that changed our understanding of the 
correlation between the NMFS EBS index and the Amendment 80 encounter 
rates. As noted in Section 3.4.4 of the Analysis, there are many 
reasons why it would not be expected for Amendment 80 halibut PSC 
encounter rates to be consistently and positively correlated with 
fishery-independent indices of halibut biomass, including different 
temporal and spatial coverage, degree of halibut intermingling with 
target species, variable groundfish aggregation behavior across years, 
gear selectivity, and fishery behavior such as targeting of different 
species by the various fleets and companies within the sector.
    The Analysis also recognizes that it is possible that higher 
encounter rates are at least partially attributable to environmental 
conditions (e.g., comingling of species in an ocean environment with 
less temperature variation that could help separate species and guide 
time and area targeting of individual species). Section 5.3.2.3.2 of 
the Analysis discusses potential impacts of changing environmental 
conditions on the practicability of the Amendment 80 sector to avoid 
bycatch, particularly as it relates to warmer Bering Sea water 
temperatures and spatial patterns of target fisheries.
    Regardless of these uncertainties, the purpose of this action is to 
link the halibut PSC limit for the Amendment 80

[[Page 82746]]

sector to halibut abundance. The Council and NMFS believe that the use 
of the NMFS EBS and IPHC indices present the best means to accomplish 
this objective, taking into account the information described above. 
The Analysis thoroughly evaluates this dynamic, and this information 
was considered in the Council's and NMFS's decision-making, including 
the information raised by the SSC in October 2019 that the groundfish 
fleet's ability to avoid halibut is poorly related to indices of 
abundance. In short, the Council and NMFS considered the information in 
the decision-making process.

Magnuson-Stevens Act Compliance

    Comment 8: The proposed action violates section 303(a) of the 
Magnuson-Stevens Act that requires an amendment be necessary and 
appropriate for the conservation and management of a fishery because 
(1) it is arbitrary to base halibut PSC limits for the Amendment 80 
sector on a metric of abundance that is negatively correlated to 
halibut encounter rates in the fishery, and (2) the proposed action 
will not constrain halibut PSC in other fisheries.
    Response: NMFS disagrees. The Council recommended and this final 
rule implements this action to link halibut PSC limits to levels of 
halibut abundance. The rationale for why it is appropriate to base 
halibut PSC limits for the Amendment 80 sector on the indices of 
halibut abundance included in this action is thoroughly discussed in 
the response to Comment 26. The Council and NMFS chose to focus this 
action on the Amendment 80 sector due to the high percentage of PSC 
assigned to this sector, as explained in Comment 13, and because other 
actions were underway or planned to address halibut bycatch in other 
fisheries, as explained in response to Comment 16.
    Comment 9: NMFS has not demonstrated that this action is necessary 
or appropriate for the conservation and management of the Amendment 80 
sector, and this Magnuson-Stevens Act requirement is not reflected in 
the purpose and need statement for this action.
    Response: In section 3(5) of the Magnuson-Stevens Act, Congress 
defined ``conservation and management'' broadly. Minimizing halibut 
bycatch by a groundfish fishery to the extent practicable satisfies 
that definition, and is required and authorized by section 303 (see 
sections 303(a)(11) and (b)(3)). This action is a modification of an 
existing conservation and management measure necessary to limit the 
amount of halibut mortality caused by the Amendment 80 sector 
fisheries. The principal purpose of this action is to link the halibut 
PSC limit for the Amendment 80 sector to halibut abundance to reduce 
halibut bycatch to the extent practicable under National Standard 9 and 
improve conservation of the halibut fishery by reducing halibut PSC 
limits at times of low halibut abundance.
    The Amendment 80 sector is managed under the BSAI FMP. The 
Magnuson-Stevens Act requires NMFS to manage the BSAI groundfish 
fisheries to minimize all bycatch to the extent practicable. Bycatch 
minimization is a central policy and mandate of the Magnuson-Stevens 
Act as specified in section 301(a)(9), and section 303(a)(11)(A) and 
(b)(14). Through National Standard 9, Congress directed that all FMPs 
and regulations developed pursuant to such FMPs must be consistent with 
the requirement to minimize bycatch to the extent practicable.
    Comment 10: NMFS failed to prepare a legally sufficient Fishery 
Impact Statement.
    Response: NMFS disagrees. NMFS prepared a Fishery Impact Statement 
that addresses all required components as specified in Magnuson-Stevens 
Act section 303(a)(9) and is included in Section 7.3 of Analysis (see 
ADDRESSES).
    Comment 11: NMFS and the Council failed to explain how biological 
constraints and human needs were balanced, or priorities were 
established, under the Magnuson-Stevens Act implementing regulations.
    Response: NMFS disagrees. NMFS and the Council explained how 
biological constraints and human needs are balanced and how priorities 
were established throughout the preamble to the proposed rule, the 
Analysis, and ROD (see ADDRESSES). See Section 2.4 and Appendix 1 of 
the Analysis and the ROD for details on how NMFS and the Council 
explained the biological constraints and human needs were balanced and 
how priorities were established and evaluated during the decision-
making process.
    Comment 12: The proposed action cannot and will not prevent halibut 
PSC from becoming a larger proportion of total halibut removals in the 
BSAI because it does not constrain the PSC limits in any other BSAI 
groundfish fishery.
    Response: NMFS agrees that this action does not modify PSC limits 
for other non-Amendment 80 BSAI groundfish fisheries and does not limit 
halibut catch or bycatch in the directed halibut fishery or other 
groundfish fisheries that contribute to the total halibut removals in 
the BSAI. Other NMFS actions have done so or may do so in the future. 
This action is expected to ensure that the Amendment 80 sector's use of 
halibut PSC does not become a larger proportion of the overall halibut 
mortality in the BSAI in years of lower levels of halibut abundance. 
Amendment 80 PSC limits established in future years will be influenced 
by indices of halibut abundance according to the levels specified in 
table 58 to part 679. Therein, this action will reduce Amendment 80 
halibut PSC in years of low halibut abundance, which is an improvement 
over the static PSC limit of 1,745 mt. This action focuses on the 
Amendment 80 fleet because of that sector's relatively large 
contribution to total halibut PSC in the BSAI management area.
    The halibut PSC limits for all fisheries are specified according to 
regulations at Sec.  679.21(b). Over the time period analyzed, the 
Amendment 80 sector accounted for 49.6 percent of the total PSC limits 
in the BSAI. The next closest fleet was the BSAI Trawl Limited Access 
Sector with 21.2 percent of the total PSC limit. See Table 1-1 of the 
Analysis. The Council and NMFS chose to focus this action on the 
Amendment 80 sector, because (1) at lower halibut abundance levels, the 
Amendment 80 sector's static PSC limit of 1,745 mt becomes a far larger 
proportion of the overall halibut removals in the BSAI than any other 
sector's PSC limit, as explained in response to Comment 12 and (2) 
other actions were underway or planned to address halibut bycatch in 
other fisheries or, the sectors not included in those actions receive a 
relatively small proportion of the halibut PSC limit. The current 
status of those actions is explained in response to Comment 16 below. 
The existing PSC limits for other fishery sectors will not increase; 
however, any sector can harvest halibut up to that sector's PSC limit 
in any given year and actual halibut bycatch can vary from year to year 
under the respective PSC limits. Accordingly, this action is expected 
to reduce halibut PSC at lower levels of halibut abundance for the 
Amendment 80 sector.
    Comment 13: This action is not consistent with Magnuson-Stevens Act 
implementing regulations at Sec.  600.305(b)(3) because the action is 
not expected to positively impact halibut stock conservation or result 
in an increased allocation to the directed halibut fleet in Area 4. The 
only stated objective of this action is to impose constraints and 
associated costs on the Amendment 80 sector by establishing

[[Page 82747]]

halibut PSC limits that are expected to constrain the fishery at times 
of low halibut abundance.
    Response: NMFS disagrees. The regulatory guidelines for the 
Magnuson-Stevens Act's National Standards provide that each FMP should 
identify what the FMP is intended to accomplish. Among other things, 
those objectives should address the problems of a particular fishery 
and should be clearly stated, practicably attainable, and framed in 
understandable terms. The National Standard guidelines refer, at Sec.  
600.305(b)(3), to objectives of the FMP, which provide the context 
within which the Secretary of Commerce will judge the consistency of an 
FMP's conservation and management measures with the National Standards. 
The BSAI FMP objectives are found at Section 2.2.1 of the FMP and are 
not changed by this action.
    Further, under the Magnuson-Stevens Act National Standard 
guidelines, fisheries management objectives should, among other things, 
be practicably attainable. This action is consistent with the BSAI 
FMP's objectives. Comments and responses below relating to National 
Standard 9 further address issues raised with the practicability of the 
PSC limits established by this action.
    This action has clear, understandable, and attainable objectives. 
The Analysis and the proposed rule clearly state that the purpose of 
this action is to link the halibut PSC limit for the Amendment 80 
sector to halibut abundance. This will change the previously static 
halibut PSC limit to one that may fluctuate annually in response to 
indices of halibut abundance. This approach will minimize bycatch to 
the extent practicable and prevent Amendment 80 PSC from becoming a 
significantly larger proportion of total halibut removals in the BSAI 
when halibut abundance decreases to specified thresholds. The 
achievement of the objective is measurable because the proposed 
Amendment 80 sector's annual PSC limits will be linked to a range of 
the halibut abundance levels depicted clearly in table 58 to part 679.
    The BSAI FMP promotes conservation of the halibut resource by 
establishing halibut PSC limits in the groundfish fisheries. Reduction 
of halibut bycatch is a conservation benefit, as detailed on page 265 
of the Analysis. As explained in response to Comment 53, NMFS must 
consider a range of economic and non-economic impacts including impacts 
to the halibut stock conservation and potential benefits to users of 
the halibut resource, including the directed halibut fleet in Area 4. 
Though NMFS must consider these factors, it is not a requirement that a 
bycatch reduction measure result in measurable positive impacts to the 
overall bycatch stock or to the catch allocations of the directed 
halibut fishery. In Section 5 of the Analysis, NMFS extensively 
evaluated the potential impacts on the halibut stock and directed 
halibut fishery. In light of the numerous variables that affect halibut 
biomass, this action may contribute to improvements to the halibut 
biomass, but that is not an expected result. It is expected that the 
conservation benefits achieved by this measure are more likely to 
result in greater use by the directed fishery, rather than improvement 
of the overall stock, but the result may not be binary, and whether 
this expected result occurs does not affect the analysis for this 
action.
    Imposing costs is not an objective of this action. NMFS would 
prefer that bycatch minimization occur with little cost. However, 
Congress recognized that imposing costs may be necessary and directed 
NMFS to minimize bycatch to the extent practicable. Practicability 
determinations are made on a case-by-case basis for each fishery given 
the circumstances at the time. Additional comments and responses 
regarding the economic impacts of this action are included under the 
``Economic Impacts'' heading below.
    Comment 14: To the extent the proposed action has an objective of 
either allocating halibut to the directed fishery or conserving halibut 
by reducing bycatch, the objective is not practically attainable. It is 
not reasonably certain that (1) overall halibut bycatch will be reduced 
as a result of this action, (2) the IPHC will increase catch limits in 
Area (4, or 3) any increase in catch limits will result in an increased 
commercial catch in the directed halibut fishery. To the extent 
conservation is a goal of the proposed action, NMFS has concluded that 
the proposed action has little or no conservation benefit to the 
halibut stock.
    Response: See the response to Comment 34 for a summary of the 
conservation benefits of this action. See the response to Comment 12 
for a discussion of overall halibut bycatch. Allocation or re-
allocation of halibut is not an objective of this action, as described 
in the responses to comments under the National Standard 4 heading. 
Management of the directed halibut fishery and expected impacts of this 
action are addressed in the responses to comments under the Directed 
Halibut Fishery heading.
    Comment 15: NMFS premises the proposed action on the supposed need 
to achieve equity in the specific circumstance when ``the IPHC setline 
survey results fall into the very low abundance state.'' But this is 
arbitrary because the proposed action addresses all abundance states 
and substantially reduces the Amendment 80 sector's halibut PSC limit 
under the status quo. The halibut stock has never been in a ``very 
low'' abundance state, which means the proposed action is chasing a 
phantom and doing so in an overly broad way by reducing the halibut PSC 
limit in all abundance states.
    Response: The proposed action is based on Congress's direction to 
minimize bycatch to the extent practicable while ensuring that that the 
action is consistent with all ten National Standards and other 
requirements of the Magnuson-Stevens Act. The result from linking 
halibut PSC limits to halibut abundance is a more equitable one than 
the current static PSC limit because, when abundance drops, a static 
level of halibut PSC represents a greater proportion of all halibut 
fishing mortality.
    The Analysis considered various halibut abundance levels, not just 
those which have already been known to occur, in order to link 
Amendment 80 PSC limits to those various abundance levels. If the 
halibut stock never enters a very low level of abundance, the 
correlating PSC limit would not be imposed. However, including that 
limit in the event such a level occurs is reasonable. Including the 
very low abundance state ensures the Amendment 80 sector will minimize 
its halibut bycatch at all levels of halibut abundance and, if those 
abundance levels should drop to the very low state, the PSC limits 
become lower as well. At the Very Low/Low and Very Low/High index 
states, the proposed action would reduce the Amendment 80 halibut PSC 
limit by 35 percent from the current limit. Should the IPHC index fall 
into the very low abundance state, the Council and NMFS concluded that 
this halibut PSC limit reduction would be important to promote 
conservation and equitable use of the halibut stock and consistent with 
the abundance-based process for establishing directed halibut fishery 
catch limits. These measures are not overly broad; they apply in very 
specific conditions that will be known to the Amendment 80 sector 
before the fishing season begins. When abundance is categorized as 
high, the PSC limit will not be changed from current limits. See 
Comment 4 for discussion on the development of the breakpoints. In the 
period considered in the Analysis, the

[[Page 82748]]

annual Amendment 80 sector PSC limit would have been set at the maximum 
PSC limit of 1,745 mt in the years from 1998 through 2002 and 2008, had 
this action been in place. In years from 2003 through 2007 and 2009 
through 2021, the Amendment 80 sector PSC limit would have been set at 
levels ranging from 1,309 mt to 1,571 mt representing a 10 percent to 
25 percent reduction from the maximum PSC limit established by this 
action.
    Comment 16: Unlike the approach taken with BSAI FMP Amendment 111, 
the proposed action is a fragmentary and not a comprehensive approach 
to halibut and groundfish management. Halibut is managed on a coastwide 
basis, and halibut bycatch occurs in multiple fisheries and sectors 
across that wide range. Yet, the proposed action would myopically 
regulate the halibut bycatch of just one fishery sector in one area, 
and any benefit that might result from the proposed action is itself 
uncertain because any reallocation of halibut to the directed fishery 
hinges entirely on future unknown actions of the IPHC. This is a 
fragmentary approach to fisheries management and in violation of Sec.  
600.305(b)(3).
    Response: The BSAI FMP addresses halibut bycatch comprehensively, 
setting PSC limits for a variety of and sectors, as required by the 
Magnuson-Stevens Act and National Standard guidelines. This action 
adjusts the annual process to establish the Amendment 80 sector's PSC 
limit for halibut. The Council and NMFS recognize that there are 
ongoing and future plans to take or consider taking similar actions for 
other sectors, and that does not diminish or fragment the FMP's overall 
approach to bycatch management.
    The Council established a comprehensive approach to halibut bycatch 
management, and it is routine for the Council to evaluate the scope of 
proposed adjustments based upon the problem statement and information 
available at the time. The scope of this action, which is applicable 
only to the Amendment 80 sector, was selected in February 2020 after 
considering the issues identified in the problem statement, the amount 
of halibut bycatch in each fishery sector, input at numerous public 
meetings, and other proposed actions that would reduce halibut PSC in 
other fishery sectors.
    Other recent actions to reduce halibut bycatch in the BSAI include 
BSAI FMP Amendment 116 (83 FR 49994, October 4, 2018) and BSAI FMP 
Amendment 122 (88 FR 53704, August 8, 2023), which reduced halibut 
bycatch in the non-Amendment 80 trawl fishery (commonly known as the 
trawl limited-access, or ``TLAS'', fishery) and Pacific cod trawl 
catcher vessel fishery, respectively. The Council decided, and NMFS 
agrees, that a step-wise approach by sector allows for a simplified and 
more efficient approach to adjusting halibut PSC management measures in 
the BSAI.
    Comment 17: The Analysis reflects a carefully considered balance by 
the Council of competing considerations under the National Standards. 
In reaching its conclusion, the Council carefully weighed all the 
information before it, including the benefits to the directed fishery, 
the need for conservation of the halibut resource, the practicability 
of bycatch reductions, and the potential impacts to Amendment 80 if 
halibut PSC limits implemented by this action were to constrain the 
fishery in future years. Based on the sum total of that information, 
the Council struck a middle ground by rejecting alternatives that 
considered setting PSC limits at levels higher than and lower than the 
halibut PSC limits included in this action.
    Response: NMFS acknowledges this comment.
    Comment 18: NMFS should uphold and approve the careful balance the 
Council struck. As the proposed rule correctly recognizes, Amendment 
123 is consistent with all the National Standards, but most relevantly 
National Standards 1, 4, 8, and 9. It is also consistent with long-
neglected principles of environmental justice, Administration guidance, 
and other relevant legal and statutory principles.
    Response: NMFS acknowledges this comment.
    Comment 19: NMFS must inform the Council of its interpretation of 
the Magnuson-Stevens Act's National Standards as required by the 
Magnuson-Stevens Act implementing regulations at Sec.  600.305(a)(2). 
The proposed action is a novel approach to fishery management and is 
particularly reliant upon interpretations of terms in the National 
Standards that are not defined in statute or regulation, such as, but 
not limited to, the terms ``reasonably calculated to promote 
conservation'' and ``fair and equitable'' in National Standard 4 and 
``minimize bycatch to the extent practicable'' in National Standard 9. 
NMFS did not provide the Council with the Secretary of Commerce's 
interpretation of these or any National Standard terms during the 
deliberations that resulted in the proposed action. In fact, the 
Council received contrary guidance. Without clear and appropriate 
required guidance, the Council did not receive the information required 
to lawfully develop and propose an action, as required by NMFS's 
regulations.
    Response: NMFS disagrees. The Secretary of Commerce published 
guidelines to the ten National Standards at Sec. Sec.  600.305 through 
600.355. The regulation cited in the comment, Sec.  600.305(a)(2), 
states the purpose of the guidelines and is satisfied by publication of 
the guidelines themselves. The phrases cited as undefined by the 
comment are not specialized terms of art, and separate regulatory 
action to interpret terms within the guidelines is not necessary prior 
to implementing this action. NMFS has not applied the National 
Standards in any novel way in this rulemaking. For more discussion of 
the National Standards, see Section 7.1 of the Analysis (see ADDRESSES) 
and the responses to comments under the National Standard headings 
below.
    Comment 20: NMFS should disapprove Amendment 123 because: 1) it is 
not practicable under National Standard 9, consistent with its decision 
on Amendment 75 to the BSAI FMP (68 FR 52142, September 2, 2003); 2) 
NMFS did not prepare an adequate analysis, consistent with its decision 
on Amendment 23 to the Pacific Coast Groundfish FMP (76 FR 27508, May 
11, 2011); and 3) the negative economic impacts of Amendment 123 on the 
Amendment 80 sector consistent with its decision on Amendment 18 (57 FR 
23231, June 3, 1992).
    Response: NMFS disagrees. The Secretary of Commerce reviews each 
FMP amendment independently for consistency with all applicable law at 
the time the Council transmits the amendment for review by to the 
Secretary of Commerce. A decision on a past amendment is not binding in 
perpetuity, particularly in the context of new circumstances and 
requirements; therefore, the Secretary of Commerce's decision to 
disapprove or partially approve Amendments 75, 23, and 18 are not 
relevant to this action.
National Standard 1
    Comment 21: This action is not consistent with National Standard 1 
because achieving optimum yield (OY) is not actually an objective of 
the proposed action and the action decreases the likelihood of 
achieving OY because halibut PSC limits included in this action at 
times of low halibut abundance are likely to constrain Amendment 80 
fishing activity.
    Response: NMFS disagrees. The Council and NMFS determined that 
Amendment 123 and this final rule are consistent with National Standard 
1 because, under all the PSC limits

[[Page 82749]]

established by this action, the BSAI groundfish fisheries will achieve 
OY on a continuing basis as described in Section 5.3.2.3.1 of the 
Analysis (see ADDRESSES). National Standard 1 states that conservation 
and management measures shall prevent overfishing while achieving, on a 
continuing basis, the OY from each fishery for the U.S. fishing 
industry. A potential result of this action is that the Amendment 80 
sector's harvests of groundfish could be constrained at the low and 
very low states of halibut abundance; however, this does not materially 
compromise the ability of the BSAI groundfish fisheries to continue 
harvesting between 1.4 and 2.0 million mt of groundfish annually. The 
phrase ``achieving, on a continuing basis'' is defined in the national 
standard guidelines at Sec.  600.310(e)(3)(i)(B). Achieving OY does not 
place a requirement that every individual regulatory action must result 
in reaching OY. Rather, this standard is applied to the FMP as a whole.
    The purpose of this action is to link halibut PSC limit for 
Amendment 80 sector to halibut abundance to minimize bycatch to the 
extent practicable. The Council and NMFS recognized in the Purpose and 
Need statement (see Section 1.2 of the Analysis) that NMFS must ensure 
the BSAI groundfish fisheries will continue to achieve optimum yield as 
required by the Magnuson-Stevens Act. The Analysis demonstrates that, 
after NMFS implements this final rule, those fisheries will do so.
    Comment 22: This action makes it less likely that the BSAI 
groundfish fisheries will continue to achieve OY on a continuing basis 
because there are reasonably foreseeable circumstances that were not 
considered by NMFS. In 2009 and 2010, the BSAI groundfish fisheries did 
not achieve OY because the total harvest was 1,335,116 mt and 1,354,662 
mt, respectively, which is lower than the low range of OY at 1.4 
million mt. The Amendment 80 sector fisheries harvest approximately 12 
to 25 percent of the overall BSAI groundfish fisheries annually and 
generally at a higher percentage in years of low pollock abundance. 
This action is likely to constrain Amendment 80 sector harvests in 
years of low halibut abundance, and NMFS failed to consider the 
combined impacts of this action with the reasonably foreseeable event 
that pollock stocks could be low again in future years.
    Response: Under National Standard 1 guidelines, OY is a long-term 
average amount of desired yield from a stock, stock complex, or 
fishery. This means that, even if a fishery were to fail to reach 
harvest levels within the OY range for a few years over multiple 
decades of fishing, NMFS's management of that fishery would still be 
consistent with National Standard 1. The Analysis notes that the annual 
groundfish harvest can be highly variable across years for a variety of 
reasons (e.g., changing ocean conditions, variability in recruitment or 
prey field, fisheries interactions, etc.) and that may result in years 
where catch is not within the OY range. However, in light of the 
regulations explaining National Standard 1's terms and purpose, the 
failure to harvest groundfish within the OY range for two out of 
several years of fishing does not mean that NMFS's management of the 
fishery fails to comply with National Standard 1.
    The Analysis notes that the Council considered 2016 through 2020 to 
be the appropriate time period over which to evaluate halibut PSC use 
because it reflects Amendment 80 sector operations under their Halibut 
Avoidance Plan and deck sorting along with other available tools to 
avoid halibut and reduce halibut mortality. The example in the Analysis 
of a year without Amendment 80 harvest is meant to illustrate the 
conclusion that possible Amendment 80 harvest reductions due to PSC 
constraints do not cause an inability to achieve OY on a continuing 
basis. See Section 5.3.2.3.1 of the Analysis for further discussion on 
OY.
    Comment 23: NMFS's novel analytical approach to evaluating OY 
presumes that the Amendment 80 sector could be eliminated by the 
proposed action without running afoul of National Standard 1. There is 
nothing in the history of the development of OY for the BSAI groundfish 
fisheries that supports the notion that OY should be achieved by 
eliminating one of the fisheries.
    Response: NMFS does not expect this action to eliminate the 
Amendment 80 sector. The hypothetical example of achieving OY without 
contribution by Amendment 80 was used to illustrate why NMFS expects 
that, after this action, the BSAI groundfish fisheries will continue to 
achieve OY. See Comments 21 and 22 above.
    NMFS expects that the halibut PSC limits established in table 58 to 
part 679 may prevent the Amendment 80 sector from fully harvesting TACs 
in years with low halibut abundance; however, changes in fishing 
behavior and effective use of available bycatch reduction tools, 
including halibut excluders, halibut avoidance plans, and deck sorting, 
could help mitigate potential negative economic impacts.
National Standard 2
    Comment 24: NMFS fails to consider the best scientific information 
available (contrary to National Standard 2) to assess reasonably 
foreseeable future environmental conditions that are likely to 
constrain harvests for the Amendment 80 sector in a manner that will 
result in a failure to achieve OY on a consistent basis. Such 
conditions include, but are not limited to, constraints on salmon 
bycatch that could limit the pollock fishery (a major contributor of 
the groundfish harvests), constraints due to low crab stock abundance 
that will likely result in tighter restrictions on crab PSC limits and/
or new closed areas for Amendment 80 trawling, and increasing 
variability in oceanic and atmospheric conditions that scientists 
predict will shift flatfish and other Amendment 80 target species and 
result in more target species moving to areas where the Amendment 80 
sector is not allowed to fish (e.g., the Northern Bering Sea Research 
Area).
    Response: The Council and NMFS determined that Amendment 123 and 
this final rule are consistent with National Standard 2, as explained 
in Section 7.1 of the Analysis. National Standard 2 states that 
conservation and management measures shall be based upon the best 
scientific information available. NMFS used the best scientific 
information available to assess the likely impacts of this action and 
assessed future environmental conditions in this action. NMFS 
considered the cumulative effects of this action in the context of 
other reasonably foreseeable future actions in Section 5.8 of the 
Analysis. The Council is in the early stages of developing new 
potential actions to address bycatch of salmon and crab in BSAI 
groundfish fisheries, including the potential additional actions 
referenced in this comment; however, the Council has not yet made a 
recommendation to NMFS. Actions are considered reasonably foreseeable 
if some concrete step has been taken toward implementation, such as a 
Council recommendation or NMFS's publication of a proposed rule. 
Actions only ``under consideration'' are not generally included because 
they may change substantially before adoption or may not be adopted at 
all. They therefore cannot be reasonably described, predicted, or 
foreseen. See the response to Comment 64 for a discussion of NMFS's 
consideration of changes in oceanic and atmospheric conditions.
    Comment 25: NMFS did not use the best available information to 
evaluate the effects of the action on the halibut

[[Page 82750]]

stock because many tables in the Analysis do not include data available 
from 2020 and 2021. By not including catch and revenue information from 
these years in the Analysis, NMFS has failed to consider the expanded 
harvest opportunities available in Area 4 to the directed halibut fleet 
in 2021 and 2022. In 2022, the Area 4 halibut fishery received the 
largest catch allocation in 10 years, and catch data, available on 
NMFS's website, show a trend of decreasing utilization in the Area 4 
halibut fishery that is not considered at all in the Analysis or 
anywhere else in the record. NMFS also inconsistently picks and chooses 
when it will use certain datasets in both the Analysis and the proposed 
rule. This inconsistent use of data is arbitrary and represents a 
failure to use the best scientific information available.
    Response: NMFS evaluated the data used in the Analysis. Some tables 
in the Analysis do not include data from 2020 through 2022 because it 
is likely that such data were significantly affected by the COVID-19 
pandemic and, therefore, less illustrative of historical trends and 
future expectations. For example, allocation and utilization of halibut 
by the directed fishery may have been significantly affected by the 
pandemic. See Comments 27, 42, and 60 for further discussion about why 
these data sets were chosen.
    Comment 26: The proposed action is arbitrary and capricious because 
it fails to address the likely redistribution of halibut and use the 
best available information from both the EBS and the northern Bering 
Sea trawl surveys to establish its abundance-based bycatch limit.
    Response: NMFS disagrees. After substantive and lengthy 
consideration during the public Council process, the Council 
recommended and this action implements an annual process for 
determining the Amendment 80 sector halibut PSC limit that links the 
PSC limit to halibut abundance using two indices of halibut abundance. 
The two indices selected (IPHC index and the NMFS EBS index) were 
determined by the Council's SSC to be the best scientific information 
available. Data from the northern Bering Sea trawl survey is an input 
into the model used to generate the IPHC index, so the data are 
incorporated into the process for establishing the Amendment 80 halibut 
PSC limits implemented under this action; however, it was not selected 
as a primary index upon which to base the annual PSC limits. A summary 
of the NMFS EBS index and the IPHC index are provided above in the 
preamble to this final rule as well as a detailed description is 
provided in Section 1.6 of Analysis.
    Comment 27: By providing an ``average'' estimate of costs for the 
entire sector based on a limited set of years, not incorporating 
estimates of all direct and indirect costs, and not examining the true 
potential costs of the proposed action, NMFS presents an inaccurate 
assessment of the impacts that does not consider all of the best 
scientific information available and is otherwise arbitrary.
    Response: NMFS disagrees. NMFS recognizes that the impacts of this 
action on the Amendment 80 sector and their efficiency and 
profitability will vary by year, depending on environmental conditions, 
economic conditions, and other variables. This variability is analyzed 
and accounted for in the development of this action. The Council and 
NMFS chose to use the 2016 through 2019 dataset because it is more 
likely to be predictive of potential future costs as explained in 
Section 5.3.2 of the Analysis.
National Standard 3
    Comment 28: NMFS provides no rational explanation for how the 
halibut stock is managed as a unit throughout its range consistent with 
National Standard 3. National Standard 3 requires that stocks be 
managed as a unit throughout its range to the extent practicable. 
National Standard 3 also encourages NMFS to coordinate with other 
governments, agencies, and councils to develop an FMP for any stock 
overlapping jurisdictions.
    Response: Management of the halibut stock is not regulated by the 
Magnuson-Stevens Act or its National Standards, including National 
Standard 3. The Convention for the Preservation of the Halibut Fishery 
of the Northern Pacific Ocean and Bering Sea and the Northern Pacific 
Halibut Act of 1982 established the governing body (IPHC) and processes 
for managing halibut throughout its range. Section 5(c) of the Halibut 
Act provides that the Council may develop regulations within U.S. 
waters over halibut provided that they are not in conflict with the 
IPHC's regulations and that they are approved by the Secretary of 
Commerce.
    The IPHC manages Pacific halibut as a single stock between 
California and the upper reaches of its range in Alaska. This action 
does not change the direct management of the halibut stock in any way. 
Rather, this action modifies management of the BSAI groundfish 
fisheries and links the halibut PSC limit for the Amendment 80 sector 
to halibut abundance. As explained below, through the BSAI groundfish 
FMP, NMFS manages groundfish stocks consistent with National Standard 
3.
    Comment 29: The proposed action would manage groundfish stocks very 
differently depending on who is fishing them in violation of National 
Standard 3. The BSAI yellowfin sole fishery would have more restrictive 
halibut PSC provisions when being fished by trawl vessels in the 
Amendment 80 sector than in the TLAS fishery.
    Response: The Council and NMFS determined that Amendment 123 and 
this final rule are consistent with National Standard 3, as explained 
in Section 7.1 of the Analysis. National Standard 3 states that, to the 
extent practicable, an individual stock of fish shall be managed as a 
unit throughout its range, and interrelated stocks of fish shall be 
managed as a unit or in close coordination (16 U.S.C. 1851(a)(3)). 
National Standard 3 guidelines explain how to structure appropriate 
management units for stocks and stock complexes (Sec.  600.320). The 
Guidelines state that the purpose of the standard is to induce a 
comprehensive approach to fishery management (Sec.  600.320(b)). The 
guidelines define ``management unit'' as ``a fishery or that portion of 
a fishery identified in an FMP as relevant to the FMP's management 
objectives,'' and state that the choice of a management unit ``depends 
on the focus of the FMP's objectives and may be organized around 
biological, geographic, economic, technical, social, or ecological 
perspectives'' (Sec.  600.320(d)). National Standard 3 does not require 
an FMP to treat different sectors the same because they fish the same 
stock, and it does not preclude setting bycatch limits that differ by 
sector.
    The BSAI halibut PSC limit is assigned to three sectors and the CDQ 
Program. The halibut PSC limit is apportioned to the Amendment 80 
sector to execute all their fisheries, not only yellowfin sole. The 
Amendment 80 cooperative decides how, among the fisheries that are open 
for directed fishing, to use their PSC limit. In years where there is 
an Amendment 80 limited access fishery, halibut PSC is assigned to the 
Amendment 80 limited access fishery, and it is apportioned into PSC 
allowances for trawl fishery categories according to the procedure in 
Sec.  679.21(b)(1)(ii)(A)(2) and (3). The BSAI trawl limited access 
sector's halibut PSC limit is also apportioned into PSC allowances for 
trawl fishery categories according to the procedure in Sec.  
679.21(b)(1)(ii)(A)(2) and (3).
    Due to the high PSC use by the Amendment 80 sector, the Council 
chose to focus this action only on the Amendment 80 sector; see 
response to

[[Page 82751]]

Comment 13 for details. For more information about halibut management 
and bycatch in the different fishery sectors, see the preamble for the 
proposed rule (87 FR 75570, December 9, 2022). See the response to 
Comment 16 for an explanation of other actions to reduce halibut PSC 
limits in other fisheries.
National Standard 4
    Comment 30: NMFS fails to determine whether the proposed action is 
an allocation. NMFS's failure to determine whether the proposed action 
is an allocation as a threshold matter violates the Magnuson-Stevens 
Act and is arbitrary. NMFS muddles the record with statements 
suggesting that the proposed action is and is not an allocation.
    Response: NMFS disagrees. National Standard 4 states that 
conservation and management measures shall not discriminate between 
residents of different states and provides guidance regarding fair and 
equitable distribution of fishing privileges if it becomes necessary. 
NMFS does not consider this action to be an allocation of fishing 
privileges under National Standard 4 but has provided analysis to show 
that, even if it were an allocation, it is consistent with National 
Standard 4. To be an allocation of fishing privileges, the National 
Standard 4 guidelines state there must be a direct and deliberate 
distribution of the opportunity to participate in a fishery among 
identifiable, discrete user groups or individuals. While management 
measures can have indirect allocative effects, only those that result 
in direct distribution of fishing privileges are allocations for 
purposes of National Standard 4. The Analysis states that, under the 
set of alternatives considered, there is no direct allocation or 
assignment of fishing privileges to the directed halibut fishery 
participants, nor any other allocation under National Standard 4.
    At times, the Analysis may refer to a ``PSC allocation'' e.g., 
Analysis at page 242 (``When a PSC allocation is reached''). In that 
context, allocation carries its plain meaning (apportionment or 
distribution) which is distinct from National Standard 4's usage, i.e., 
direct and deliberate distribution of fishing privileges. NMFS 
acknowledges that it might have been able to avoid some confusion had 
it used the terms ``limit'' or ``apportionment'' where appropriate in 
that context.
    Comment 31: The proposed action violates National Standard 4 
because it allocates or assigns fishing privileges among various U.S. 
fishermen, but this allocation is not ``[f]air and equitable to all 
such fishermen.'' Any allocation of halibut from the Amendment 80 
sector to the directed halibut fishery is not fair or equitable because 
the negative effect on the Amendment 80 sector is extremely 
disproportionate to any benefit that could be realized by the directed 
halibut fishery. NMFS also fails to provide any interpretation of the 
term ``fair and equitable,'' and its application of that term in its 
analysis is, at best, cursory and conclusory. NMFS's assertion that 
this proposed action provides a fair and equitable allocation is both 
baseless and unexplained.
    Response: As explained above (see response to Comment 30), this 
action is not an allocation under National Standard 4. But even if it 
were, it is fair and equitable and consistent with National Standard 4. 
As explained in the response to Comment 12, the reason for focusing on 
the Amendment 80 sector is due to the high proportion of the halibut 
PSC used in that sector. While the action could impose regulatory costs 
to one sector, the actual cost borne does not determine whether the 
action is fair, equitable, reasonably calculated to promote 
conservation, or provides an excessive share to anyone. NMFS determined 
that the costs were reasonable when balanced with the purpose and need, 
and the conservation, social, management, and environmental impacts. 
NMFS also determined that the action is fair and equitable because this 
action links halibut PSC limit for the Amendment 80 sector to levels of 
halibut abundance. Allocation of halibut to the directed halibut 
fishery is not the purpose of this action, and this action makes no 
such allocation. The Analysis makes clear that under the existing 
management regulations applicable to the directed halibut fleet, the 
IPHC establishes the annual catch limits for the directed halibut 
fishery. Any benefit to the directed halibut fishery is a potential, 
secondary benefit to the action. See the response to Comments 32 
through 38 below for further discussion on the consistency of the 
alternatives with National Standard 4.
    Comment 32: Amendment 123 will begin to address conservation and 
equity issues in halibut management and will provide benefits to coast-
wide North Pacific stakeholders and communities in both the short- and 
long-term. The amendment allows more of the harvesters of BSAI halibut 
to share in its conservation by establishing abundance-based measures 
for catch limits. It also provides much needed equity for Alaskans who 
rely on halibut for not only income but also food security, cultural 
traditions, and many other aspects of community well-being that cannot 
be captured in economic data alone. This is a more equitable mechanism 
for allocating conservation responsibilities and, therefore, 
complements the intent of National Standard 2 and National Standard 4.
    Response: NMFS agrees. The problematic nature of the no-action 
alternative for directed halibut fishery participants under halibut low 
abundance conditions is recognized in the Council's purpose and need 
statement. The action alternatives propose a range of halibut PSC limit 
reductions under high to low abundance conditions. Amendment 123 
includes reductions under all but high IPHC index conditions and, in 
that case, proposes no change to the halibut PSC limit, thus providing 
equality for all users at times of reduced halibut abundance. Between 
1998 and 2016, the PSC limit for the Amendment 80 sector would have 
ranged between 1,745 mt and 1396 mt (20% reduction). In years after 
2016 the IPHC index shows a decline in overall halibut abundance in 
Area 4 that has resulted in notable harvest reductions among the direct 
halibut fishery participants and would have resulted in a 25% reduction 
in the Amendment 80's PSC limit had this action been in place.
    Comment 33: The proposed action cannot be reasonably expected to 
result in any increase in harvest opportunities in Area 4 because the 
IPHC establishes catch limits in Area 4. If there are any increases in 
abundance in Area 4, there is no guarantee that the directed halibut 
users in Area 4 would benefit. By relying on such contingencies over 
which NMFS has no control, and that are not subject to the Magnuson-
Stevens Act, the purpose and need statement is irrational, 
insufficient, uncertain, and unlawful.
    Response: This comment mischaracterizes the action's purpose and 
need. The purpose of this action is to link the halibut PSC limit for 
the Amendment 80 sector to halibut abundance. This action will ensure 
that the Amendment 80 sector's use of halibut PSC does not become a 
larger proportion of the overall halibut PSC in the BSAI in years of 
lower levels of halibut abundance which will promote conservation of 
the halibut stock. This action does not allocate halibut harvest 
opportunities in Area 4. Halibut management is explained in Section 4.4 
of the Analysis. The purpose and need statement includes the possible 
indirect result that the action may provide additional harvest 
opportunities in the directed halibut fisheries. However, that

[[Page 82752]]

would be an ancillary effect if it occurred, not the primary purpose of 
the action. Though there is much uncertainty about the magnitude and 
timing of possible benefits to the directed halibut fishery in Area 4, 
it is reasonable to recognize the possibility of these indirect 
benefits in the purpose and need statement for this action.
    Comment 34: NMFS provides no interpretation of the term 
``reasonably calculated to promote conservation'' and otherwise fails 
to rationally explain why the proposed action is ``reasonably 
calculated to promote conservation.'' The Analysis contradicts NMFS's 
conclusion that this action will promote conservation, because the 
proposed action will have no effect on the conservation of the halibut 
stock. Amendment 123 is not consistent with National Standard 4 because 
it does not improve conservation of halibut.
    Response: The National Standard guidelines define the ``promotion 
of conservation'' at 50 CFR 600.325(c)(3)(ii), and the definition 
includes actions that encourage a rational, more easily managed use of 
the resource. An action may also promote conservation (in the sense of 
wise use) by optimizing the yield in terms of size, value, market mix, 
price, or economic or social benefit of the product.
    The Council and NMFS determined that Amendment 123 and this final 
rule are consistent with National Standard 4, as explained in Section 
7.1 of the Analysis. NMFS notes that the Analysis indicates that none 
of the alternatives will affect overall halibut spawning stock biomass, 
which is measured coastwide from California to Alaska. Each action 
alternative, however, would set the Amendment 80 sector's halibut PSC 
limit at or below the current level depending on indices of halibut 
abundance. The reduction of halibut bycatch mortality is a conservation 
measure; by definition, lower halibut PSC limits will result in lower 
halibut mortality, which is expected to provide benefits to the 
coastwide halibut stock, the directed halibut fisheries, or both. Given 
typical past IPHC practice, NMFS expects that much of the biomass 
conserved by this measure will accrue to the directed commercial 
halibut fishing limits. Later harvest of conserved halibut does not 
affect this action's conservation benefit. The IPHC's action with 
regard to halibut conserved under this action is neither necessary nor 
detrimental to this action or its analysis. Given the economic and 
cultural value of halibut and the competing interests of the 
commercial, recreational, sport, and subsistence users, the Council and 
NMFS's decision to create a bycatch management program that restricts 
bycatch further when halibut abundance is low represents a more 
rational approach to managing the halibut resource and promotes its 
wise use.
    In addition, the halibut ``stock'' is distinct from and broader 
than the ``spawning stock biomass'' and is defined in the Magnuson-
Stevens Act at 16 U.S.C. 1802(42) (``stock of fish'') as a species, 
subspecies, geographical grouping, or other category of fish capable of 
management as a unit. Conserved fish may benefit the stock even if they 
do not immediately increase the spawning stock biomass, including by 
greater survival of small halibut, i.e., under 26 inches in size, which 
are expected to have longer-term positive impacts on the stock and 
directed fishing.
    Comment 35: It is unfair that under the static PSC limit of 1,745 
mt, when BSAI halibut abundance declines PSC in Amendment 80 fisheries 
can become a larger proportion of total halibut removals in the BSAI, 
particularly in Area 4CDE, and can reduce the proportion of halibut 
available for harvest in directed halibut fisheries. This has had 
disproportionately negative impacts on local participants in the 
directed halibut fishery.
    This action would see PSC limits rise and fall based on the 
abundance of halibut. This is a compromise that establishes a measure 
of social equity and resource conservation. Bering Sea halibut 
fishermen will see immediate benefits of increased directed catch 
limits which will support Bering Sea communities.
    Response: NMFS acknowledges the support for this action. The 
purpose and need statement recognizes that when BSAI halibut abundance 
declines, halibut PSC in Amendment 80 fisheries can become a larger 
proportion of total halibut removals in the BSAI, particularly in Area 
4CDE, and can reduce the proportion of halibut available for harvest in 
directed halibut fisheries. The full purpose and need statement is 
available in Section 1.2 of the Analysis (see ADDRESSES). NMFS agrees 
that Bering Sea halibut fishermen may benefit from this action; 
however, the timing and magnitude of those benefits are uncertain.
    Comment 36: NMFS fails to explain why it must take action to 
achieve ``equity'' or how this action improves equity.
    Response: The Council recommended, and NMFS is implementing, this 
action to link Amendment 80 halibut PSC limits to levels of halibut 
abundance. This action reduces bycatch of halibut to the extent 
practicable and also reflects equitable considerations between 
groundfish fishermen and directed halibut users. This action will 
reduce Amendment 80 halibut PSC limits when halibut abundance 
decreases, which is analogous to what typically happens to the harvest 
limits of the direct halibut fishery when abundance decreases. This 
action will reduce the disparity between the directed halibut fishery 
and the Amendment 80 sector by implementing PSC limits for the 
Amendment 80 sector that fluctuate according to halibut abundance. This 
will mean that, annually, indices of halibut abundance will be used to 
establish the Amendment 80 PSC limit. The IPHC will also use indices of 
halibut abundance to establish the directed halibut fishery catch 
limits. This action may benefit the stock and it may result in 
increased opportunities for directed halibut fishing among the 
recreational, sport, subsistence, and commercial users.
    This action minimizes halibut bycatch in the Amendment 80 sector to 
the extent practicable. There is no specific requirement that a bycatch 
minimization measure achieve ``equity.'' Equitable considerations, 
however, serve varying roles in the development of actions under the 
Magnuson-Stevens Act. For example, section 303(a)(14) of the Magnuson-
Stevens Act requires FMPs to allocate any fishery harvest restrictions 
or recovery benefits fairly and equitably among the commercial, 
recreational, and charter fishing sectors in the fishery. Similarly, 
under National Standard 4 and its guidelines, allocations of fishing 
privileges must be fair and equitable. Equitable considerations are 
also relevant to determinations made under E.O. 12866 and E.O. 13563. 
It was well within the Council's purview to require lower bycatch 
levels during times of low abundance given that the directed fishery is 
expected to have lower harvest levels at times of low abundance. The 
Council and NMFS view this as a more equitable approach. The term 
``equitable'' in this case has its common meaning and does not carry a 
particularized statutory or regulatory definition.
    Comment 37: The purpose and need statement does not mention 
``equity.'' Thus, NMFS's stated justification for the proposed action 
(i.e., that it is ``equitable'') arbitrarily and unlawfully fails to 
satisfy or otherwise address the stated purpose and need. It is 
arbitrary for NMFS to conclusively determine that the proposed action 
is ``fair and equitable'' (presumably on National

[[Page 82753]]

Standard 4 grounds) without even determining whether its proposed 
action constitutes an allocation.
    Response: NMFS does not consider this action to be an allocation as 
described in response to Comment 30. The Council's purpose and need 
statement for this action is included in Section 1.2 of the Analysis. 
This action links the halibut PSC limit for the Amendment 80 sector to 
levels of halibut abundance. Section 5 of the Analysis addresses how 
this action achieves such conservation through the minimization of the 
Amendment 80 sector's halibut bycatch to the extent practicable and 
improves consistency with the IPHC's management of halibut.
    This final action also achieves an equitable outcome because, at 
decreasing levels of halibut abundance, NMFS expects the IPHC to reduce 
total halibut mortality limits which will directly influence the 
directed halibut catch limits and under this action the Amendment 80 
sector's PSC limit will also be reduced. This is in contrast to the 
previous static PSC limit of 1,745 mt, which meant that the Amendment 
80 sector's PSC constituted a greater proportion of overall halibut 
mortality in the BSAI when halibut abundance decreased. This was 
exemplified in 2018 when the Amendment 80 halibut PSC limit accounted 
for 49 percent of the IPHC's 3,559 mt halibut mortality limit for Area 
4. By diminishing that effect, this action conserves halibut and also 
achieves a more fair and equitable outcome.
    Comment 38: This proposed action violates National Standard 4 
because it discriminates against residents of different states by 
establishing a regulation that would limit the harvesting activities of 
only one sector, and effectively one ``person'' (the Amendment 80 
cooperative), which is incorporated in only one state. Amendment 80 
would be the only sector or fishery subject to an abundance-based PSC 
limit.
    Response: NMFS disagrees. While the Amendment 80 cooperative may be 
incorporated in Washington, the residency of the Amendment 80 
cooperative or any of its members, employees, or associated people is 
not the basis of this action. This action is a conservation and 
management measure, applicable to the entire Amendment 80 sector 
without regard to state of incorporation or residency. The Analysis on 
pages 17 and 85 and the response to Comment 16 explain the rationale 
behind focusing this action on the Amendment 80 sector.
National Standard 5
    Comment 39: NMFS did not consider efficiency in the utilization of 
fishery resources, as National Standard 5 requires. The Analysis 
describes the various ways in which the proposed action would reduce 
efficiency. The proposed action increases inefficiency and cost and 
results in a negative net benefit to the Nation.
    Response: NMFS disagrees. The Council and NMFS determined that 
Amendment 123 and this final rule are consistent with National Standard 
5, as explained in Section 7.1 of the Analysis. National Standard 5 
states that conservation and management measures shall, where 
practicable, consider efficiency in the utilization of fishery 
resources; except that no such measure shall have economic allocation 
as its sole purpose. Efficiency under National Standard 5 is a broad 
concept that considers efficiency not just in one sector or solely in 
costs but includes utilization of fishery resources (Sec.  600.330(b)). 
This means that, in terms of aggregate costs, efficiency becomes a 
conservation objective, where conservation constitutes wise use of all 
resources involved in the fishery, not just the directed fishery 
stocks. While a perfectly efficient fishery would harvest the OY with 
the minimum use of economic inputs such as labor, capital, interest, 
and fuel, these economic concerns are not the only aspects to consider 
when analyzing the potential impacts of a management action. National 
Standard 5 says the measures must consider efficiency but does not 
mandate the most efficient structure. Efficiency may be reduced to 
reach the BSAI FMP's social or biological objectives, which includes 
the reduction of bycatch and waste.
National Standard 6
    Comment 40: NMFS fails to explain how the proposed action is 
consistent with National Standard 6 because the proposed action would 
create highly restrictive PSC limits for only the Amendment 80 sector 
and would hinder the ability of the Amendment 80 sector to adapt to the 
uncertain effects of climate change on fish stocks in the region.
    Response: NMFS disagrees. National Standard 6 states that 
conservation and management measures shall take into account and allow 
for variations among, and contingencies in, fisheries, fishery 
resources, and catches. Amendment 123 and this final rule take into 
account the variability in and contingencies for Amendment 80 sector 
fishery operations. The Analysis discusses these at length, including 
the creation of table 58 to part 679, which provides for yearly 
flexibility, takes into account changes in environmental and other 
factors, and provides for variability. Changes in methods used by 
fishermen to avoid halibut PSC are noted as a possibility for improving 
halibut avoidance by the Amendment 80 sector, in that new developments 
may help make PSC limits less constraining. Changes in the environment 
and economics are discussed to the extent practicable in the Analysis. 
Section 3.3 of the Analysis gives evidence that the Amendment 80 sector 
has been in a near-constant state of change during the analyzed period 
and that the way in which historical fishery data were used for the 
impact analysis in Section 5.3.2 should be carefully considered, which 
they were.
    Comment 41: Amendment 123 is highly likely to cause the 
consolidation of the majority of Amendment 80 harvest opportunities 
into fewer vessels, because many vessels will not have adequate halibut 
PSC limits to harvest their allocations and may lead to even greater 
consolidation in the fishery, and this important factor is ignored by 
NMFS.
    Response: In Section 5.3.2.3 of the Analysis, NMFS analyzed the 
practicability of meeting the PSC limits considered, including the 
possibility that this action may cause consolidation of harvest 
opportunities into fewer vessels in the fishery. In Section 5.3.2.5 of 
the Analysis, NMFS recognizes that this is a possible outcome and did 
not overlook it.
    Comment 42: The proposed action is not consistent with National 
Standard 6 because NMFS relies on the ``average'' impact of the 
proposed action, and this does not comply with requirements at Sec.  
600.335(b). NMFS fails to consider the variations that occur in the 
fishery and the highly variable impacts on the Amendment 80 sector. 
Using average PSC use from the years 2016 through 2019 does not capture 
the full range of inter-annual variability in halibut PSC use by the 
Amendment 80 sector as well as the full range of reasons why this 
variability occurs.
    Response: The Council and NMFS determined that Amendment 123 and 
this final rule are consistent with National Standard 6, as explained 
in Section 7.1 of the Analysis. Here, NMFS did not rely on the average 
impacts in its decision-making but considered the range of impacts. To 
account for variability and in consideration of a range of impacts, 
NMFS and the Council use a matrix of various abundance levels derived 
from two indices and they

[[Page 82754]]

generate a range of halibut PSC limits. Table 58 to part 679 was 
specifically designed to be flexible in response to the abundance of 
the halibut stock.
    The Analysis includes the most recent data available at the time of 
publication, and notes that the Council considered 2016 through 2019 to 
be the appropriate time period to evaluate halibut PSC use because it 
reflects Amendment 80 sector operations under their Halibut Avoidance 
Plan and deck sorting, along with other available tools to avoid 
halibut and reduce halibut mortality. In Section 5.3.2.2.3 of the 
Analysis, NMFS acknowledges that halibut PSC use is variable due to a 
wide range of factors, including ocean conditions. Section 5.3.2.3.2 of 
the Analysis discusses potential impacts of changing environmental 
conditions on the practicability of the Amendment 80 sector to avoid 
bycatch, particularly as it relates to warmer Bering Sea water 
temperatures and spatial patterns of target fisheries. Further, Section 
5.3.2.5 of the Analysis notes that external factors, such as climate 
change, are also anticipated to have an impact on Amendment 80 halibut 
mortality rates. Table 2-5 in Section 2.1 of the Analysis describes the 
variation of PSC use found in those years.
    Comment 43: NMFS's disapproval of Amendment 22 to the Mackerel, 
Squid, and Butterfish Fishery Management Plan is instructive when 
analyzing consistency with National Standard 6. This action is 
inconsistent with National Standard 6 for similar reasons: it will 
result in reduced fishing opportunities and inefficiencies without 
conservation need or other rationale; it will hinder the Amendment 80 
sector's ability to adapt to climate change effects; it will reduce 
flexibility needed to respond to shifting and evolving markets; and it 
is likely to cause consolidation of the fishery.
    Response: NMFS notes that Amendment 22 to the Mackerel, Squid, and 
Butterfish Fishery Management Plan (Amendment 22) is from the Mid-
Atlantic Fishery Management Council. Amendment 22 would have removed 
vessels from the fishery by regulation to consolidate the fleet and 
NMFS disapproved it because there was insufficient evidence to support 
the purpose and need and Council's rationale for the action. Each 
Fishery Management Council develops fishery management plans and 
management measures independently for the specific management goals and 
objectives for each fishery. Therefore, comparison across regions, 
Councils, and fisheries is not a useful means of assessing the merits 
of a specific action. Amendment 22 should be viewed in context and 
based on the NMFS analysis prepared for that action. At the time of 
disapproval, NMFS offered five reasons for its disapproval in broad 
terms. Those circumstances and the analysis, decision, and proposed 
Amendment 22 are very different from the circumstances, analysis, and 
decision at issue in this action. The disapproval of Amendment 22 is 
neither comparable nor instructive to this action.
National Standard 7
    Comment 44: The proposed action is not consistent with National 
Standard 7 because it is expected to increase Amendment 80 operating 
costs and reduce fishing opportunities in years of low halibut 
abundance. This action is not practicable and does not minimize costs 
because NMFS envisions bankruptcy as a viable and reasonable outcome. 
NMFS should follow the example of disapproved Amendment 22 to the 
Mackerel, Squid, and Butterfish FMP. That action was found to not be 
necessary for conservation, did not solve the perceived race to fish, 
and reduced flexibility through restrictive possession limits and, as a 
result, was determined to be directly contrary to the intent of 
National Standard 7.
    Response: NMFS disagrees. The Council and NMFS determined that 
Amendment 123 and this final rule are consistent with National Standard 
7, as explained in Section 7.1 of the Analysis. National Standard 7 
promotes the greatest freedom of action in business and recreation, to 
the extent such action is consistent with ensuring wise use of the 
resources and reducing conflict in the fishery. This action seeks to 
ensure the wise use of the resource by reducing halibut PSC when 
abundance of halibut is low. As described in Section 3.3 of the 
Analysis, the Amendment 80 sector operates as a cooperative, so when 
operational challenges arise within the cooperative, the cooperative 
may implement resolutions and improvements. Section 5.3 of the Analysis 
describes how operating costs may increase for the Amendment 80 sector 
and that the potential for revenue decreasing exists.
    Despite the potential for decreasing revenue, the Analysis does not 
conclude that the bankruptcy of the fleet is likely to occur. The Mid-
Atlantic Fishery Management Council Illex squid fleet action (Amendment 
22) referenced by commenters would have removed vessels by regulation 
to consolidate the fleet, which is a very different type of action than 
this action to implement Amendment 123. As explained in response to 
Comment 43, each Fishery Management Council develops fishery management 
plans and management measures independently for the specific management 
goals and objectives for each fishery. Therefore, comparison across 
regions, Councils, and fisheries is not useful in this context and the 
disapproval of Amendment 22 is neither comparable nor instructive to 
this action.
    Comment 45: The proposed action fails to ensure wise use of fishery 
resources or reduce conflict as required under National Standard 7. The 
Amendment 80 fishery is responsible for a fraction of the overall 
coastwide halibut bycatch. In 2021 and 2022, halibut bycatch in the 
directed halibut fishery was at record low amount (in pounds) and 
represented approximately 10 percent and 9 percent, respectively, of 
total halibut removals from all sources. Halibut bycatch throughout the 
coastwide range of the halibut stock is at a record low of only 9 
percent of total halibut removals.
    Response: Halibut bycatch in the BSAI accounts for more than half 
of the coastwide total halibut bycatch. In the years 2010 through 2019, 
the Amendment 80 sector accounted for approximately 60 percent of the 
halibut bycatch mortality in the BSAI groundfish sectors (see Table 3-
18 in the Analysis). By reducing the Amendment 80 sector halibut PSC 
limit in years of low halibut abundance, this action ensures the wise 
use of fishery resources. Halibut bycatch in the directed halibut 
fishery or by other fisheries is outside the scope of this action. As 
explained in response to Comment 16, other actions have or will address 
some of that bycatch. The fact that it will continue to occur, however, 
does not mean that this bycatch reduction action fails to ensure the 
wise use of fishery resources. Otherwise, NMFS could never take any 
discrete or incremental action to solve wise use concerns in one 
fishery.
National Standard 8
    Comment 46: NMFS erroneously concluded that this action provides 
for the sustained participation of fishing communities and minimizes 
adverse economic impacts on such communities while balancing the 
requirements of the Magnuson-Stevens Act. This conclusion is not 
supported by the Analysis prepared for this action and does not fully 
consider the significant adverse impacts of the proposed action on the 
fishing communities that rely upon the Amendment 80 sector. NMFS does 
not analyze the certain and adverse impact of the proposed action on 
communities reliant on the Amendment 80 fishery,

[[Page 82755]]

compared to any benefits to communities reliant on the directed halibut 
fishery (which are uncertain).
    Response: NMFS disagrees. National Standard 8 requires conservation 
and management measures shall take into account the importance of 
fishery resources to fishing communities by utilizing economic and 
social data that are based upon the best scientific information 
available in order to provide for the sustained participation of such 
communities; and to the extent practicable, minimize adverse economic 
impacts on such communities. NMFS analyzed the impacts of this action 
on communities in Appendix 1 and in Section 5.5 of the Analysis, 
including impacts to communities that rely on the Amendment 80 sector 
as well as other communities, including subsistence users. While NMFS 
looked at possible benefits to communities that rely on directed 
fishing for halibut, those benefits were only seen as a possible 
indirect benefit of this action, as increasing allocation to the 
directed halibut fleet is a function of the IPHC and outside the scope 
of this action. This action takes into account those competing 
interests and strikes a balance among them and among the National 
Standards.
    Comment 47: Much of the analysis of community impacts is 
specifically focused on either a single community, Saint Paul, or a 
small group of discrete communities. NMFS's effort to reallocate 
halibut to benefit these communities (or Saint Paul individually) 
violates National Standard 8.
    Response: The Council and NMFS determined that Amendment 123 and 
this final rule are consistent with National Standard 8, as explained 
in Section 7.1 of the Analysis. The social impacts analyzed address a 
number of communities with directed halibut fisheries or other impacts 
and are not solely focused on Saint Paul. Saint Paul is discussed at 
length, however, because it is within a region with some of the highest 
halibut revenues and halibut dependency, meaning the potential indirect 
benefits of this action could more significantly affect this specific 
community. Further, as explained in response to Comment 31, this action 
is not an allocation, and it does not reallocate halibut to 
communities. The purpose of this action is to link the halibut PSC 
limit for the Amendment 80 sector to halibut abundance. This action 
will minimize halibut bycatch to the extent practicable and thus 
contribute to the conservation of the halibut resource, especially at 
times of low abundance.
National Standard 9
    Comment 48: NMFS provided no guidance to the Council or the public 
on the interpretation of the term ``practicability'' during 
consideration of this action, as required by National Standard 
guidelines. When Congress enacted the term in 1996, it stated that 
Regional Fishery Management Councils should make reasonable efforts in 
their management plans to prevent bycatch and minimize mortality, but, 
in so doing, could not ban a type of fishing gear or a type of fishing. 
Furthermore, Congress stated that practicability requires an analysis 
of the cost of imposing a management action.
    Response: Guidance on the interpretation of National Standard 9 is 
given in Sec.  600.350, which discusses a number of considerations 
relevant to the practicability analysis (63 FR 24212, May 1, 1998). As 
stated in the National Standard guidelines, inconvenience is not an 
excuse; bycatch must be avoided as much as practicable, and bycatch 
mortality must be reduced until further reductions are not practicable. 
Adherence to the National Standards is not discretionary, and the 
Councils are required to re-examine the conservation and management 
measures contained in their FMPs for ways to reduce bycatch on a 
continuing basis to ensure that bycatch is minimized to the extent 
practicable. This action is the result of NMFS's consideration of the 
costs and benefits of the PSC limit reductions at low abundance, and 
while NMFS agrees that there may be costs associated with the action, 
those costs do not exceed what is practicable. This analysis is 
consistent with National Standard 9, including the guidelines and the 
Magnuson-Stevens Act.
    Comment 49: The proposed action is feasible and practicable because 
existing halibut avoidance tools are not fully utilized within the 
Amendment 80 sector. Because of the individual vessel discretion 
inherent in the application of existing bycatch reduction tools, 
available data cannot establish the extent to which existing tools may, 
or may not, have been fully utilized in recent years. The Amendment 80 
sector could have chosen to not fully use available halibut avoidance 
measures to artificially inflate halibut PSC rates to improve their 
argument against this action by alleging that further halibut 
reductions are infeasible and impracticable.
    Response: NMFS acknowledges this comment.
    Comment 50: The proposed action is inconsistent with National 
Standard 9 because the Amendment 80 sector has already reduced halibut 
PSC usage to the maximum extent practicable using all available tools. 
The sector has reduced its halibut PSC usage by nearly 35 percent since 
2014. Amendment 123 would impose substantial operational costs at a 
time when costs are already rising, and it does not provide additional 
tools to help the fleet achieve the bycatch reductions expected to be 
imposed by this action.
    Response: The Council and NMFS determined that Amendment 123 and 
this final rule are consistent with National Standard 9, as explained 
in Section 7.1 of the Analysis. The Council recommended and NMFS agrees 
that further halibut bycatch reductions are practicable through the 
improved use of existing bycatch reduction tools. In the Analysis 
prepared for Amendment 123, NMFS acknowledged that the Amendment 80 
sector has already undertaken efforts and expenditures to reduce 
halibut bycatch and that dramatic increases in halibut avoidance or 
reductions in halibut mortality are not expected using existing bycatch 
reduction tools. However, additional incremental improvements are 
anticipated to be realized under lower halibut PSC limits and, if not 
realized, the Amendment 80 sector may forgo some amount of 
profitability to continue to reduce halibut mortality.
    New bycatch reduction tools are not necessary for this action to be 
practicable. The amount of halibut deck sorting varied during the 2016 
through 2019 period and decreased in 2020. When deck sorting was 
reported on a vessel during any week from 2016 through 2019, the vessel 
was deck sorting about 70 to 80 percent of halibut that were brought 
onboard the vessel. A change occurred in 2020 that resulted in the 
percentage of halibut that were deck sorted falling to 61 percent; in 
2021 (through mid-April) the percentage of halibut deck sorted was 
estimated to be 49 percent. Some have attributed the declining use of 
halibut deck sorting after 2019 to lower bycatch of halibut, meaning 
that individual Amendment 80 vessels did not need to deck sort to 
reduce halibut mortality because they were not encountering halibut at 
rates where it was necessary to deck sort. It is possible that with 
under a lower PSC limit, the Amendment 80 sector could increase their 
use of halibut deck sorting. As illustrated in Section 5.3.2.4 of the 
Analysis, the range of PSC limits established by the action are 
expected to have differential impacts on Amendment 80 firms. Throughout 
the Analysis, NMFS acknowledges that there are many factors, including 
choices at the individual firm level and

[[Page 82756]]

vessel operational level that contribute to realized PSC use.
    The amount of mortality reduction that may be expected with 
associated increased costs or reduced efficiency cannot be quantified 
with any certainty. If substantial reduction in halibut mortality is 
realized, it is likely to be derived from the development and 
implementation of new technologies. The Council and NMFS considered the 
potential negative economic and social impacts to the Amendment 80 
sector and concluded that this action strikes a balance between 
potential costs to the Amendment 80 sector and conservation of the 
halibut resource from reductions in bycatch. As explained in the 
response to Comment 71, NMFS has analyzed the potential costs 
associated with meeting the new bycatch limits and responded to similar 
comments in Section 8.4.2 of the Analysis. The Council and NMFS 
concluded that increased costs do not mean that further bycatch 
reductions are impracticable.
    Comment 51: NMFS fails to adhere to Magnuson-Stevens Act section 
303(a)(11) because Amendment 123 prioritizes the minimization of 
bycatch mortality over the minimization of bycatch overall, while the 
statute requires the reverse order of priority.
    Response: The purpose of this action is to link the halibut PSC 
limit for the Amendment 80 sector to halibut abundance. This action 
minimizes halibut bycatch to the extent practicable. Bycatch generally 
refers to catching non-targeted fish, while bycatch mortality more 
specifically refers to situations where those non-targeted fish die 
from their capture. Minimization of halibut bycatch is a purpose of the 
action, as stated in the purpose and need in Section 1.2 of the 
Analysis. Minimization of both halibut bycatch and bycatch mortality 
are expected results of the action, in that lower PSC limits will 
require Amendment 80 vessels to avoid halibut bycatch and, to the 
extent they cannot reasonably achieve further reductions in bycatch, 
use available tools to reduce the mortality of the halibut caught. This 
is consistent with the Magnuson-Stevens Act, including section 
303(a)(11) and National Standard 9.
    Comment 52: The proposed action is not consistent with National 
Standard 9, because, as indicated in the Analysis, this action could 
shift the location and timing of fisheries, which may result in shifts 
of bycatch. As a result the proposed action is not expected to reduce 
the bycatch of other species, such as crab, or enhance the resulting 
population or ecosystem effects. The impacts on other species were not 
analyzed.
    Response: The Analysis considers that there may be shifts in timing 
and location of fishery operations consistent with the current 
operations of bycatch avoidance of multiple species and inter annual 
variability in fishing timing and location across sectors. Section 3 of 
the Analysis describes crab PSC management in the groundfish fisheries 
and the Amendment 80 sector and concludes that no change to crab PSC 
management in the Amendment 80 sector is anticipated. Discussion of 
potential impacts to bycatch rates for other species in Section 5.6 of 
the Analysis is theoretical and identifies that as a possible result of 
any bycatch action. Section 6.0 describes impacts to marine mammals, 
seabirds, habitat and ecosystem. The Analysis does not indicate that 
this action is expected to result in increased bycatch of other species 
because this action will not shift the timing and location of fishing 
beyond the footprint already analyzed and implemented under the current 
management structure. Therefore, NMFS does not expect this action to 
increase the bycatch of other species beyond levels already encountered 
under existing management measures.
    Comment 53: The Proposed Action violates National Standard 9 
because it will impose substantial economic impacts on one fleet (the 
Amendment 80 sector), which will result in negative net benefits to the 
Nation. Additionally, the economic impacts to the Amendment 80 sector 
are underestimated according to the SSC's review of the draft Analysis 
in April 2021.
    Response: NMFS disagrees. Under National Standard 9, the Council 
and NMFS considered the net benefits to the Nation, including a range 
of economic and non-economic impacts. NMFS analyzed the impacts of this 
action on the Amendment 80 sector, the halibut stock, and the directed 
halibut fishery in Section 5 of the Analysis. Appendix 1 to the 
Analysis includes the SIA, which evaluated community and regional 
participation patterns as well as community level impacts and potential 
impacts to regional subsistence and sport halibut fisheries.
    The SSC April 2021 Minutes on the draft Analysis noted that the 
analysis provided an adequate discussion of the important assumptions 
that underlie the analysis and their implications for interpreting the 
estimated economic impacts. However, the SSC's comments indicated that 
the range of revenue impacts may be considerably larger than those 
estimated in the Analysis. This implied that uncertainty associated 
with revenue impacts may be higher than predicted and that the 
Amendment 80 sector's ability to predict and avoid halibut bycatch is 
uncertain given the weak correlation with halibut abundance.
    Input from the SSC received in April 2021 was taken into account in 
subsequent revisions to the Analysis during the Council process. 
Section 5.6 of the Analysis concludes that Amendment 123 is likely to 
result in a negative net economic benefit to the Nation; however, after 
considering the totality of potential impacts, including quantifiable 
and non-quantifiable economic and non-economic impacts, the Council and 
NMFS concluded that Amendment 123's overall benefits outweigh the 
negative economic impacts of this action and that Amendment 123 
maximizes the net benefits to the Nation.
    Comment 54: NMFS fails to consider the levels of halibut bycatch 
that currently exist, or that could exist under this proposed action, 
relative to other fisheries that have much higher rates of bycatch that 
NMFS has determined are fully compliant with National Standard 9. 
NMFS's own National Bycatch Report provides summaries of bycatch in 
each region, and in some regions, total bycatch exceeds total catch, 
and yet these regions are operating dozens of fisheries that NMFS has 
deemed meet the requirement to ``minimize bycatch to the extent 
practicable'' and are fully compliant with National Standard 9.
    Response: Each Fishery Management Council develops fishery 
management plans and management measures independently for the specific 
management goals and objectives for each fishery. Therefore, comparison 
across regions, Councils, and fisheries is not a useful means of 
assessing whether this action's conservation and management measure, to 
reduce bycatch at low levels of abundance, minimizes such bycatch to 
the extent practicable.
    Comment 55: When NMFS implemented Amendment 111, reductions in 
halibut PSC were also considered, but large reductions were rejected as 
too costly. The Amendment 111 final rule concluded that alternatives 
that would have reduced the halibut PSC limit by 30, 35, 40, 45, or 50 
percent in the Amendment 80 sector would have come at significant 
economic cost to the Amendment 80 sector and fishing communities 
participating in the Amendment 80 fisheries. NMFS proposes to impose 
costs that are 6 to 14 times higher than those deemed acceptable in 
2015 when halibut harvesting opportunities in Area

[[Page 82757]]

4 are 60 percent higher than they were in 2015, and halibut bycatch in 
the Amendment 80 sector is 35 percent lower than it was in 2015. NMFS 
fails to acknowledge and provide rationale to support its arbitrary and 
dramatic reversal in its rationale for imposing such enormously high 
costs on a single fishery.
    Response: The practicability analysis and determination for 
Amendment 111 were particular to the existing time and circumstances at 
issue there. The current analysis was conducted with years of 
additional information after the approval of Amendment 111. As a 
result, NMFS has the benefit of observing and accounting for the 
sector's ability to fish under a 1,745 mt PSC limit following Amendment 
111 and its ability to adopt and expand existing tools for halibut 
avoidance and release to minimize bycatch and bycatch mortality during 
that period. The Amendment 111 analysis explained why NMFS decided 
against further reductions at that time but did not bind future 
decisions using additional and new information. The explanation for the 
determination of practicability concerning Amendment 123 is extensively 
discussed in the Analysis and includes discussion of Amendment 111 and 
its findings (see response to comment 8.3-9 on page 319 of the 
Analysis).
National Standard 10
    Comment 56: NMFS failed to consult with the U.S. Coast Guard and 
industry as required under National Standard 10 to ensure they 
recognize any impact on the safety of human life at sea and minimize or 
mitigate that impact where practicable.
    Response: NMFS disagrees. The National Standard 10 guidelines 
encourage consultation with the U.S. Coast Guard if an action might 
affect safety of human life at sea. This can be done through a Council 
advisory panel, committee, or other review of the FMP amendment or 
regulations. The U.S. Coast Guard has a seat at the Council table and 
was engaged during the Council process for this FMP amendment. 
Throughout the numerous years Amendment 123 and this action were in 
development through the Council process, a substantial amount of public 
input was received from the affected industry sector.

Economic Impacts

    Comment 57: The proposed action will impose certain and substantial 
additional costs ranging from 86 to more than 100 million dollars on 
the Amendment 80 sector while only providing speculative benefits to 
the directed halibut fishery. NMFS has concluded these impacts will 
result in negative net benefits to the Nation.
    Response: NMFS did not conclude that Amendment 123 will result in 
negative net benefits to the Nation. NMFS analyzed the potential costs 
and benefits of the proposed action in Section 5 of the Analysis. The 
quantitative analysis of economic net benefits is limited to purely 
economic impacts and does not account for non-economic or 
unquantifiable impacts. The Council and NMFS weighed the potential for 
the Amendment 80 sector to mitigate negative economic impacts through 
operational choices; weighed the retrospective estimate of revenue 
impacts included in the Analysis; and weighed the non-quantifiable 
conservation, social, and management benefits of the abundance-based 
management of halibut PSC. The Analysis encompassed consideration of 
estimated economic impacts and predicted actual economic impacts and 
potential non-economic impacts of the action. NMFS analyzed the range 
of possible economic costs to the Amendment 80 sector for the range of 
possible PSC limits at different levels of halibut abundance. To the 
extent the Amendment 80 fishery can improve implementation of existing 
halibut avoidance and survival strategies, or find more efficient ways 
to avoid halibut PSC, the expected costs associated with reduced PSC 
limits may be mitigated. As described below, if they cannot be 
mitigated, the Analysis provides a comparison of what those costs would 
have been based on historical catch and bycatch levels. These numbers 
were created to compare costs among the alternatives; they do not try 
to estimate what the actual, future costs of reducing bycatch will be.
    The Analysis used an analytical approach that produced cost 
estimates by hindcasting past results as if the alternatives considered 
had been in effect in previous years and looked at the potential effect 
of the range of PSC limits on Amendment 80 revenues in past years. 
Table ES-1-11 on page 42 (and Table 5-21) of the Analysis illustrates 
the results of the revenue analysis at the range of PSC limits 
analyzed. NMFS acknowledges in the Executive Summary and Section 5 of 
the Analysis that, based on historical catch and bycatch levels, had 
this action been in place in previous years, it could result in an 
average estimated revenue reduction for the Amendment 80 sector of 100 
million dollars or more. However, these revenue estimates do not 
represent stand-alone predictions of future Amendment 80 revenues under 
each PSC limit; rather, the Council and NMFS used these estimates to 
illustrate the potential differences in direction and magnitude of 
impacts among the alternatives considered. The revenue estimates 
included in the Analysis do not capture behavioral adjustments such as 
changes in targeting, fishing location, or other halibut avoidance 
strategies that might have been employed if the various PSC limits were 
in effect during those years, nor do they include the costs associated 
with such avoidance strategies. The impact estimates are ``upper 
bound'' estimates due to the assumption that the Amendment 80 sector 
will utilize their entire PSC limit despite historic evidence that 
shows that they have not. Further, the estimates contained within the 
impact scenarios are not actual impacts, as the response of the 
Amendment 80 sector in applying tools such as halibut deck sorting and 
spatial redeployment of effort to avoid halibut have not been modeled 
and will affect both halibut PSC rates and attainment of TAC, albeit 
with potentially reduced efficiency and increased costs of production 
leading to negative impacts on producer surplus.
    Additionally, the revenue estimates reported in the analysis do not 
represent the full scope of the economic impacts associated with the 
proposed action alternatives (see Section 5.6 of the Analysis). The 
economic impact estimates represent the upper bound of potential lost 
harvest opportunity for the Amendment 80 sector as compared to status 
quo revenue (Table 5-6 of the Analysis). The economic net benefits 
assessment must also be considered within the greater context of all 
relevant factors, including distributional impacts, human dignity, and 
equity. The Analysis states that the overall economic net benefits are 
expected to be negative during future conditions of low halibut 
abundance. However, there are instances when there are zero impacts 
estimated on Amendment 80 sector revenue such as when halibut abundance 
is relatively high.
    The Council was clear that the economic impacts of the alternatives 
should be compared across alternatives and within the Amendment 80 
sector and not used to compare the economic costs to the non-quantified 
benefits to the directed halibut fishery. This approach is a cost 
effectiveness analysis, which is an economic tool that compares 
alternatives to determine which can achieve a desired result at the 
lowest cost. In the Analysis prepared for this action, the impacts are 
compared to each other for their relative effect of reducing halibut 
mortality

[[Page 82758]]

versus their relative scale of the potential effects on annual revenue 
of the Amendment 80 sector.
    Analysis of the economic net benefits does not imply that the 
social, cultural, or environmental impacts and benefits discussed in 
the Analysis are not relevant, nor that they can be excluded when 
considering overall costs and benefits. To the contrary, the Analysis, 
particularly Section 5 of the Analysis, contains extensive discussion 
of both economic impacts and impacts that cannot be assessed 
monetarily, such as social and cultural impacts.
    Benefits to the directed fishery are supported by conservation of 
the halibut resource. To the extent halibut PSC can be reduced, the 
conserved biomass may be included in the directed fishery catch limit, 
as the IPHC has done since 2017 under its spawner per recruit-based 
strategy. To the extent such biomass is not harvested by the directed 
fishery, it is expected to accrue to the stock, resulting in a long-
term potential increase in the amount of halibut available to the 
directed fishery.
    Comment 58: The proposed action will negatively impact the 
Amendment 80 sector, crew members, and numerous types of support 
service businesses. Members of the Amendment 80 sector, a CDQ group, as 
well as numerous companies that support the Amendment 80 sector, 
provided specific information about the direct negative financial 
impacts to the Amendment 80 sector and Dutch Harbor tax revenue, as 
well as a comparison of the benefits to halibut crew members and losses 
to Amendment 80 crew members. Commenters expect the action to result in 
lost harvesting opportunity for the Amendment 80 sector and increased 
costs due to bycatch avoidance, longer tows, and processing time that 
will reduce profits and limit the Amendment 80 sector in its ability to 
replace or make technological upgrades to their vessels as they have in 
recent years. As a result, numerous support businesses expect a 
reduction in the demand for their services, such as welding, electronic 
support, stevedoring, fuel, packaging supplies, general supplies, and/
or other support services.
    The proposed action will have substantial adverse impacts on the 
Amendment 80 sector crew, the majority of whom are minorities and 
people of color. As indicated in the Analysis, Amendment 80 companies 
that cannot remain viable under this action will eventually exit the 
fishery. Amendment 80 vessels provide middle class and blue collar 
American men and women career-path jobs, and the painful impacts of 
contraction of the sector will be borne by these hard-working American 
fishermen and their families.
    Response: NMFS analyzed the impacts of this action, the community 
and regional participation patterns in the Amendment 80 fishery and the 
BSAI halibut commercial fishery, and the potential community level 
impacts of this action in Section 5 and Appendix 1 of the Analysis. The 
Analysis included a qualitative analysis of potential downstream 
economic impacts and a quantitative analysis of potential revenue 
impacts to the Amendment 80 sector. The analytical approach used to 
evaluate the impacts to the Amendment 80 sector is described in Section 
5.3.1 of the Analysis. The Analysis notes there may be an impact to the 
Amendment 80 sector if they cannot reduce their halibut bycatch, but 
the exact financial amount could not be determined as Amendment 80 
companies did not share their financial data for a detailed analysis.
    In any event, the revenue impacts are only one portion of the 
analysis that the Council considered in selecting the preferred 
alternative. The Council considered the impacts of alternative ranges 
of halibut PSC limit reductions on: (1) the halibut stock, (2) directed 
halibut fishery participants and communities that are engaged in 
directed halibut fisheries in the BSAI and in other Areas, and (3) BSAI 
groundfish fishery participants and communities that are engaged in the 
BSAI groundfish fisheries. In particular, Section 5.5 on Social and 
Environmental Justice summarizes results of Appendix 1, the SIA, which 
evaluates community and regional participation patterns in Amendment 80 
fishery (including minority population demographics) and the Area 4 
halibut commercial fishery as well as potential community level impacts 
from the alternatives. The Council considered the detailed information 
provided in the analysis for the proposed action.
    The costs associated with avoiding halibut are discussed 
quantitatively and qualitatively throughout the document, particularly 
in Section 5.3.2.3 of the Analysis, where it is stated that all of the 
measures that could be implemented to reduce halibut mortality would 
have a cost to the fleet and the increased costs limit how those tools 
can be implemented while keeping the fleet economically viable. The 
gross or net cost directly associated with reducing halibut mortality 
is not estimated in the analysis.
    The Analysis did not incorporate generally understood but poorly 
quantified economic multipliers that would allow for an estimate of the 
total economic contributions of the Amendment 80 fishery or the 
directed halibut fishery in terms of output, income, employment or 
other economic measures. The broad, downstream economic impacts of 
commercial fishing can be understood and appreciated without drawing an 
equivalency between metrics or existing studies that have fundamentally 
different scopes.
    Comment 59: In the Analysis, NMFS used different methods to 
generate the revenue estimates for the Amendment 80 sector and the 
directed halibut fishery sector. Revenues are estimated separately 
using different methodologies and are meant to compare impacts across 
alternatives within each sector and should not be used to compare 
impacts across sectors. By using different methods, NMFS has made it 
impossible to measure benefits of this action or compare the impacts 
across sectors.
    Response: NMFS explains the revenue estimation methodology in 
Section 5.3.1 of the Analysis and why it is the best available data. 
The methodology used to estimate revenue impacts was reviewed on 
several occasions by the Council's SSC, and the SSC concurred with the 
methodology used in the Analysis, as noted in the SSC Minutes from May 
2021 (see ADDRESSES). The SSC concurred with the assessment of the 
inappropriateness of comparing revenue impacts across the two sectors 
and recommended that estimated revenue impacts be used only for 
comparing across alternatives for a given sector and not for comparing 
impacts across sectors. The SSC was concerned that, in its current 
form, reporting revenue estimates for each fleet would invite readers 
to make inaccurate comparisons across fleets and suggested the analysts 
consider whether it may be better to provide no estimate than a 
misleading one. In comparing the alternatives, it is not necessary to 
be able to directly compare the revenue impacts between the two fleets; 
it is merely necessary to compare the relative impacts of each 
alternative on each affected fleet.
    Comment 60: NMFS should have used the most complete available 
dataset that included the years 2010 through 2021 for estimating impact 
revenues to the Amendment 80 sector. This wider range of years better 
reflects environmental and operational conditions than the dataset used 
by NMFS. Using the dataset that narrowly includes 2016 through 2019 
does not consider the effects of annual variation and events that 
significantly influenced the proportion of the halibut PSC limit used 
in 2016 and 2017. These events include the 45 percent reduction in 
flatfish

[[Page 82759]]

harvested in 2016 than in the previous 4 years by the Alaska Groundfish 
Cooperative and the limited fishing by three Fishing Company of Alaska 
vessels in the first quarter of 2017.
    Response: As discussed in the Analysis in Section 5.3.2.2, NMFS did 
not rely on a single dataset; rather, the analysis includes a number of 
different datasets and potential outcomes, as well as their likelihood 
of accurately representing future outcomes. After extensive input from 
the public, the affected industry, and the Council's SSC, NMFS 
concluded that the 2016 through 2019 dataset is likely the best 
predictor of potential revenue impacts for the reasons stated in the 
Analysis. Data from years prior to Amendment 111's implementation (that 
is, prior to 2016) have higher PSC limits and less PSC avoidance 
behavior, meaning the 2016 through 2019 period is likely to be more 
reliable in predicting future results under lower PSC limits and more 
PSC avoidance behavior. As described in Section 5.3.2.2.3 of the 
Analysis, NMFS recognizes that the analytical approach used to quantify 
potential revenue impacts to the Amendment 80 sector is only 
representative of the time period analyzed and it does not incorporate 
fishing adaptations or behavioral changes that may occur in the future 
since those are too speculative to predict. Additionally, the 2016 
through 2019 dataset was not considered in isolation.
    Comment 61: The resampling approach used in the Analysis to 
estimate revenue impacts to the Amendment 80 sector assumes 100 percent 
of the Amendment 80 sector's halibut PSC limit is used each year. In 
reality, however, the Amendment 80 sector does not use 100 percent of 
its halibut PSC limit and has not done so for the last 10 years. The 
result of this evaluation of economic impacts grossly overstates the 
likely effects on Amendment 80 sector revenues, and even lower PSC 
limits in times of low halibut abundance (as considered under 
Alternative 4 in the Analysis) are viable and appropriate.
    Response: As explained in Section 5.3 of the Analysis, NMFS agrees 
that the economic impact estimates represent the upper bound of 
potentially forgone catch and revenue impact as compared to status quo 
revenue because this action will reduce halibut PSC at times of low 
halibut abundance. The Council and NMFS concluded that the results are 
most easily understood by showing 100 percent use to illustrate maximum 
adverse impact. Section 5.3.2.1 of the Analysis provides a detailed 
discussion on the assumptions and evaluation on the assumption that 100 
percent of the PSC limit would be used. Forecasting fleet behavior 
under a constraining PSC limit is a challenge in analyses considering 
alternative PSC limits; thus, in this case, the Analysis includes an 
estimate of the maximum adverse impact.
    The revenue estimates reported in Section 5.3.2 of the Analysis 
compare the estimates of different alternatives under the same 
scenarios to inform the reader of the relative difference in direction 
and magnitude of the alternatives. As stated in the Analysis, these 
results are not stand-alone predictions of future Amendment 80 revenues 
under each PSC limit established by this action. A limitation of this 
analytical approach is that estimates reflect only the environmental 
conditions and fishing behavior that occurred during the past 10 years. 
The Amendment 80 sector is expected to make strategic choices in 
harvesting behavior (i.e., prevalence of halibut avoidance strategies 
such as deck sorting) that are different from the randomized or 
stratified random selection of hauls used in the Analysis.
    Given reductions in PSC limits and expected operational changes 
such as increased deck sorting, it is most likely that future PSC use 
will be similar to what has been seen in the years since 2015 (i.e., 
estimates using 2016 through 2019 or 2017 through 2018 data are most 
likely to represent future PSC use). Revenue data for 2020 and beyond 
were not available when the Analysis first analyzed revenue impacts. 
NMFS did not subsequently include revenue data for 2021 because 
Amendment 80 sector operations, along with other fisheries in Alaska, 
were negatively affected by COVID-19 mitigation measures and pandemic-
related upheavals in international supply chains and markets.
    Comment 62: The Analysis provides only a cursory consideration of 
the potential impact of the proposed action on cooperative dynamics and 
misstates the potential viability of the Amendment 80 limited access 
fishery. The proposed action will effectively eliminate the Amendment 
80 limited access fishery as a viable management option.
    Response: The Amendment 80 proposed rule (72 FR 30052, May 30, 
2007) states that the Council recommended the Amendment 80 Program 
specifically to discourage fishing practices that accelerate the race 
for fish in the Amendment 80 limited access fishery, and requiring a QS 
holder to fully commit to a cooperative would provide additional 
incentives to achieve the Amendment 80 Program's objectives. The 
Amendment 80 Program was implemented in 2008. Since 2010 there has been 
no participation in the Amendment 80 limited access fishery and the 
regulations implementing the Amendment 80 limited access fishery remain 
unchanged by this final rule. The amount of Amendment 80 halibut PSC 
assigned to the Amendment 80 limited access fishery will continue to be 
determined as specified in regulations at Sec.  679.91(d)(3).
    Comment 63: This action will benefit Alaska communities because the 
directed halibut fishery is largely prosecuted by community-based 
vessels supporting Alaska-based families and businesses, many times 
with few income-producing alternatives. By contrast, the Amendment 80 
sector is composed of large Seattle-based factory trawlers doing nearly 
all of their rigging, supplying, and support services in the state of 
Washington, leaving a minimum of monetary exchange onshore in Alaska. 
The high level of Alaskan ownership of the directed halibut fleets 
means that most halibut fishing revenues and earnings are spent locally 
on goods and services generating benefits for local economies.
    Response: NMFS acknowledges the support for this action. See the 
responses to comments under the ``Economic impacts'' and ``Directed 
Halibut Fishery'' headings for additional discussion of the expected 
impacts of this action on the Amendment 80 sector and the directed 
halibut fishery, as well as the responses under the ``National Standard 
4'' heading for a discussion of state residency.

NEPA

    Comment 64: The Analysis fails to utilize a wealth of available and 
highly relevant scientific information on how climate change in the 
Bering Sea will affect the Amendment 80 sector's ability to catch its 
target species under the lower PSC levels of the proposed action.
    Response: NMFS is aware of the rapid ecosystem changes in the 
Bering Sea ecosystem and the impacts this has had, and will continue to 
have, on the spatial extent of the Amendment 80 fishery. Section 
5.3.2.3.2 of the Analysis provides a summary of the potential impact of 
warming Bering Sea waters on flatfish CPUE as targeted by the Amendment 
80 sector and resultant halibut PSC. This summary notes that there is 
considerable variation in halibut mortality rates by week, and the 
greater use of deck sorting to reduce mortality in years when halibut 
could not be avoided makes drawing conclusions difficult. The Analysis 
also includes a

[[Page 82760]]

section (Section 6.4) on the status of the ecosystem, and the Ecosystem 
Status Report is incorporated by reference into the Analysis. Climate 
change uncertainties can be inferred from different time frames used in 
the analysis and the discussion of uncertainties in halibut population 
dynamics. See Section 8.4.3 on page 381 of the Analysis Comments on 
Climate change/Greenhouse gas emissions for additional information. 
NMFS acknowledges that changes in the distribution and abundance of 
fish stocks due to climate change may affect all sectors of the fishing 
industry to varying degrees going forward, and we do not expect the 
lower halibut PSC limits due to this action will measurably increase 
those effects for the Amendment 80 sector.
    Comment 65: NMFS should have written a supplemental EIS, as there 
is ample, significant new information that indisputably bears on the 
proposed action and its impacts, requiring supplementation of the 
Analysis. Such information includes relevant Amendment 80 sector and 
halibut fishery data for the years 2020, 2021, and 2022 and 
consideration of the implications of recent red king crab biomass 
changes on the fleet's ability to avoid halibut. The Analysis should 
have evaluated whether a reduced red king crab PSC limit will influence 
halibut bycatch rates.
    Response: NEPA implementing regulations at 40 CFR 1502.9(d) 
instruct agencies to prepare supplements to either draft or final 
environmental impact statements if: (1) the agency makes substantial 
changes to the proposed action that are relevant to environmental 
concerns; or (2) there are significant new circumstances or information 
relevant to environmental concerns and bearing on the proposed action 
or its impacts.
    Not every change requires a supplemental EIS; only those changes 
that cause significantly different effects from those already studied 
require supplementary consideration. The Supreme Court directs that 
``an agency need not supplement an EIS every time new information comes 
to light after the EIS is finalized. To require otherwise would render 
agency decision-making intractable.'' Marsh v. Oregon Nat. Res. 
Council, 490 U.S. 360, 373 (1989). On the other hand, if a major 
Federal action remains to occur, and if new information indicates that 
the remaining action will affect the quality of the human environment 
in a significant manner or to a significant extent not already 
considered, a supplemental EIS must be prepared. Ultimately, an agency 
is required ``to take a `hard look' at the new information to assess 
whether supplementation might be necessary.'' Norton v. S. Utah 
Wilderness All., 542 U.S. 55, 72-73 (2004).
    NEPA implementing regulations at 40 CFR 1502.9(d)(4) stipulate that 
an agency may find that new circumstances or information relevant to 
environmental concerns are not significant and therefore do not require 
a supplement to an EIS.
    NMFS issued its Analysis in December 2022; some of the information 
the commenter references was not available to NMFS during the 
development of the Analysis. NMFS considered relevant fishery data for 
the Amendment 80 sector and directed halibut fishery in approving 
Amendment 123 and developing this final rule. Based on this public 
comment, NMFS assessed the information from the years 2020, 2021, and 
2022 that were not available prior to the publication of the Analysis 
on December 9, 2022. NMFS concluded that this new information is not of 
a scale nor scope that requires NMFS to supplement the EIS. The new 
information does not indicate that the action will affect the quality 
of the human environment in a significant manner or to a significant 
extent not already considered in the Analysis. Therefore, a 
supplemental EIS is not necessary.
    Comment 66: The purpose and need statement is unlawfully narrow and 
forecloses the consideration of viable alternatives. By narrowing the 
purpose in this fashion, the Analysis forecloses the consideration of 
other types of bycatch reduction that, if needed, may be more rational, 
as well as forecloses consideration of revised or new halibut bycatch 
limits for any other fisheries or sectors or by any U.S. West Coast 
fisheries (that also have halibut bycatch).
    Response: NMFS disagrees that the purpose and need statement is too 
narrow, thereby foreclosing the consideration of reasonable 
alternatives. In the Analysis, NMFS considered and analyzed five 
alternatives, including three options. Throughout the lengthy public 
Council and NEPA processes (described in Section 1.3 of the Analysis), 
many other ideas were considered and eliminated. Specific alternatives 
that were considered but not carried forward are noted in the Analysis 
in Section 2.8, including the reasons they were not further analyzed. 
The commenter did not offer other alternatives to the proposed action, 
and alternatives considering halibut PSC limits for other fisheries are 
outside the scope of this action but, as noted above in response to 
Comment 16, separate actions have been taken to address halibut PSC in 
some other fisheries.
    The purpose and need statement was crafted after substantial 
consideration by the Council and NMFS. It is reasonably tailored to 
meet the identified conservation needs, while balancing other equities. 
Agencies have considerable discretion in defining the purpose and need 
for their proposed actions, provided that they are reasonable. A 
purpose and need statement is unreasonable if the agency defines it so 
narrowly as to allow only one alternative from among the 
environmentally benign options in the agency's authority, such that the 
Analysis becomes essentially a formality. A purpose and need statement 
can also be unreasonable if the agency draws it so broadly that an 
unreasonably large number of alternatives would accomplish it, and the 
project would collapse under the weight of the possibilities. The 
agency must strike a balance between the two, as NMFS has done here.
    Comment 67: Although the purpose and need statement erroneously 
says that the proposed action ``could also promote conservation of the 
halibut stock,'' NMFS's findings elsewhere in the Analysis foreclose 
that possibility altogether.
    Response: NMFS disagrees that its findings in the Analysis 
foreclose the possibility of conservation of the halibut stock. This 
action promotes conservation of the stock by reducing the Amendment 80 
sector's halibut PSC limit in the Bering Sea under conditions of lower 
halibut abundance, and that conclusion is supported in the proposed 
rule and the Analysis. Although the IPHC is responsible for the 
management of the coastwide halibut stock, NMFS implements regulations 
that apply to the harvest of halibut including establishing halibut PSC 
limits in NMFS-managed groundfish fisheries under the Magnuson-Stevens 
Act in the BSAI FMP and Federal regulations. It is appropriate to use 
the Magnuson-Stevens Act definition for ``conservation and 
management,'' at section 1802(5) to consider whether the reduction of 
PSC promotes conservation of a fishery resource, such as the halibut 
stock. That definition does not define conservation separately and 
notes that the term ``conservation and management'' refers to all of 
the rules, regulations, conditions, methods, and other measures: (1) 
which are required to rebuild, restore, or maintain, and which are 
useful in rebuilding, restoring, or maintaining, any fishery resource 
and

[[Page 82761]]

the marine environment; and (2) which are designed to assure that a 
supply of food and other products may be taken and that recreational 
benefits may be obtained, on a continuing basis, are irreversible or 
long-term adverse effects on fishery resources and the marine 
environment are avoided, and that there will be a multiplicity of 
options available with respect to future uses of these resources. The 
Magnuson-Stevens Act does not assume that conservation means keeping a 
managed resource in an unfished state, since its conservation and 
management requirements are focused, in simple terms, on maintaining 
the resources for the benefit of the Nation through achieving optimum 
yield, while preventing overfishing and minimizing bycatch.
    Where the annual Amendment 80 sector halibut PSC limit is reduced 
under conditions of lower halibut abundance, the overall halibut 
bycatch is reduced. This bycatch reduction measure helps maintain the 
fully-utilized halibut fishery resource and the marine environment and 
is designed to ensure that, on a continuing basis, a supply of food and 
other products may be taken and recreational benefits may be obtained. 
Further, the reduction of Amendment 80 halibut PSC limit at lower 
halibut abundance levels helps ensure that irreversible or long-term 
adverse effects on the halibut fishery resources and the marine 
environment are avoided and that there will be a multiplicity of 
options available with respect to future uses of these resources. As 
noted in the proposed rule, halibut PSC limits in the groundfish 
fisheries overall provide a constraint on halibut PSC mortality and 
promote conservation of the halibut resource.
    Because the annual catch limit for the directed halibut fishery is 
established by the IPHC, it is uncertain whether the result of this 
action will benefit the long-term status of stock itself or directly 
benefit the directed halibut fishery. That result will mostly depend on 
actions of the IPHC. Due to historical IPHC practices, NMFS expects 
that the IPHC may establish higher catch limits for the directed 
halibut fleet to the degree that this action results in conserved 
halibut. This expectation is merely a prediction of likely impacts of 
this action, and the action does not depend on that result. To the 
extent that this action results in an overall reduction in halibut 
mortality in the BSAI management area, NMFS expects this to benefit the 
halibut stock.
    Comment 68: The Analysis does not consider a reasonable range of 
alternatives. The Council and NMFS unreasonably and unlawfully rejected 
reasonable alternatives, including those that would cause far less 
harm. NMFS unlawfully failed to consider other reasonable alternatives, 
such as (1) other mechanisms for reducing halibut bycatch and (2) other 
fisheries and sectors that have significant halibut bycatch. The public 
should have been given an opportunity to, at the very minimum, review 
and consider at least one alternative that would have addressed halibut 
bycatch in a broader array of sectors and fisheries.
    Response: The Council and NMFS considered a wide range of 
alternatives during the development of Amendment 123. NEPA does not 
require an agency to explicitly consider every possible alternative to 
a proposed action. Under NEPA, NMFS can eliminate alternatives to FMP 
amendments prior to conducting a comprehensive review of such 
alternatives, as long as rationale is provided for its decision.
    In the Analysis, five alternatives and three options were analyzed 
to meet the purpose and need, and many other alternatives were 
considered but eliminated from further analysis through the extensive 
period of development for Amendment 123 (see Section 2 of the 
Analysis). These alternatives were developed over numerous years with 
extensive input from the public through Council process. The Council 
and NMFS at one time considered including other fishery sectors but 
chose to focus on the Amendment 80 sector for this action. Section 1.3 
of the Analysis explains the rationale for why this action is limited 
to the Amendment 80 sector. In short, the Amendment 80 sector comprises 
the majority of the annual halibut PSC mortality in the BSAI groundfish 
fisheries.
    Comment 69: The Analysis fails to address incomplete or unavailable 
information under 40 CFR 1502.22. For example, the Analysis fails to 
consider fishery data for 2020, 2021, and 2022, and when evaluating 
environmental justice impacts, NMFS stated that no recent information 
from secondary sources on sector-wide catcher/processor crew 
demographics is readily available. The Analysis does not address the 
incomplete or unavailable information giving rise to these recognized 
uncertainties. NMFS acknowledges that other categories of information 
are unavailable but fails to perform analysis for them as required.
    Response: NMFS noted in the Analysis where there was incomplete, 
unavailable, and uncertain information to inform the effects analysis. 
NEPA requires that the EIS contain high-quality information and 
accurate scientific analysis, and, if there is incomplete or 
unavailable relevant data, the EIS discloses that fact.
    The regulation cited by the commenter (40 CFR 1502.22) requires 
that when an agency is evaluating reasonably foreseeable significant 
adverse effects on the human environment in an EIS, and there is 
incomplete or unavailable information, the agency must make clear that 
such information is lacking. If the unavailable information is 
essential to the analysis and can be obtained without unreasonable 
effort or cost, the agency should obtain it; if such information is 
essential and the agency cannot obtain it, the agency needs to state 
the information is unavailable, whether its relevant, and give a 
summary of the existing information and state the agency's evaluation 
of the current information based upon approaches or research methods 
generally accepted in the scientific community.
    The Analysis meets all requirements of NEPA and its implementing 
regulations. Throughout the analyses, NMFS clearly discloses where 
information is lacking, unavailable, or incomplete. If such information 
could not be obtained, NMFS explains the approach taken in the Analysis 
using the information available to the agency. No extra analysis is 
required.
    Comment 70: The Analysis's cursory treatment of cumulative effects 
is insufficient and unlawful by including only those involving halibut, 
while ignoring other cumulative effects that may affect the Amendment 
80 sector. The Analysis has not but should have considered additional 
impacts to fishing communities and the Amendment 80 sector due to: (1) 
an increasing likelihood that the Area 4 catch limits will not be fully 
harvested; (2) increased challenges in maintaining halibut fishery 
processing operations throughout Area 4 that have historically relied 
on offsetting costs with crab processing; (3) changes in distribution 
of Area 4 halibut deliveries; (4) additional crab bycatch management 
measures; (5) potential establishment of National Marine Sanctuaries 
near the Pribilof Islands; (6) climate change; (7) future IPHC actions; 
and (8) other factors including inflation, tariffs, and the market and 
supply disruptions due to the war in Ukraine.
    Response: As explained in response to Comment 65, NEPA requires 
agencies to consider and give a hard look at the cumulative impacts of 
proposed actions. NMFS did so in Section 5.8 of the Analysis (see 
ADDRESSES). Cumulative impacts are effects on the environment that 
result from the incremental impact

[[Page 82762]]

of the action when added to other past, present, and reasonably 
foreseeable future actions. Some of the actions cited by commenters 
occurred so close in time to the Analysis (e.g., inflation and other 
market disruptions), were still under consideration and development by 
the Council and/or NMFS (e.g., crab bycatch measures), or occurred 
after publication of the Analysis (e.g., potential establishment of a 
National Marine Sanctuary and future IPHC actions) that they could not 
reasonably be considered and were therefore not ``reasonably 
foreseeable.'' As noted above, NMFS considered whether some of these 
new circumstances warranted supplementing the EIS and concluded they do 
not.
    Other actions and accompanying analyses (such as directed halibut 
fishery catch) commenters cite were incorporated by reference either 
from other analyses or from other sections of the Analysis. In 
particular, the IPHC's setting of directed fishery catch limits is 
noted as a reasonably foreseeable future action in this analysis, but 
in conjunction with other direct impacts of this action, is not 
considered to be cumulatively significant.
    Some of the actions commenters cite are so uncertain or in such 
early stages of development that the impacts cannot be considered 
``reasonably foreseeable'' and/or there is not enough information for a 
meaningful analysis. For further discussion on Climate change, 
considerations are addressed in the responses to Comments 26 and 64.
    Comment 71: In violation of NEPA, NMFS failed to consider the 
additional economic impact from increased cost recovery fee percentages 
as a result of reduced harvest opportunity expected under this action. 
Specifically, the Analysis acknowledged that the Amendment 80 sector is 
subject to cost recovery fees as a portion of its ex-vessel revenue for 
costs directly related to the management of the fishery. However, 
because the proposed action would significantly reduce the amount of 
harvests in the fishery and the expected value to the fishery, 
Amendment 80 sector participants would expect to pay considerably 
higher percentage of their ex-vessel revenue to meet their required 
cost recovery payments. This is not analyzed in the Analysis, but 
effects on cost recovery fees are recognized in the proposed rule.
    Response: In Section 5.9.1 of the Analysis, NMFS discussed and 
considered the Amendment 80 cost recovery fee program. NMFS implemented 
the Amendment 80 cost recovery fee program on February 4, 2016 (81 FR 
150, January 5, 2016). The Magnuson-Stevens Act section 304(d) limits 
total cost recovery fees to three percent of the ex-vessel value for a 
fishery, which is consistent with the maximum fee percentage as 
implemented in regulations applicable to the Amendment 80 fee program 
at Sec.  679.95 that remain unchanged by this action. Additionally, 
Section 3.3.2 of the Analysis discusses cost recovery in several places 
and provides fee information from fiscal year 2017 through fiscal year 
2020.
    Comment 72: NMFS violated NEPA and the Administrative Procedure Act 
(APA) by arbitrarily modifying the following true statement that was 
included in the draft Analysis to imply an opposite conclusion, without 
any factual support or rational explanation:

    Because of the efforts and expenditures already undertaken by 
the sector, dramatic increases in halibut avoidance or reductions in 
mortality are not expected with the tools that are currently 
available to the fleet. Some marginal improvements are anticipated 
to continue to be realized, especially if halibut limits are further 
reduced and the fleet forgoes some profitability to reduce halibut 
mortality further. Reductions in halibut mortality are expected to 
result from the [Amendment 80] sector increasing costs or reducing 
efficiency.

    Response: The statements made in the draft Analysis and the 
Analysis prepared for this action are not significantly different. NMFS 
modified and clarified the language from the draft Analysis text 
referenced by the commenter in the Analysis in response to public 
comments. The Analysis adds that reductions in halibut mortality in the 
Amendment 80 sector could also come from ``. . . improving the use of 
existing tools.'' As required by NEPA, changes from the draft to final 
Analysis are documented and can be located in Section 8.8 on page 392 
of the Analysis. While a number of substantive changes are detailed, 
Analysis Section 8.8 notes that edits were made throughout the document 
for clarification, in response to public comments, or both, and not all 
of them were expressly identified in Section 8.8. NMFS does not 
consider the change to imply an opposite conclusion from the draft text 
and does not therefore consider it a substantive change to the 
document. The clarified text found in the Analysis Section 5.3.2.5 
states the following:

    Efforts already undertaken by the sector have shown that 
increases in halibut avoidance or reductions in mortality are 
possible with the tools that are currently available to the fleet. 
Additional improvements are anticipated to continue to be realized, 
especially if halibut limits are further reduced and the fleet 
forgoes some amount of profitability to reduce halibut mortality 
further. Reductions in halibut mortality that are realized are 
expected to result from the sector increasing costs or reducing 
efficiency. The amount of mortality reductions cannot be quantified 
with any certainty. If substantial reductions in halibut mortality 
are realized, they are likely to be derived from the development and 
implementation of new technologies.

Directed Halibut Fishery

    Comment 73: There is no FMP for the management of halibut.
    Response: True, there is no FMP for halibut because the halibut 
stock is managed by the IPHC under the Convention. The Council and NMFS 
have the authority to develop and implement regulations under the 
Halibut Act, including limited access regulations that are in addition 
to, and not in conflict with, IPHC regulations. The Council and NMFS 
manage groundfish fisheries under FMPs pursuant to the Magnuson-Stevens 
Act. Section 1.1 of the Analysis discusses how the IPHC and NMFS manage 
halibut.
    Comment 74: There is no rational basis for NMFS's continuing 
prohibition on the Amendment 80 sector's ability to retain and sell the 
halibut it catches below the PSC limits.
    Response: Removing halibut from the list of prohibited species or 
changing the provisions regarding the prohibition on retention would 
involve a departure from longstanding policy and is beyond the scope of 
this action. Section 1.1 of the Analysis discusses how the IPHC and 
NMFS manage halibut. This section discusses prohibition on the 
retention of a category of species that are valuable to other users and 
fully utilized by them, known as ``prohibited species.'' That category 
includes salmon, herring, crab, and halibut. Through the FMP process 
and regulation, NMFS and the Council have determined that the capture 
of species in this category must be avoided, and they prohibit their 
retention except when authorized by other law.
    Comment 75: The halibut stock is considered to be stable and not 
subject to overfishing or overfished by the IPHC, even though those 
terms are not applicable to halibut because it is not managed under the 
Magnuson-Stevens Act or an FMP. The halibut stock declined in the 1990s 
to approximately 2012. After 2012, the stock's spawning biomass 
stabilized around 100,000 mt and has remained stable since 2012.
    Response: NMFS acknowledges this comment. The halibut spawning 
stock biomass has remained stable since 2012 at a historically low 
level.
    Comment 76: The proposed action will not result in any identifiable

[[Page 82763]]

economic, social, or cultural benefits to the directed halibut fishery.
    Response: The relationship between this action's PSC limit 
reductions and benefits to the directed halibut fishery is complex and 
depends on a number of factors, as discussed in Section 5.4 of the 
Analysis. NMFS expects that there may be benefits to the directed 
fishery resulting from reduced halibut PSC by the Amendment 80 sector. 
NMFS considered benefits to other communities and users. Benefits from 
conserved halibut are likely to be indirect instead of direct, due to 
the limited scope of the action, and because the IPHC annually 
establishes halibut catch limits applicable to each regulatory area. 
Impacts to communities, including social and cultural impacts, as well 
as impacts to Alaska Native and subsistence users, are considered in 
Section 5.5.2.1.5 of the Analysis.
    Comment 77: Halibut is not fully utilized in the BSAI. The fact 
that utilization rates (percent harvested) in the Area 4 halibut 
fishery are at a record low of 66 percent is not addressed or analyzed 
by NMFS.
    Response: The total allowable catch for halibut is completely 
assigned to user groups; thus, it is considered fully utilized. Halibut 
is targeted by commercial, recreational, charter, and subsistence 
users. The IPHC allocates halibut to achieve Total Constant 
Exploitation Yield or TCEY. Halibut is thus fully utilized even though 
a portion of the commercial harvest allocation may not be fully 
harvested every year. A portion of the distributed TCEY within Area 4 
goes unharvested each year for a number of reasons. The exact amount of 
unharvested quota varies from year to year, area to area, and depending 
upon how data is aggregated. The IPHC compiles harvest figures annually 
in the Fisheries Data Overview presented at the Annual Meeting at the 
end of January. The following portion of the total catch limits were 
harvested in 2022 by Area: 4CDE (Bering Sea) = 91 percent; 4B (Central 
& Western Aleutians) = 49 percent; and 4A (Eastern Aleutians) = 80 
percent.
    The largest proportion of halibut that remained unharvested in Area 
4 is in Area 4B, and there is a smaller amount of quota remaining 
unharvested in Area 4A. These areas represent remote sections of the 
Western Aleutian Islands. Fishing in Area 4B is usually inconsistent, 
resulting in directed fishing vessels spending a higher amount on fuel 
not only to find halibut but to reach the fishing grounds. Further, 
there is very little to no infrastructure out in the Western Aleutian 
Islands to support a directed halibut fishing fleet resulting in 
vessels having to return to Dutch Harbor to sell fish and resupply.
    Comment 78: Halibut is culturally, socially, and economically 
important to Alaska residents, a value that cannot be captured 
monetarily. The proposed action can help coastal communities and 
fishermen secure other directed fishing opportunities and be more 
diversified, a critical step as U.S. fisheries face growing climate 
impacts and uncertainty. The small-boat halibut fishery is the cultural 
and economic lifeblood of Saint Paul, Alaska. It is a critical source 
of employment (both direct and indirect). It is also an important and 
historically significant subsistence fishery that is key to Saint Paul 
Island's cultural heritage and well-being. Saint Paul identifies with 
this ancient resource: the halibut harvest--and sharing the bounty with 
the community--is an irreplaceable cultural touchstone. An abundance-
based PSC limit more fairly distributes conservation limits so as not 
to jeopardize coastal community participants in the directed halibut 
fishery in the BSAI area.
    Response: NMFS acknowledges this comment.
    Comment 79: In 2015, the commercial IFQ and CDQ catch limits in 
Area 4 were 3.815 million net pounds. In 2022, the commercial IFQ and 
CDQ catch limits in Area 4 were 5.1 million net pounds. This improved 
harvest opportunity is nearly four times greater than the harvest 
opportunities envisioned under Amendment 111 even though the overall 
abundance of halibut on a coastwide basis has not changed substantially 
since 2015.
    Response: This action is expected to minimize halibut mortality, 
and it may result in additional harvest opportunities for subsistence 
and recreational fishermen, and commercial halibut fishermen in Area 4. 
This action does not modify allocations of halibut under the IFQ 
Program or the CDQ Program. Since 2015, the amount of halibut harvested 
in Area 4 has remained fairly constant; however, the IPHC survey 
indices (i.e., the estimated all-sizes WPUE time series) for Area 4 
have shown a downward trend. While it may be true that there is an 
increase in the Area 4 halibut catch limits from 2015 to 2022, these 
data points are the low and high points in the time series, and this 
comparison fails to examine the yearly harvest across this time series, 
which varies drastically. As with catch limits, there is also a lot of 
variation within the amount of halibut harvested; however, 2022 saw the 
lowest harvest from 2015 to 2022 in Area 4 with only 3.37 million net 
pounds harvested, well below the average TCEY for this time period of 
3.71 million net pounds.
    Comment 80: Canadian halibut catch limits are too high. NMFS should 
stop giving Canada too many fish.
    Response: Halibut catch limits apportioned to Canada are determined 
by the IPHC and are outside the scope of this action.
    Comment 81: Amendment 123 will benefit halibut users in IPHC Area 
2A because reducing bycatch of small halibut in the Bering Sea will 
benefit the halibut stock and support migration into IPHC Area 2A.
    Response: NMFS acknowledges support for this action. Expected 
benefits to the halibut stock are addressed in response to Comment 67.

Regulatory Process

    Comment 82: It is unclear which agency official has been delegated 
authority to approve the Proposed Action. The proposed rule is signed 
by Samuel Rauch (Deputy Assistant Administrator for Regulations, NMFS). 
The NOA for proposed Amendment 123 is signed by Kelly Denit, Director, 
Office of Sustainable Fisheries, NMFS. The comment extension deadline 
for the NOA is signed by Jennifer M. Wallace, Acting Director, Office 
of Sustainable Fisheries, NMFS. The Analysis ``Dear Reviewer Letter'' 
is signed by Jon Kurland, Regional Administrator.
    Response: Two delegations of authority are relevant: (1) Department 
of Commerce Directive (DOO 10-15) delegates the functions prescribed in 
the Magnuson-Stevens Act from the Secretary of Commerce to the NOAA 
Administrator, and (2) NOAA delegation 61 (NOAA's Organizational 
Handbook) delegates to the Assistant Administrator for Fisheries 
authority to perform functions relating to the Magnuson-Stevens Act. 
Pursuant to that authority, the Assistant Administrator issues and 
approves rulemaking actions, including the proposed and final rules. 
The Assistant Administrator authorizes subordinates to carry out 
certain ministerial tasks associated with the Assistant Administrator's 
issuance of rulemakings. The commenter refers to several ancillary 
procedural actions related to the rulemaking. These ancillary actions 
should not be confused with issuance of the relevant rule.
    Comment 83: The Council never formally deemed the proposed 
regulations ``necessary'' or ``appropriate,'' as the Magnuson-Stevens 
Act requires.
    Response: It is well documented that the Council deemed the 
proposed

[[Page 82764]]

regulations to be necessary and appropriate in accordance with section 
303(c) of the Magnuson-Stevens Act. In the Council Motion C2 Halibut 
Abundance-Based Management (ABM) from December 13, 2021, the Council 
deemed proposed regulations that clearly and directly flow from the 
provisions of the motion to be necessary and appropriate in accordance 
with section 303(c) of Magnuson-Stevens Act. Similar language appears 
in the December 2021 Council Meeting Summary Report.
    Further, the Council authorized the Executive Director and the 
Chairman of the Council to review a draft of the proposed regulations 
to ensure that the proposed regulations were consistent with its 
instructions. On October 25, 2022, the Executive Director sent a letter 
to NMFS notifying it that he and Chairman Kinneen reviewed the draft 
FMP amendment text, notice of availability, proposed rule, initial 
regulatory flexibility analysis, and Analysis and concluded that they 
were consistent with the Council's action.
    Comment 84: In the proposed rule published December 9, 2022, NMFS 
erroneously concluded that Amendment 123 and the proposed rule are 
consistent with the Magnuson-Stevens Act (87 FR 75570). NMFS has 
unlawfully predetermined the result of the proposed action and rubber-
stamped the Council's ill-advised proposal before completing review of 
public comments.
    Response: NMFS disagrees. The Council considered, assessed, and 
heard from the public on a number of different alternatives before it 
selected the preferred alternative. Further, in the Classification 
section of the proposed rule (87 FR 75570 and 75582, December 9, 2022), 
NMFS states that the NMFS Assistant Administrator has determined that 
the proposed rule was consistent with Amendment 123, other provisions 
of the Magnuson-Stevens Act, and other applicable laws and was subject 
to further consideration after public comment period. It is NMFS's 
common practice and consistent with applicable law to provide such a 
preliminary conclusion when publishing the proposed rule (see Magnuson-
Stevens Act section 304(b)(1)). Because any such conclusion is subject 
to further consideration after public comments are received and 
considered by NMFS, NMFS did not predetermine the result of the 
proposed action.
    Comment 85: If NMFS proceeds with the proposed action, it should be 
implemented no earlier than January 1, 2025.
    Response: NMFS did not delay implementation of this action in 
response to this comment. The Council recommended Amendment 123 on 
December 13, 2021, with the clear expectation that NMFS implement it as 
soon as possible. In routine reports to the Council during its 
regularly scheduled meetings, NMFS provided status updates to the 
Council and the public about the ongoing rulemaking process, and, after 
approval of Amendment 123 by the Secretary of Commerce on March 7, 
2023, the expected timing of its implementation. During those meetings, 
NMFS informed the public that NMFS will implement Amendment 123 as soon 
as possible.

Other Applicable Laws and Executive Orders

    Comment 86: NMFS fails to rationalize the enormous costs of the 
proposed action with the requirements of E.O. 12866 and E.O. 13563.
    Response: The analysis of potential social and economic impacts is 
covered extensively in Sections 5.3 through 5.6 of the Analysis. In 
addition, a SIA is provided in Appendix 1 to the Analysis. These 
sections provide a thorough analysis of those E.O.s and potential 
socioeconomic impacts.
    Comment 87: The proposed action is a ``significant regulatory 
action'' under E. O. 12866 and, therefore, should have been reviewed by 
the Office of Information and Regulatory Affairs (OIRA), thus NMFS 
unlawfully failed to comply with E.O. 12866.
    Response: As noted in the Classification section of this final 
rule, OIRA has determined both the proposed and this final rule to be 
not significant for purposes of E.O. 12866 via the process outlined in 
the executive order itself and pursuant to all applicable laws and 
guidance.
    Comment 88: The proposed action fails to address the statutory 
Capacity Reduction Program (CRP). The CRP was a key component in 
defining the parameters and limitations of participation in the 
Amendment 80 sector and is referred to extensively in the Amendment 80 
implementing rulemaking (72 FR 52668, September 14, 2007). Section 
219(g)(2) of the CRP makes clear that the Council should ``take actions 
that promote the stability of [the non-pollock BSAI groundfish 
fisheries] consistent with the goals of this section and the purposes 
and policies of the Magnuson-Stevens Fishery Conservation and 
Management Act.''
    Response: NMFS agrees that the CRP defines parameters and 
limitations of participation on the Amendment 80 sector. The CRP, as 
part of a consolidated appropriations bill, made available capacity 
reduction funds to certain sectors, defining those sectors/subsectors 
(including Amendment 80) and eligibility criteria. To this end, NMFS 
did not address the CRP, as this action has nothing to do with the CRP 
funding, definitions, or eligibility criteria. Further, section 
219(g)(2) of the CRP, which was enacted in the Consolidated 
Appropriations Act of 2005 (Pub. L. 108-447; 118 Stat. 2890; Dec. 8, 
2004) provides the Council should continue on its path toward 
rationalization of the BSAI non-pollock groundfish fisheries, complete 
its ongoing work with respect to developing management plans for the 
BSAI non-pollock groundfish fisheries in a timely manner, and take 
actions that promote stability of these fisheries consistent with the 
goals of this section and the purposes and policies of the Magnuson-
Stevens Act. The Council and NMFS have completed those actions and any 
claim to the contrary is well beyond the scope of this action.
    Comment 89: The proposed action violates the Information Quality 
Act (IQA) because NMFS is using third-party data (i.e., IPHC data) to 
make decisions that have a large impact on the public without showing 
how the use of this data complies with the IQA. For example, NMFS does 
not describe how it will review IPHC survey results, how it will 
determine the data is of ``known quality,'' how it will determine the 
data's consistency with NOAA's information policy guidelines, or how 
the limitations of the data will be taken into account and disclosed.
    Response: NMFS disagrees. The IQA directed the Office of Management 
and Budget (OMB) to issue guidance to Federal agencies for ensuring and 
maximizing the quality, objectivity, utility, and integrity of 
information disseminated by Federal agencies. Pursuant to OMB guidance, 
NOAA issued guidelines specifically for NOAA information to ensure 
quality of information, an important management objective for NOAA and 
NMFS. The Agency's information quality guidelines are not intended to 
prevent the use of reliable outside information or full utilization of 
the best scientific information available. Use of third-party 
information from either domestic or international sources, such as the 
IPHC, is a common practice in NMFS. IPHC scientists are highly-trained, 
independent specialists. Their work is reviewed at least twice a year 
by the IPHC Scientific Review Board, as well as an external review 
conducted every 3 years. All findings of peer reviews are openly 
discussed in public meetings and published online. As specified in

[[Page 82765]]

regulations at Sec.  679.21(b)(1)(i)(B) governing the annual procedure 
for establishing the halibut PSC limit for the Amendment 80 sector, 
NMFS will annually receive and review the indices of halibut abundance 
produced by the IPHC and publish the resulting PSC limit in the annual 
harvest specifications.
    Comment 90: The proposed action is facially arbitrary and 
capricious, in violation of the APA. It nonsensically premises a 
halibut bycatch reduction measure on a metric that has little or no 
correlation to halibut bycatch, intends to improve results at low 
abundance states but then regulates all abundance states including one 
(very low) that has never been observed, fails to explain rejection of 
proposed options to adjust the alternatives, and fails to sufficiently 
analyze the action and its consequences.
    Response: The Council and NMFS have conducted extensive analysis 
and consideration in reaching the decision on this action, as recorded 
in the Analysis and the many documents incorporated into it. Most 
comments regarding assertions of APA violations are addressed in other 
applicable response sections, e.g., Response to Comment 72. This action 
is well-supported and reasonable for the circumstances addressed.
    Notably, the action's purpose and need statement required selection 
of a suitable means of determining halibut abundance. The best 
available science resulted in selection of the two indices included in 
this action. Since those indices are intended to measure abundance, not 
bycatch, any lack of correlation with bycatch does not affect their 
suitability. The goal of the action is to link the Amendment 80's PSC 
limit to halibut abundance, which essentially means that the annual PSC 
limit will vary according to indices of halibut abundance, similar to 
the harvest levels of other, regulated users of halibut. The fact that 
past bycatch levels poorly correlate to halibut abundance means there 
may be greater costs to reduce bycatch when halibut abundance is low, 
i.e., the mere fact that halibut abundance is lower may not directly 
translate into lower bycatch levels without changes in fleet behavior 
to avoid the bycatch, or there may be forgone harvest of groundfish 
because the fleet failed to sufficiently avoid it and hit the lower PSC 
limit. The costs and benefits of the action are discussed extensively 
in Section 5 of the Analysis. The Analysis also extensively describes 
the alternatives and options considered and the reason for selecting 
this action.
    Comment 91: For the same reasons that the proposed action violates 
the Magnuson-Stevens Act, the proposed action violates the Halibut Act.
    Response: The comment does not raise specific objections with 
regard to the Halibut Act. Therefore, no specific response is possible; 
NMFS maintains that this action is consistent with the Halibut Act and 
the Magnuson-Stevens Act.

Changes From the Proposed Rule

    This final rule includes the following change from the proposed to 
final rule to address the timing for when the abundance indices will be 
available relative to the annual harvest specification process.
    At Sec.  679.21(b)(1)(i)(B), NMFS removed the word ``proposed'' 
from the last sentence of the paragraph referring to the annual harvest 
specification for BSAI groundfish fisheries. NMFS will publish the 
Amendment 80 sector halibut PSC limit from table 58 to part 679 in the 
annual harvest specifications and it is not necessary to specify 
``proposed.'' This change is necessary to make these new halibut PSC 
limit regulations consistent with the existing PSC regulations at Sec.  
679.21. Additionally, because the final rule specifies that the IPHC 
submit the IPHC index to NMFS by December 1 of each year, and the 
proposed annual BSAI groundfish harvest specifications are prepared 
prior to December 1 each year, the IPHC index may not be available for 
inclusion in the proposed harvest specifications each year. NMFS will 
make the indices available to the public and the Council when they are 
provided by the AFSC and IPHC. The public can apply the indices to 
table 58 to part 679 to see the applicable PSC limit for the upcoming 
year prior to the publication of the final harvest specifications.

Classification

    Pursuant to sections 304(b)(3) and 305(d) of the Magnuson-Stevens 
Act, the NMFS Assistant Administrator has determined that this final 
rule is consistent with the Amendment 123 to the BSAI FMP, other 
provisions of the Magnuson-Stevens Act, and other applicable law.
    NMFS prepared a final EIS (FEIS) for Amendment 123 to the BSAI FMP. 
The FEIS for this action was filed with the Environmental Protection 
Agency on November 28 and a notice of availability was published on 
December 9, 2022 (87 FR 75625). In approving Amendment 123 on March 7, 
2023, NMFS issued a ROD identifying the selected alternative. A copy of 
the ROD is available from NMFS (see ADDRESSES).
    This final rule has been determined to be not significant for the 
purposes of E.O. 12866.

Regulatory Impact Review (RIR)

    An RIR was prepared to assess all costs and benefits of available 
regulatory alternatives. A copy of this analysis is available from NMFS 
(see ADDRESSES). NMFS implements Amendment 123 and the regulatory 
revisions in this final rule based on those measures that maximize net 
benefits to the Nation. Specific aspects of the economic analysis are 
discussed below in the Final Regulatory Flexibility Analysis section.

Small Entity Compliance Guide

    NMFS has posted a small entity compliance guide on the NMFS Alaska 
Region website (https://alaskafisheries.noaa.gov/sustainablefisheries/bycatch/default.htm) to satisfy the Small Business Regulatory 
Enforcement Fairness Act of 1996, which requires a plain language guide 
to assist small entities in complying with this rule.

Final Regulatory Flexibility Analysis (FRFA)

    Section 604 of the Regulatory Flexibility Act (RFA, 5 U.S.C. 604) 
requires that, when an agency promulgates a final rule under section 
553 of title 5 of the U.S. Code, after being required by that section 
or any other law to publish a general notice of proposed rulemaking, 
the agency shall prepare a FRFA. The following constitutes the FRFA 
prepared for the regulations implementing Amendment 123. This FRFA 
incorporates the initial regulatory flexibility analysis (IRFA), a 
summary of the significant issues raised by the public comments in 
response to the IRFA, NMFS's responses to those comments, and a summary 
of the analyses completed to support this action.
    Section 604 of the RFA describes the required contents of a FRFA: 
(1) a statement of the need for, and objectives of, the rule; (2) a 
statement of the significant issues raised by the public comments in 
response to the initial regulatory flexibility analysis, a statement of 
the assessment of the agency of such issues, and a statement of any 
changes made in the proposed rule as a result of such comments; (3) the 
response of the agency to any comments filed by the Chief Counsel for 
Advocacy of the Small Business Administration (SBA) in response to the 
proposed rule, and a detailed statement of any change made to the 
proposed rule in the final rule as a result of the comments; (4) a 
description of and an estimate of the number of small entities

[[Page 82766]]

to which the rule will apply or an explanation of why no such estimate 
is available; (5) a description of the projected reporting, 
recordkeeping, and other compliance requirements of the rule, including 
an estimate of the classes of small entities which will be subject to 
the requirement and the type of professional skills necessary for 
preparation of the report or record; and (6) a description of the steps 
the agency has taken to minimize the significant economic impact on 
small entities consistent with the stated objectives of applicable 
statutes, including a statement of the factual, policy, and legal 
reasons for selecting the alternative adopted in the final rule and why 
each one of the other significant alternatives to the rule considered 
by the agency that affect the impact on small entities was rejected.
    A description of this action, its purpose, and its legal basis is 
included in the preamble to this final rule and is not repeated here.

Public and Chief Counsel for Advocacy Comments on the IRFA

    An IRFA was prepared in the Classification section of the preamble 
to the proposed rule (87 FR 75570, December 9, 2022). The Chief Counsel 
for Advocacy of the SBA did not file any comments on the proposed rule. 
NMFS has evaluated the two comments received from CDQ groups. Those 
comments are discussed above in the Comments and Responses section of 
this final rule.
    Two CDQ groups provided comment letters and the substantive points 
of those comments were incorporated with other similar comments and 
responded to in this final rule. One CDQ group commented that they and 
many others advocated more restrictive PSC limits to further reduce 
halibut bycatch. They also noted the extraordinary challenge the 
Council faced with determining what action to recommend and that the 
process was informed by extensive and often divergent written comment 
and testimony. The central theme of their comment letter was that they 
strongly urge NMFS to move forward with Amendment 123 and this final 
rule, as crafted by the Council, without substantive alterations from 
NMFS.
    The second CDQ group comment stressed support for liming halibut 
bycatch and highlighted their efforts to do so. However, the comment 
also indicated that the action would impose unacceptable costs on the 
Amendment 80 sector including their wholly owned for-profit fishing 
subsidiary thus adversely impacting their subsidiary. The for-profit 
fishing subsidiary is considered a cooperative-affiliated large entity.
    NMFS made no changes to the final rule in response to the CDQ group 
comments.

Number and Description of Small Entities Regulated by This Final Rule

    NMFS has determined that vessels that are members of a fishing 
cooperative are affiliated when classifying them for the RFA analyses. 
In making this determination, NMFS considered the SBA ``principles of 
affiliation'' at 13 CFR 121.103. Specifically, in Sec.  21.103(f), SBA 
refers to ``[a]affiliation based on identity of interest,'' which 
states: ``Affiliation may arise among two or more persons with an 
identity of interest. Individuals or firms that have identical or 
substantially identical business or economic interests (such as family 
members, individuals or firms with common investments, or firms that 
are economically dependent through contractual or other relationships) 
may be treated as one party with such interests aggregated.'' If 
business entities are affiliated, then the threshold for identifying 
small entities is applied to the group of affiliated entities rather 
than on an individual entity basis. NMFS has reviewed affiliation 
information for Amendment 80 cooperative members that are directly 
regulated by this action and has determined that all directly regulated 
catcher/processors are large via cooperative affiliation, with one 
exception discussed below.
    This action indirectly affects the six Western Alaska CDQ groups 
that are non-profit corporations, are not dominant in the BSAI non-
pollock fishery, and are specifically identified as ``small'' entities 
in the regulations implementing the RFA. The CDQ entities have made 
direct investments in fishing vessels by creating wholly owned for-
profit fishing companies, several of which are directly regulated by 
this action. However, as for-profit ventures, these companies are not 
automatically defined as small entities due to CDQ ownership, and this 
analysis has determined that they are all Amendment 80 cooperative-
affiliated. Thus, while this action directly regulates these for-profit 
CDQ owned companies, they are considered to be large entities for RFA 
purposes.
    The thresholds applied to determine if an entity or group of 
entities are ``small'' under the RFA depends on the industry 
classification for the entity or entities. Businesses classified as 
primarily engaged in commercial fishing are considered small entities 
if they have combined annual gross receipts not in excess of 11.0 
million dollars for all affiliated operations worldwide (81 FR 4469; 
January 26, 2016). Since at least 1993, NMFS Alaska Region has 
considered catcher/processors to be predominantly engaged in fish 
harvesting rather than fish processing.
    One additional vessel, the Golden Fleece, has been identified as a 
potentially directly regulated small entity based on revenue analysis. 
Revenue data for this single small entity is confidential. The Golden 
Fleece is not Amendment 80 cooperative or ownership-affiliated, as it 
is an independent company. Therefore, the Golden Fleece is considered 
to be the only non-CDQ small entity directly regulated by this action.
    Based on this analysis, NMFS has determined that one catcher/
processor may be considered small and would be directly regulated by 
this action. NMFS has carefully considered whether a single entity 
represents a ``substantial number'' of directly regulated entities. 
When Amendment 80 was enacted, there were 27 original issuances of 
License Limitation Permits (LLPs). That is the same number of Amendment 
80 LLPs issued currently. The Golden Fleece does not hold one of the 27 
original or current LLPs issued, having not applied for an Amendment 80 
LLP to date. Through consolidation and vessel replacement, all of the 
LLPs participating in the Amendment 80 fishery are presently owned by 
five distinct corporations that are all cooperative-affiliated large 
entities. NMFS acknowledges that the corporations owning the LLPs is 
the proper entity for determining whether a substantial number of 
directly regulated entities is affected.

Description of Significant Alternatives Considered to the Final Action 
That Minimize Adverse Impacts on Small Entities

    No significant alternatives were identified that would accomplish 
the stated objectives for implementing a halibut abundance-based 
management via regulation, be consistent with applicable statutes, and 
minimize costs to potentially affected small entities more than this 
action. The Council and NMFS considered five alternatives including 
three sub-options that could apply to all action alternatives.
    The Council recommended and this final rule implements Amendment 
123 (Alternative 5) to establish an annual process to determine the 
annual PSC limit for the Amendment 80 sector based on two indices of 
halibut abundance, the IPHC index and NMFS EBS index. Alternatives 2 
through 4

[[Page 82767]]

included use of the same style of index table as Amendment 123 but 
included different ranges of halibut PSC limits for the various survey 
index levels. Alternative 2 included a range of halibut PSC limits from 
1,745 mt to 1,396 mt (20 percent reduction). Alternative 3 included a 
range from 2,007 mt (15 percent increase) to 1,222 mt (30 percent 
reduction). Alternative 4 included a range from 1,745 mt to 960 mt (45 
percent reduction).
    This action reflects requirements for the Council, and NMFS, to 
balance several factors when establishing PSC limits, including the 
likely impacts on the halibut stock and affected participants in the 
Amendment 80 and directed halibut fisheries. This action specifies 
halibut PSC limits that range from 1,745 mt (the previous static 
Amendment 80 halibut PSC limit) to 1,134 mt (35 percent reduction). 
This is within the range of halibut PSC limits considered. The Council 
and NMFS acknowledged that halibut is fully utilized in the BSAI and at 
the medium to very low survey index states, the Amendment 80 PSC limit 
should be reduced. Under those conditions, reduced halibut mortality 
through lower PSC limits is expected to ensure that the Amendment 80 
sector's share of the overall halibut removals in the Bering Sea does 
not become a larger proportion at lower levels of halibut abundance, 
consistent with the Council's purpose and need statement.
    The Council and NMFS appropriately considered the Magnuson-Stevens 
Act requirements. This action balances the interests of the two largest 
halibut user groups in the BSAI, the directed commercial halibut 
fishery and the Amendment 80 sector, by establishing abundance-based 
halibut PSC limits for the Amendment 80 sector. This abundance-based 
approach is similar to the IPHC's management approach for the directed 
halibut fisheries off Alaska, which establishes annual catch limits 
that vary with established measures of halibut abundance.

Collection of Information Requirements

    This final rule contains no information collection (``recordkeeping 
and reporting'') requirements under the Paperwork Reduction Act of 
1995. This rule does not change existing information collections or 
create new information collections applicable to directly regulated 
entities. The Amendment 80 sector is subject to a comprehensive 
information collection in the form of the Economic Data Reporting (EDR) 
Program enacted in 2008. The existing collection of information 
requirements for the Amendment 80 Economic Data Report continue to 
apply under Office of Management and Budget Control Number 0648-0564.

Tribal Summary Impact Statement

    NMFS's responsibilities for Tribal consultations on Federal 
policies with Tribal implications are outlined in E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments (November 
6, 2000), the Executive Memorandum (April 29, 1994), the American 
Indian and Alaska Native Policy of the U.S. Department of Commerce 
(March 30, 1995), the Department of Commerce Tribal Consultation and 
Coordination Policy (78 FR 33331, June 4, 2013), Presidential 
Memorandum (Tribal Consultation and Strengthening Nation-to-Nation 
Relationships) (86 FR 7491, January 29, 2021), and the updated NOAA 
Policy on Government-to-Government Consultations with Federally 
Recognized Indian Tribes and Alaska Native Corporations (July 27, 
2023). Further, section 161 of Public Law 108-199 extends the 
consultation requirements of E.O. 13175 to Alaska Native corporations.
    Section 5(b)(2)(B) of E.O. 13175 requires NMFS to prepare a 
``tribal summary impact statement'' for any regulation that has Tribal 
implications, imposes substantial direct compliance costs on Native 
Tribal governments, and is not required by statute. The following is a 
Tribal Summary Impact Statement for this final rule.
    Under E.O. 13175 and agency policies, NMFS notified all potentially 
impacted federally recognized Tribal governments in Alaska and Alaska 
Native Corporations potentially affected by this action and supporting 
analyses, as well as of the opportunity to comment and respond to the 
agency's invitation for Tribal consultation on the action.

Description of the Extent of NMFS's Prior Consultation With Tribal 
Officials

    On August 18, 2020, NMFS mailed Tribal consultation invitation 
letters to Alaska Native Tribes, Alaska Native Corporations, and Alaska 
Native Organizations (``Alaska Native representatives''). The letter 
notified Alaska Native representatives that a preliminary draft 
Analysis on setting annual halibut PSC limits for the Amendment 80 
sector, based on halibut abundance levels (Halibut ABM), would be 
presented to the Council for initial review, with an invitation to 
participate in the process and contribute to fishery decisions at the 
October 2020 meeting. NMFS and the Council sought public input on the 
Analysis, including comments on the alternatives analyzed and 
preliminary results. In addition to public participation in the Council 
process, NMFS invited Alaska Native representatives to consult with and 
provide comments to the agency directly via virtual meeting or by 
telephone.
    On April 26, 2021, NMFS mailed Tribal consultation invitation 
letters to Alaska Native representatives. The letter notified Alaska 
Native representatives that a draft Analysis evaluating the potential 
effects of the Halibut ABM action would be presented to the Council for 
final action at the December 2021 meeting. The letter invited Alaska 
Native representatives to participate in the process and contribute 
toward final management decisions. NMFS included information on when 
the Agency expected to publish the draft Analysis, further instructions 
to submit public comments on the document (including comments on the 
alternatives analyzed and preliminary results), and ways to provide 
additional public input on this action, including methods to provide 
such input through the Council process prior to the Council taking 
final action in December 2021. In addition to public participation in 
the Council process, an invitation for government-to-government 
consultation, and ways to provide comments to the agency on the Halibut 
ABM action directly via virtual meeting or by telephone, was also 
provided by NMFS.
    In September 2021, NMFS, in conjunction with the Council, issued 
the draft Analysis. In conformance with NEPA requirements, NMFS 
solicited public comment on the draft Analysis. NMFS accepted public 
comments during a 60-day public comment period from September 6, 2021, 
to October 25, 2021. NMFS received 542 letters of comment. Of the 542 
written public comments, NMFS received two letters from Alaska Native 
representatives: Aleutian Pribilof Islands Association (APIA) and Aleut 
Community of Saint Paul Island (ACSPI). A copy of the written comments 
are available on the NMFS Alaska Region Tribal Consultation website 
(see ADDRESSES).
    Additionally, on November 10, 2021, NMFS mailed a letter inviting 
Alaska Native representatives to participate in a halibut bycatch 
listening session on November 29, 2021, to discuss Halibut ABM. NMFS 
listened to concerns on halibut bycatch issues and provided the time 
for Alaska Native representatives and NMFS staff to get acquainted. A 
status update and a description of how NMFS works with the Council 
staff on fishery management actions was

[[Page 82768]]

provided. This listening session was considered Tribal engagement, not 
government-to-government consultation. The listening session included 
the following Alaska Native representatives: Kuskokwim Inter-Tribal 
Fish Commission, Kawerak, Inc., Bristol Bay Native Association, 
Association of Village Council Presidents, ACSPI, APIA, and a native 
Bristol Bay halibut fisherman. Comments from Alaska Native 
representatives are summarized in the Halibut Bycatch in Alaska 
Listening Session (November 2021) available on the NMFS Alaska Region 
website (see ADDRESSES).
    In 2021, NMFS conducted Tribal consultation on the Halibut ABM 
action with Alaska Native representatives that expressed interest 
including the ACSPI and APIA, which represents the following 13 
federally recognized Tribes: Native Village of Akutan, Native Village 
of Atka, Native Village of Belkofski, Native Village of False Pass, 
Agdaagux Tribe of King Cove, Native Village of Nelson Lagoon, Native 
Village of Nikolski, Pauloff Harbor Village, Qagan Tayagungin Tribe of 
Sand Point Village, Aleut Community of St. George Island, ACSPI, 
Qawalangin Tribe of Unalaska, and Native Village of Unga. The purpose 
was to complete consultation between the ACSPI and NMFS Alaska Region 
per the agency's government-to-government relationship regarding the 
Halibut ABM action scheduled for final action at the December 2021 
Council meeting. NMFS shared information about the action and its 
potential implementation during the meeting but primarily wanted to 
hear and better understand the ACSPI perspective regarding Tribal 
impacts.
    On February 9, 2022, NMFS continued the Tribal consultation process 
by mailing Tribal consultation invitation letters to the following 19 
federally recognized Tribes and representatives that may be impacted by 
the Halibut ABM action: Akutan Native Village, Atka Native Village, 
Village of Chefornak, Curyung Tribal Council, Native Village of Hooper 
Bay, Native Village of Kipnuk, Native Village of Kwinhagak, Native 
Village of Mekoryuk, Newtok Village, Native Village of Nightmute, Nome 
Eskimo Community, Nunakauyarmiut Tribe, Qawalangin Tribe of Unalaska, 
Native Village of Savoonga, Aleut Community of Saint George Island, 
ACSPI, Traditional Village of Togiak, Native Village of Tununak, and 
Twin Hills Village. Each agency letter to the Tribal communities 
potentially affected by the Halibut ABM action had a link to the 
website where the draft Analysis was posted. NMFS also responded to 
requests from Alaska Native representatives for copies of the draft 
Analysis. In addition, NMFS provided information on the intent to 
solicit public comment on the proposed regulations to implement the 
action and on the notice of availability of the Amendment 123. The 
letter included clarification on the action, and, although the public 
comment period on the draft Analysis had closed, NMFS sought additional 
input from Alaska Native representatives that may be affected by the 
fishery action for the development of the Analysis. NMFS stated that 
any additional information Alaska Native representatives may wish to 
provide through Tribal consultation would be considered and summarized 
in the Analysis.
    On March 4, 2022, NMFS sent a letter to the Bering 
Intergovernmental Tribal Advisory Council (BITAC) notifying them that 
the Council took final action on Halibut ABM and selected a preferred 
alternative that would determine the Amendment 80 PSC limit annually 
based on the most recent values from surveys conducted by the AFSC and 
the IPHC. NMFS also notified BITAC that during the public comment 
period on the draft Analysis, released in the fall of 2021, the U.S. 
Environmental Protection Agency submitted a comment letter on the draft 
Analysis advising NMFS that the BITAC may be able to provide helpful 
information on this action. NMFS stated in the letter to BITAC that the 
Agency was seeking additional input from them as this action occurred 
within the Northern Bering Sea Climate Resilience Area. The Agency 
provided a link to the draft Analysis and stated that Tribal feedback 
was optional, but any additional information that BITAC may wish to 
provide would be considered and summarized in the Analysis.
    Additionally, NMFS provided a copy of the proposed rule to all 
potentially impacted federally recognized Tribal governments in Alaska 
and Alaska Native Corporations to notify them of the opportunity to 
comment or request a consultation on this action.

A Summary of the Nature of Tribal Concerns

    Comments from Alaska Native representatives are summarized in the 
Halibut Abundance-Based Management Consultation Summary Aleut Community 
of Saint Paul Island (November 2021) and Summary of Tribal Consultation 
Teleconference to Discuss Halibut ABM Concerns with APIA (July 2021) 
available on the NMFS Alaska Region website (see ADDRESSES). NMFS 
received one letter from APIA providing oral and written public 
testimony on the Halibut ABM action. A copy of the oral public 
testimony on April 21, 2021, at the April 2021 Council meeting 
(Appendix 1) and written comments on March 30, 2021 (Appendix 2), are 
also available in the Summary of Tribal Consultation Teleconference to 
Discuss Halibut ABM Concerns with Aleutian Pribilof Islands Association 
(July 2021) available on the NMFS Alaska Region website (see 
ADDRESSES).
    On November 24, 2021, during the Tribal consultation between NMFS 
and the ACSPI, a summary of Tribal Concerns included: (1) the Halibut 
ABM action decides the future of the community of St. George, as it is 
linked to the success of the Saint Paul halibut fishery; (2) continued 
out migration of people from the Pribilof Islands to elsewhere due to 
limited economic opportunities; (3) more attention needs to be paid to 
coastal fishing communities, including Tribal members, by NMFS and the 
Council; (4) halibut abundance has declined, although bycatch limits 
have not, with cumulative losses to the directed halibut fishery of 
approximately 50 million dollars and this information should be 
included in the draft Analysis prepared for the ABM action; (5) there 
are 17 communities that are categorized as halibut-dependent 
communities in the Analysis and those communities should be directly 
involved with NMFS regarding this action because it is inequitable and 
unjust that fishery communities get the leftovers after the 
establishment of bycatch limits; (6) Alternative 4 of the Analysis is 
the only alternative supported by the Aleut Community of Saint Paul 
Island in order to restore equity of the resource; (7) halibut is not 
just a Saint Paul issue--it is an ecosystem wide issue and all 
communities need halibut from Norton Sound to the North Pacific; (8) 
the allocation policy must be addressed because it is not appropriate 
use of the public's resources; and (9) Tribes need a voice in halibut 
management because it is an issue of sovereignty related to the 
agency's government-to-government obligations with Alaska Native Tribes 
and Corporations. ACSPI discussed the history of halibut fishing in the 
Pribilof Islands, previous related decisions, and the current action 
that were threatening their way of life, and encouraged NMFS and the 
Council to implement Alternative 4, which would provide relief to 
native families and communities, curtail out migration of families/
residents, and restore the long-term health of the halibut resource.
    During the Tribal consultation between NMFS and APIA, a summary of

[[Page 82769]]

Tribal Concerns included statements such as: (1) Alaska Native regional 
non-profit consortiums should have the same opportunity for Tribal 
consultation as Alaska Native Corporations; (2) few Tribes have 
requested Tribal consultation on Halibut ABM because the NMFS 
consultation process is difficult to navigate and needs improvement; 
(3) APIA supports Halibut ABM Alternative 4, option 3; (4) the lack of 
resource access due to Amendment 80 bycatch in the Pribilof communities 
is an environmental justice issue; (5) National Standard 5 (economic 
efficacy) cannot be the reason to continue the halibut allocation 
policy and there is a need to reduce direct economic impacts; (6) NMFS 
did a decent job of capturing the negative per capita impacts and 
burdens to small communities, but there are more impacts to add to the 
draft Analysis; (7) under National Standard 9 (reducing bycatch), use 
of a stringent bycatch limit will give Amendment 80 the power to do so; 
(8) halibut are culturally important and are critical to subsistence 
and commercial use; (9) direct losses to IFQ users, with IFQ quota 
lowered to unsupportable amounts, given this may be their only fishery, 
should be included in the Analysis; (10) all of the impacts discussed 
in the Analysis, except for groundfish and Amendment 80, are 
experienced by users in the Pribilof Islands; (11) the Council could do 
a better job describing the impacts to various users using a different 
analysis; and (12) NMFS should provide the Council with the best 
available data (including information on impact to recruitment classes 
and on current abundance and distribution) that allows many fishery 
users, as well as the ecosystem benefits of halibut, to continue.
    During the November 29, 2021 Listening Session, a summary of Tribal 
Concerns included: (1) all Alaska Native representatives who 
participated in the listening session supported Alternative 4 for final 
action; (2) the draft Analysis need to consider impacts to all 17 
affected halibut native fishing communities; (3) conservation of the 
halibut resource is essential to the socio ecological system; and (4) 
NMFS should continue to improve how the agency engages under Tribal 
consultation.
    NMFS also conducted Tribal consultations with these entities on 
July 16 and November 24, 2021, respectively. Specific Tribal concerns 
conveyed during government-to-government Tribal consultation are 
described above in the first two paragraphs of this section. Alaska 
Native representative comments were also summarized and responded to in 
the Comment Summary Report in Chapter 8 of the Analysis, which is 
posted on the NMFS Alaska Region website (see ADDRESSES). In summary, 
Tribal Concerns were focused on providing relief to native halibut 
fishing families and communities as well as needed improvements in NMFS 
Tribal engagement and consultation process. Individual detailed 
summaries of the Tribal Concerns listed above are available on the NMFS 
Alaska Region website (see ADDRESSES).

NMFS's Position Supporting the Need To Issue the Regulation

    This final rule is needed to implement management improvements to 
minimize halibut bycatch in the Amendment 80 fisheries. NMFS's position 
is stated in the Preamble and Response to Comments sections.

Statement of the Extent to Which the Concerns of Tribal Officials Have 
Been Met

    From the perspective of a number of Alaska Native Tribes and 
Corporations, one of the primary factors in initiating this action was 
concern over the impacts of halibut bycatch to local Alaska Native 
fishing communities that rely on halibut for subsistence and commercial 
use. While the final fishery rule does not reflect the most 
conservative actions advocated by some Alaska Native representatives, 
it will minimize bycatch to the extent practicable within our 
authorities. To address Tribal concerns that the draft Analysis did not 
include the 17 Alaska communities potentially directly affected by this 
action, NMFS, during the initial screening criteria for the selection 
of Alaska communities for inclusion in the Analysis, identified 29 
Alaska communities, 20 of which are in the BSAI region. These 
communities were selected for analysis as potentially substantially 
engaged in, and/or potentially substantially dependent on, the BSAI 
Area 4 halibut fishery sectors most likely to be directly affected by 
one or more of the proposed action alternatives communities. A total of 
17 of these Alaska communities were considered halibut-dependent for 
the purposes of our analyses. Of the 17 Alaska communities identified, 
16 are home to federally recognized Alaska Native Tribes.
    NMFS and the Council have made great improvements in conducting 
direct outreach, communication, formal Tribal consultation, and 
informal engagement with Alaska Native representatives, which include 
Alaska Native Tribes, Alaska Native corporations, native organizations, 
and communities over the last few years. NMFS and the Council made 
significant efforts to involve Alaska Native representatives in the 
Halibut ABM action. In conjunction with the Council outreach, NMFS 
provided information to Alaska Native representatives who were 
interested in engaging at each step in the process and consulted with 
interested Alaska Native representatives, as described in ``A 
Description of the Extent of the Agency's Prior Consultation with 
Tribal Officials.''
    As a result of these consultations and engagements, NMFS made 
significant improvements to the Analysis and final rulemaking to: (1) 
accurately document the importance of the subsistence way of life and 
address resulting deficiencies within the suite of Analysis 
alternatives and analyses, and (2) uphold E.O. 13175 to improve the 
agency's Tribal consultation process regarding the Halibut ABM action.
    NMFS acknowledges the long-standing challenges that Alaska Native 
representatives have had communicating with NMFS and appreciates the 
Tribes' commitment to communicating needed improvements to the 
consultation process. NMFS has taken several actions over the last 
year, including building staff capacity and hosting listening sessions, 
to improve Tribal consultation.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Halibut, Reporting and recordkeeping 
requirements.

    Dated: November 14, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs National Marine 
Fisheries Service.
    For reasons set out in the preamble, NMFS amends 50 CFR part 679 as 
follows:

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

0
1. The authority citation for part 679 continues to read as follows:

    Authority:  16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; 
Pub. L. 108-447; Pub. L. 111-281.

0
2. In Sec.  679.21, revise paragraph (b)(1) introductory text and add 
paragraphs (b)(1)(i)(A) through (C) to read as follows:


Sec.  679.21  Prohibited species bycatch management.

* * * * *
    (b) * * *
    (1) Establishment of BSAI halibut PSC limits. Subject to the 
provisions in

[[Page 82770]]

paragraphs (b)(1)(i) through (iv) of this section, the following three 
BSAI halibut PSC limits are established, which total 1,770 mt: BSAI 
trawl limited access sector--745 mt; BSAI non-trawl sector--710 mt; and 
CDQ Program--315 mt (established as a PSQ reserve). An additional 
amount of BSAI halibut PSC limit for the Amendment 80 sector will be 
determined for each calendar year according to the procedure in 
paragraph (b)(1)(i) of this section.
    (i) * * *
    (A) General. The Amendment 80 sector BSAI halibut PSC limit applies 
to Amendment 80 vessels while conducting any fishery in the BSAI and is 
an amount of halibut determined annually according to the procedure in 
paragraph (b)(1)(i)(B) of this section.
    (B) Annual procedure. By October 1 of each year, the Alaska 
Fisheries Science Center will provide the Regional Administrator an 
estimate of halibut biomass derived from the most recent Alaska 
Fisheries Science Center Eastern Bering Sea shelf trawl survey index. 
Each year, NMFS will request that the International Pacific Halibut 
Commission provide to the Regional Administrator, by December 1 of that 
year, an estimate of halibut biomass derived from the most recent 
International Pacific Halibut Commission setline survey index. NMFS 
will apply both halibut biomass estimates to table 58 to this part, 
such that the value at the intercept of those survey indices in table 
58 is the Amendment 80 sector halibut PSC limit for the following 
calendar year. NMFS will publish the new Amendment 80 sector halibut 
PSC limit in the annual harvest specifications.
    (C) Allocation of BSAI halibut PSC to Amendment 80 cooperatives and 
the Amendment 80 limited access fishery. For Amendment 80 cooperatives 
and the Amendment 80 limited access fishery, BSAI halibut PSC limits 
will be allocated according to the procedures and formulas in Sec.  
679.91(d) and (f) (not paragraph (b)(1)(i)(B) of this section). If 
halibut PSC is assigned to the Amendment 80 limited access fishery, it 
will be apportioned into PSC allowances for trawl fishery categories 
according to the procedure in paragraphs (b)(1)(ii)(A)(2) and (3) of 
this section.
* * * * *

0
3. In Sec.  679.91, revise paragraphs (d)(1), (d)(2)(i), and (d)(3) to 
read as follows:


Sec.  679.91  Amendment 80 Program annual harvester privileges.

* * * * *
    (d) * * *
    (1) Amount of Amendment 80 halibut PSC for the Amendment 80 sector. 
The amount of halibut PSC limit for the Amendment 80 sector for each 
calendar year is determined according to the procedure in Sec.  
679.21(b)(1)(i). That halibut PSC limit is then assigned to Amendment 
80 cooperatives and the Amendment 80 limited access fishery pursuant to 
paragraphs (d)(2) and (3) of this section. If one or more Amendment 80 
vessels participate in the Amendment 80 limited access fishery, the 
halibut PSC limit assigned to the Amendment 80 cooperatives will be 
reduced pursuant to paragraph (d)(3) of this section.
    (2) * * *
    (i) Multiply the amount of annual halibut PSC established according 
to the procedure in Sec.  679.21(b)(1)(i) by the percentage of the 
Amendment 80 halibut PSC apportioned to each Amendment 80 species as 
established in table 36 to this part. This yields the halibut PSC 
apportionment for that Amendment 80 species.
* * * * *
    (3) Amount of Amendment 80 halibut PSC assigned to the Amendment 80 
limited access fishery. The amount of Amendment 80 halibut PSC limit 
assigned to the Amendment 80 limited access fishery is equal to the 
amount of halibut PSC assigned to the Amendment 80 sector, as 
established according to the procedure in Sec.  679.21(b)(1)(i), less 
the amount of Amendment 80 halibut PSC assigned as CQ to all Amendment 
80 cooperatives as determined in paragraph (d)(2)(iv) of this section, 
multiplied by 80 percent.
* * * * *

0
4. Revise table 35 to part 679 to read as follows:

 Table 35 to Part 679--Apportionment of Crab PSC and Halibut PSC Between the Amendment 80 and BSAI Trawl Limited
                                                 Access Sectors
----------------------------------------------------------------------------------------------------------------
                                   Halibut PSC                    C. opilio crab     Zone 1 C.       Zone 2 C.
                                  limit in the      Zone 1 Red       PSC limit      bairdi crab     bairdi crab
            Fishery               BSAI is . . .    king crab PSC  (COBLZ) is . .  PSC limit is .  PSC limit is .
                                      (mt)        limit is . . .         .              . .             . .
----------------------------------------------------------------------------------------------------------------
                                    As determined according to Sec.   679.21(b)(1) and the procedures at Sec.
                                                                 679.21(b)(1)(i).
                               ---------------------------------------------------------------------------------
Amendment 80 sector...........  Annual                     49.98           49.15           42.11           23.67
                                 Determination
                                 \1\.
BSAI trawl limited access.....  745.............           30.58           32.14           46.99           46.81
----------------------------------------------------------------------------------------------------------------
\1\ See Sec.   679.21(b)(1)(i) and table 58 to this part for the annual determination process for Amendment 80
  halibut PSC limits in the BSAI.


0
5. Add table 58 to part 679 to read as follows:

[[Page 82771]]



                Table 58 to Part 679--Amendment 80 Sector Annual BSAI Pacific Halibut PSC Limits
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Survey index ranges                                      Eastern Bering Sea shelf trawl survey index (t)
                                               -----------------------------------------------------------------
                                                Low.............................               High
                                                <150,000........................             >=150,000
----------------------------------------------------------------------------------------------------------------
IPHC setline survey index in Area 4ABCDE        High >=11,000...................        1,745 mt        1,745 mt
 (WPUE).
                                                Medium 8,000-10,999.............        1,396 mt        1,571 mt
                                                Low 6,000-7,999.................        1,309 mt        1,396 mt
                                                Very Low <6,000.................        1,134 mt        1,134 mt
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2023-25513 Filed 11-22-23; 8:45 am]
BILLING CODE 3510-22-P