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Proposed Rule2022-26337

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

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Published

December 9, 2022

Issuing agencies

Commerce DepartmentNational Oceanic and Atmospheric Administration

Abstract

NMFS proposes regulations to implement Amendment 123 to the Fishery Management Plan (FMP) for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI). If approved, the proposed rule would amend regulations governing limits on Pacific halibut (Hippoglossus stenolepis) (halibut) prohibited species catch (PSC), or bycatch, in the BSAI. Namely, the proposed amendment would link the halibut PSC limit to halibut abundance for the Amendment 80 commercial groundfish trawl fleet in the BSAI groundfish fisheries. This action responds to the obligation in section 303(a)(11) of the Magnuson- Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) to minimize bycatch to the extent practicable, and is consistent with the Magnuson-Stevens Act national standards. This action: minimizes halibut PSC to the extent practicable under National Standard 9; ensures that the FMP will continue to achieve optimum yield in the BSAI groundfish fisheries on a continuing basis under National Standard 1; is based upon the best scientific information available under National Standard 2; to the extent it involves an allocation of fishing privileges, is fair and equitable, reasonably promotes conservation by reducing incidental halibut mortality caused by the Amendment 80 trawl fleet, and does not result in any excessive shares of fishing privileges under National Standard 4; and takes into account the importance of fishery resources to fishing communities under National Standard 8. The action is expected to provide incentives for the Amendment 80 fleet to minimize halibut mortality at all times and conserve and improve bycatch management of the halibut resource, and it may result in additional harvest opportunities in the commercial halibut fishery. This action is intended to promote the goals and objectives of the Magnuson-Stevens Act, other applicable laws, and Amendment 123 to the BSAI FMP.

Full Text

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<title>Federal Register, Volume 87 Issue 236 (Friday, December 9, 2022)</title>
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<body><pre>
[Federal Register Volume 87, Number 236 (Friday, December 9, 2022)]
[Proposed Rules]
[Pages 75570-75585]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-26337]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 221128-0250]
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: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement Amendment 123 to the
Fishery Management Plan (FMP) for Groundfish of the Bering Sea and
Aleutian Islands Management Area (BSAI). If approved, the proposed rule
would amend regulations governing limits on Pacific halibut
(Hippoglossus stenolepis) (halibut) prohibited species catch (PSC), or
bycatch, in the BSAI. Namely, the proposed amendment would link the
halibut PSC limit to halibut abundance for the Amendment 80 commercial
groundfish trawl fleet in the BSAI groundfish fisheries. This action
responds to the obligation in section 303(a)(11) of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act)
to minimize bycatch to the extent practicable, and is consistent with
the Magnuson-Stevens Act national standards. This action: minimizes
halibut PSC to the extent practicable under National Standard 9;
ensures that the FMP will continue to achieve optimum yield in the BSAI
groundfish fisheries on a continuing basis under National Standard 1;
is based upon the best scientific information available under National
Standard 2; to the extent it involves an allocation of fishing
privileges, is fair and equitable, reasonably promotes conservation by
reducing incidental halibut mortality caused by the Amendment 80 trawl
fleet, and does not result in any excessive shares of fishing
privileges under National Standard 4; and takes into account the
importance of fishery resources to fishing communities under National
Standard 8. The action is expected to provide incentives for the
Amendment 80 fleet to minimize halibut mortality at all times and
conserve and improve bycatch management of the halibut resource, and it
may result in additional harvest opportunities in the commercial
halibut fishery. This action is intended to promote the goals and
objectives of the Magnuson-Stevens Act, other applicable laws, and
Amendment 123 to the BSAI FMP.

DATES: Submit comments on or before January 23, 2023.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2022-0088,
by any of the following methods:
<bullet> Electronic Submission: Submit all electronic public
comments via the Federal eRulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and enter NOAA-NMFS-2022-0088 in the Search box.
Click the ``Comment Now!'' icon, complete the required fields, and
enter or attach your comments.
<bullet> Mail: Submit written comments to Josh Keaton, Acting
Assistant Regional Administrator, Sustainable Fisheries Division,
Alaska Region NMFS, Attn: Records Office. Mail comments to P.O. Box
21668, Juneau, AK 99802-1668.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
<a href="http://www.regulations.gov">www.regulations.gov</a> without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be publicly accessible. NMFS will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous).
Electronic copies of Amendment 123 may be obtained from <a href="https://www.regulations.gov">https://www.regulations.gov</a>. The final Environmental Impact Statement/
Regulatory/Impact Review (collectively referred to as the ``Analysis'')
prepared for this proposed rule may be found on the Alaska Regional
Office website at: <a href="https://www.fisheries.noaa.gov/resource/document/final-environmental-impact-statement-bering-sea-and-aleutian-islands-bsai-halibut">https://www.fisheries.noaa.gov/resource/document/final-environmental-impact-statement-bering-sea-and-aleutian-islands-bsai-halibut</a>.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted by mail to NMFS at the above address;
emailed to <a href="/cdn-cgi/l/email-protection#e7a8aeb5a6b8b492858a8e94948e8889a7888a85c9828897c9808891"><span class="__cf_email__" data-cfemail="521d1b00130d0127303f3b21213b3d3c123d3f307c373d227c353d24">[email&#160;protected]</span></a>; or faxed to 202-395-5806.

FOR FURTHER INFORMATION CONTACT: Bridget Mansfield, 907-586-7228.

SUPPLEMENTARY INFORMATION:

[[Page 75571]]

Table of Contents

I. Authority for Action
II. Background
A. The Halibut Resource
1. Status of the Halibut Stock and Management Framework
2. Allocation of Halibut Among Fisheries
B. Halibut Fisheries in the BSAI
C. Comparing Commercial Halibut Catch and PSC in the BSAI
Groundfish Fisheries
D. Halibut PSC Management in the BSAI Groundfish Fisheries
III. Rationale and Impacts of Amendment 123 and the Proposed Rule
A. Methods for Analysis of Impacts
B. Impacts on the Halibut Stock
C. Impacts on Directed Halibut Fishery Participants and Fishing
Communities
D. Impacts on Amendment 80 Participants and Fishing Communities
E. Rationale for Amendment 123 and the Proposed Rule and
Consistency with Magnuson-Stevens Act National Standards
IV. The Proposed Rule
V. Classification
A. Regulatory Impact Review (RIR)
B. Initial Regulatory Flexibility Analysis (IRFA)
1. Number and Description of Small Entities Regulated by This
Proposed Rule
2. Federal Rules That May Duplicate, Overlap, or Conflict With
the Proposed Action
3. Description of Significant Alternatives That Minimize Adverse
Impacts on Small Entities
4. Collection of Information Requirements
C. Tribal Consultation

I. Authority for Action

NMFS manages the United States (U.S.) groundfish fisheries in the
exclusive economic zone (EEZ) of the BSAI under the BSAI FMP. The North
Pacific Fishery Management Council (Council) prepared, and the
Secretary of Commerce (Secretary) approved, the BSAI FMP under the
authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq.
Regulations governing U.S. fisheries and implementing the BSAI FMP
appear at 50 CFR parts 600 and 679. The Council is authorized to
prepare and recommend an FMP amendment for the conservation and
management of a fishery managed under the FMP. NMFS conducts rulemaking
to implement FMP amendments and related regulatory amendments. FMP
amendments and regulations developed by the Council may be implemented
by NMFS only after approval by the Secretary.
A notice of availability (NOA) for Amendment 123 was published in
the Federal Register on November 9, 2022, with comments invited through
January 9, 2023. Comments submitted on this proposed rule by the end of
the comment period (See DATES) will be considered by NMFS and addressed
in the response to comments in the final rule. Comments submitted on
this proposed rule may address Amendment 123 or this proposed rule.
However, all comments addressing Amendment 123 must be received by
January 9, 2023, to be considered in the approval/disapproval decision
on Amendment 123. Commenters do not need to submit the same comments on
both the NOA and this proposed rule. All relevant written comments
received by January 9, 2023, whether specifically directed to Amendment
123, this proposed rule, or both will be considered by NMFS in the
approval/disapproval decision for Amendment 123 and addressed in the
response to comments in the final rule.

II. Background

In December 2021, the Council voted to recommend Amendment 123 to
link the halibut PSC limit to halibut abundance for the Amendment 80
(i.e., non-pollock) commercial groundfish trawl fleet in the BSAI
groundfish fisheries. 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
weighed and balanced the Magnuson-Stevens Act's legal requirements,
including the ten national standards. Based on public comment, the
analysis prepared pursuant to the National Environmental Policy Act
(NEPA), and analyses under Executive orders and related laws that were
included in the NEPA documentation, the Council selected to recommend
Amendment 123 to NMFS.
This action would provide incentives for the Amendment 80 fleet to
minimize halibut mortality at all times. Achievement of these
objectives would conserve the halibut resource by improving bycatch
management and could result in additional harvest opportunities in the
directed commercial and subsistence halibut fisheries. To implement
Amendment 123, in this action, NMFS proposes regulations that would
link the halibut PSC limit to halibut abundance for the Amendment 80
commercial groundfish trawl fleet in the BSAI groundfish fisheries.
Pacific halibut is fully utilized in Alaska as a target species in
subsistence, personal use, recreational (sport), and commercial halibut
fisheries. Halibut has significant social, cultural, and economic
importance to fishery participants and fishing communities throughout
the geographical range of the resource. Halibut is also incidentally
taken as bycatch in commercial groundfish fisheries. The Magnuson-
Stevens Act defines bycatch as fish that are harvested in a fishery,
but are not sold or kept for personal use, and includes economic and
regulatory discards. 16 U.S.C. 1802(2). The term does not include fish
released alive under a recreational catch and release fishery
management program.
The International Pacific Halibut Commission (IPHC) adopts
regulations governing the target fishery for Pacific halibut under the
Convention between the United States and Canada for the Preservation of
the Halibut Fishery of the Northern Pacific Ocean and Bering Sea
(Convention), signed at Ottawa, Ontario, on March 2, 1953, as amended
by a Protocol Amending the Convention (signed at Washington, DC, on
March 29, 1979). As provided by the Northern Pacific Halibut Act of
1982 (Halibut Act) (16 U.S.C. 773-773k), the Secretary of State, with
the concurrence of the Secretary of Commerce, may accept or reject, on
behalf of the United States, regulations recommended by the IPHC in
accordance with the Convention. The Halibut Act provides the Secretary
of Commerce with the authority and general responsibility to carry out
the requirements of the Convention and the Halibut Act. After
acceptance by the Secretary of State and concurrence by the Secretary
of Commerce, NMFS publishes the IPHC regulations in the Federal
Register as annual management measures pursuant to 50 CFR 300.62.
Section 773c(c) of the Halibut Act also provides the Council with
authority to develop regulations that are in addition to, and not in
conflict with, approved IPHC regulations. The Council has exercised
this authority in the development of Federal regulations for the
halibut fishery such as (1) subsistence halibut fishery management
measures, codified at 50 CFR 300.65; (2) the limited access program for
charter vessels in the guided recreational fishery, codified at 50 CFR
300.67; and (3) the Individual Fishing Quota (IFQ) Program for
commercial halibut fisheries, codified at 50 CFR 679.40 through 679.45.
In recent years, catch limits for the commercial halibut fishery in
the BSAI have generally declined in response to decreasing halibut
spawning biomass (though the catch limits increased slightly in 2021),
while limits on the maximum amount of halibut bycatch allowed in the
groundfish fisheries have remained the same since 2016, when they were
reduced under BSAI FMP

[[Page 75572]]

Amendment 111. The proposed rule would set annual halibut bycatch
limits, also referred to as halibut PSC limits, in the BSAI Amendment
80 sector groundfish fisheries based on halibut abundance. This
proposed approach for setting halibut PSC limits is consistent with the
requirements of the Magnuson-Stevens Act to minimize bycatch to the
extent practicable while achieving, on a continuing basis, optimum
yield from the groundfish fisheries. This section of the preamble
provides background on the halibut resource, halibut management, the
halibut fisheries, and halibut bycatch in the groundfish fisheries in
the BSAI. Sections III and IV describe the rationale and impacts of
Amendment 123 and this proposed rule.
This preamble relies on the best data available consistent with the
final Environmental Impact Statement/Regulatory Impact Review
(collectively referred to as the ``Analysis'') prepared to support this
action.

A. The Halibut Resource

Section 4.0 of the Analysis describes the stock assessment process
and IPHC management framework for halibut in Alaska. A brief summary of
section 4.0 follows.
1. Status of the Halibut Stock and Management Framework
The IPHC assesses the status of the Pacific halibut stock at a
coastwide level from California through the Bering Sea. The IPHC
assesses female spawning biomass as one important indicator of the
status of the halibut stock, including the long-term reproductive
health of the halibut resource. Female spawning biomass is composed of
female halibut of reproductive size. Generally, this includes female
halibut that are 26 inches (66.04 centimeters) in length or greater
(O26), and a small proportion of the female spawning biomass includes
female halibut less than 26 inches in length (U26).
The IPHC conducts an annual stock assessment for the coastwide
halibut stock. Currently, the stock assessment for halibut uses four
integrated age-structured models in an ensemble resulting in a single
value for the entire coast (U.S. and Canada). Migration between the
halibut management areas is not modeled. The IPHC's data indicate that
the Pacific halibut stock declined continuously from the late 1990s to
around 2012, largely as a result of decreasing size at a given age
(size-at-age), higher harvest rates in the early 2000s, and weaker
recruitment (the process by which new fish are incorporated into the
stock) than observed during the 1980s. From about 2013 to 2016, there
was a slight increasing trend in the spawning biomass, followed by a
slight decline continuing into the current assessment. In recent years,
the spawning biomass projections continue to indicate slight decreases,
even at low fishing levels, due to recent below-average recruitment.
The stock assessment models used by the IPHC in 2020 project a
decreasing female spawning biomass over the next few years assuming
continued current removal rates from all sources (see Figure 4-3 in
section 4.2 of the Analysis).
Notably, halibut is not a groundfish species under the BSAI FMP and
is instead managed under an international agreement; therefore, halibut
is not subject to provisions of the Magnuson-Stevens Act that require
the establishment of an annual overfishing limit (OFL), an acceptable
biological catch level (ABC), or a total allowable catch (TAC) limit.
Although halibut is not managed under an OFL, ABC, or TAC, the IPHC
has developed a harvest policy to control removals based on stock
abundance. In 2017, the IPHC implemented an interim spawning potential
ratio (SPR)-based harvest strategy policy while a management strategy
evaluation (MSE) process is underway. An SPR-based harvest policy
defines a default or reference level of fishing intensity to determine
mortality limits. The reference level of fishing intensity is the level
of fishing that would reduce the lifetime spawning output per recruit
to some percentage of the unfished level. That percent of the unfished
level is also dependent on current biology, fishery characteristics,
and demographics. Lower values of spawning output per recruit indicate
higher fishing intensity (see section 4.4 of the Analysis). The IPHC
MSE simulations found that a level of fishing intensity corresponding
to an SPR of 43%, in conjunction with a control rule where the fishing
intensity is reduced when the stock status is estimated to be below 30
percent and set to zero when stock status is estimated to be below 20
percent, would successfully meet the coastwide conservation and fishery
objective outlined by the IPHC. Additional information on the
anticipated impacts of the proposed rule on the status of halibut stock
is provided in section 5.2 of the Analysis.
The IPHC's harvest control rule reduces fishing intensity linearly
if the stock is estimated to have fallen below the 30 percent
threshold. As described in the preceding paragraph, this harvest
control rule would severely curtail removals during times of
particularly poor stock conditions. To date, the harvest control rule
has not been triggered, even during the most recent years of relatively
low exploitable biomass (see section 3.1.1.1 and section 3.1.2.1 of the
Analysis). While the harvest control rule has not been triggered, the
total mortality limits established by the IPHC have decreased
substantially, with the exception of 2021 (see Table 4-3 in the
Analysis), corresponding to the low halibut abundance conditions.
Each year, the most recent stock assessment ensemble is presented
to the IPHC as a risk-based decision matrix that combines different
catch levels and various performance metrics. The IPHC uses the interim
SPR-based approach to recommend to the Commission a coastwide
commercial catch limit, also known as a mortality limit, considering
mortality from all sources, and then distributes the mortality limit
across regulatory areas using estimates of stock distribution from the
IPHC fishery independent setline survey, relative harvest rates, and
other pertinent information. The Commission can set total mortality
limits that do not follow the harvest policy, such as to address
socioeconomic considerations.
The IPHC evaluates halibut mortalities using a combination of two
metrics: (1) the Total Constant Exploitation Yield (TCEY), which
includes harvests and incidental discard mortalities from directed
commercial fisheries, plus mortality estimates from sport, subsistence,
personal use, and estimates of non-directed discard mortality of
halibut over 26 inches; and, (2) Total Mortality, which includes all
the above sources of mortality, plus estimates of non-directed discard
mortality of halibut less than 26 inches (U26). Although U26 halibut
mortality is factored into the stock assessment and harvest strategy
calculations, the IPHC delineates U26 and O26 differently for the
following reasons: (1) U26 Pacific halibut are highly mobile and much
less likely to occur in the same regulatory area in the upcoming year
in which PSC limits would apply, (2) the setline survey captures almost
exclusively O26 Pacific halibut, (3) there is currently no reliable
tool for describing the annual distribution of U26 halibut across the
entire convention area, and (4) the mortality of U26 Pacific halibut
has a differing effect on the SPR than O26 fish (they are not entirely
exchangeable).
The IPHC considers the TCEY distribution among regulatory areas
based on estimates of biomass from the setline survey and relative
harvest rates, then considers recommendations from the IPHC's advisory
boards, public

[[Page 75573]]

input, and social and economic factors to potentially adjust the TCEYs
among regulatory areas. Unlike the Magnuson-Stevens Act, the Halibut
Act does not include specific provisions that require the IPHC to
allocate quotas within, for example, an overfishing threshold; the
IPHC's broad mandate is the conservation of the halibut stock.
Due to a combination of changing IPHC harvest policies and
decisions that depart from harvest policy recommendations, the IPHC has
adopted coastwide catch limits of varying fishing intensities in recent
years. The IPHC has adopted TCEYs above those recommended by the
harvest policy in three of the last five years (Table 4-1 of the
Analysis). Estimates of fishing intensity are uncertain and may change
in subsequent years based on actual mortality and new stock
assessments. Further, the specific formula used by the IPHC
Commissioners to distribute catch limits among regulatory areas has
been different for each of the past three years.
The Fishery Constant Exploitation Yield (FCEY) represents the
directed fishery limits that result from the IPHC's adopted TCEYs. To
calculate the FCEYs from the TCEYs, all sources of O26 halibut
mortality are considered, such as unguided recreational fisheries,
subsistence/personal use fisheries, and directed and non-directed
commercial fishing discard mortalities. The default projection for U26
and O26 discards is to use the three-year average of recent discard
mortality to minimize the effect of interannual variability of annual
discard estimates. (IPHC AM096). Section 4.4.1 of the Analysis contains
additional information on the process the IPHC uses to set catch
limits.
2. Allocation of Halibut Among Fisheries
Pacific halibut is allocated among fisheries by a combination of
management actions taken by the IPHC, the Council, and NMFS. The IPHC
annually completes a halibut stock assessment and makes recommendations
for annual management measures for the halibut fishery within
Convention waters. These annual management measures include specific
regulations governing the commercial halibut fishery, including area-
specific catch limits, authorized gear, and fishing season dates. In
the United States, the IPHC recommendations are subject to acceptance
by the Secretary of State with the concurrence of the Secretary of
Commerce, as described above in the ``Authority for Action'' section of
this preamble. (See sections 1.1 and 4.4.1 of the Analysis and the 2022
annual management measures for additional information on the process
for establishing commercial halibut fishery catch limits (87 FR 11626,
March 02, 2022).)
Although the halibut stock is assessed at a coastwide level,
commercial catch limits are established for each of the IPHC regulatory
areas: 2A (Washington, Oregon, and California), 2B (British Columbia),
2C (Southeast Alaska), 3A (Central Gulf of Alaska), 3B (Western Gulf of
Alaska), and 4A, 4B, 4C, 4D and 4E (BSAI). The IPHC combines Areas 4C,
4D, and 4E into Area 4CDE for purposes of establishing a commercial
fishery catch limit. Areas 4A, 4C, 4D, and 4E roughly correspond to the
Bering Sea Subarea defined in the FMP, with Area 4CDE encompassing most
of the Bering Sea Subarea in the FMP. Area 4B roughly corresponds to
the Aleutian Islands Subarea in the FMP. See Figure 15 in part 679 and
Table 1-3 in section 1.5 of the Analysis for Area maps and additional
information on halibut and groundfish management areas in the BSAI.

B. Halibut Fisheries in the BSAI

In the BSAI (Area 4) halibut is harvested primarily in directed
commercial fisheries and secondarily in subsistence, personal use, and
recreational fisheries. Based on harvest data from 2016 through 2019,
the recreational fishery operating out of ports in the BSAI harvests
approximately 12,000 lb (5.44 metric tons (mt)) in Area 4 compared to
approximately 50,000 lb (22.68 mt) of subsistence and personal use
harvest from Area 4, and more than 5,000,000 lb (2287.96 mt) in the
Area 4 commercial fishery. This action is not likely to impact the
recreational fishery. BSAI recreational effort and removals are both
very limited. Therefore, this preamble does not address the
recreational fishery in additional detail. (See sections 4.5, 5.4, and
5.5 of the Analysis for additional detail on subsistence, personal use,
recreational, and commercial halibut harvests in Area 4.)
Subsistence halibut is caught by rural residents and members of
Alaska Native tribes for direct personal or family consumption as food,
sharing for personal or family consumption as food, or customary trade.
Pursuant to section 773c(c) of the Halibut Act, the Council developed,
and NMFS implemented, the Subsistence Halibut Program to manage
subsistence harvests in Alaska. Persons fishing for subsistence halibut
must obtain a Subsistence Halibut Registration Certificate. Special
permits for community harvest, ceremonial, and educational purposes
also are available to qualified Alaska communities and federally-
recognized Alaska Native tribes. A complete description of the
Subsistence Halibut Program is provided in the final rule implementing
the Program (68 FR 18145, April 15, 2003).
In addition to subsistence harvest, IPHC annual management measures
allow halibut caught in the commercial halibut fishery that are less
than the legal size limit of 32 inches (81.28 centimeters) to be
retained for personal use in the Area 4D and Area 4E Community
Development Quota (CDQ) halibut fishery as long as the fish are not
sold or bartered. The CDQ groups are required to report the amount of
personal use halibut retained during the CDQ halibut fishery to the
IPHC. Sections 4.5.1.2 and 5.4 of the Analysis contain descriptions of
the personal use fishery.
The commercial halibut fishery in the BSAI is managed by NMFS under
the Individual Fishing Quota (IFQ) and CDQ Programs that allocate
exclusive harvest privileges. The IFQ Program was implemented in 1995
(58 FR 59375, November 9, 1993). The Council and NMFS designed the IFQ
Program to end a wasteful and unsafe ``race for fish'' and to maintain
the social and economic character of the fixed-gear fisheries and the
coastal fishing communities where many of these fisheries are based.
Access to the halibut and sablefish fisheries is limited to those
persons holding quota share (QS). Quota shares equate to exclusive
harvesting privileges that are given effect on an annual basis through
the issuance of IFQ permits. An annual IFQ permit authorizes the permit
holder to harvest a specified amount of IFQ halibut or sablefish in a
NMFS regulatory area.
The CDQ Program was established in 1992 (57 FR 54936, November 23,
1992) and amended substantially by the Coast Guard and Maritime
Transportation Act of 2006 (Pub. L. 109-241 Sec. 416; 120 Stat. 541).
Under section 305(i)(1)(D) of the Magnuson-Stevens Act, a total of 65
villages are authorized to participate in the CDQ Program. Six CDQ
groups represent these villages. CDQ groups manage and administer
allocations of crab, groundfish, and halibut to commercial fisheries
and use the revenue derived from the harvest of these CDQ allocations
to fund economic development activities and provide employment
opportunities on behalf of the villages they represent. See sections
3.3.4 and 4.5.1.2 of the Analysis for

[[Page 75574]]

additional information on the CDQ Program.
Section 305(i)(1)(B) of the Magnuson-Stevens Act specifies the
proportion of crab, groundfish, and halibut in the BSAI allocated to
the CDQ Program. Section 305(i)(1)(C) of the Magnuson-Stevens Act
specifies the proportion of the overall CDQ Program allocations
assigned to each CDQ group. Each year, NMFS publishes the specific
annual allocations to each CDQ group on the NMFS Alaska Region website
at: <a href="https://www.fisheries.noaa.gov/alaska/commercial-fishing/fisheries-catch-and-landings-reports-alaska">https://www.fisheries.noaa.gov/alaska/commercial-fishing/fisheries-catch-and-landings-reports-alaska</a>. The amount of halibut for commercial
harvest allocated to the CDQ Program varies by Area and ranges from 20
to 100 percent of the commercial catch limits assigned to Areas 4B, 4C,
4D, and 4E.
The combined CDQ and IFQ halibut fisheries in Area 4 were harvested
by, on average, approximately 120 vessels from 2015 through 2019 (see
Table 4-7 in section 4.5.1 of the Analysis). The CDQ and IFQ halibut
fisheries provide revenue to vessel owners and crew members who harvest
halibut. These fisheries also provide economic benefits to shore-based
processors and socioeconomic benefits to BSAI fishing communities that
provide support services to the halibut harvesting and processing
sectors. The Analysis estimates that halibut harvests in the Area 4 CDQ
and IFQ fisheries averaged 5.1 million lb (2,313.32 mt) annually and
generated an average of $21 million in ex-vessel revenues annually from
2015 through 2019.
However, Area 4 halibut ex-vessel revenues declined over this
period, resulting in negative economic impacts for fishery participants
and affected fishing communities. Since 2015, the Area 4 ex-vessel
value has declined by 32 percent from the peak value of $24.9 million
in 2016 to a low of $16.9 million in 2018 due to changing market
conditions, while catch levels of halibut in Area 4 have remained
relatively constant. The declines in ex-vessel value of commercial
halibut were greatest in Areas 4A and 4B. See section 4.5.1 of the
Analysis for a more detailed description of the Area 4 commercial
halibut catch, revenue, and fishery participants.

C. Comparing Commercial Halibut Catch and PSC in the BSAI Groundfish
Fisheries

In Area 4, the specific proportion of halibut removals that are
taken as catch in the commercial halibut fishery or as PSC in the
groundfish fisheries has shifted over time. From 1990 to 1996 (the
period prior to the recent peak and decline in removals in the halibut
fishery), the commercial halibut fisheries averaged 37 percent, and PSC
averaged 60 percent of total halibut removals in Area 4. From 1997 to
2011 (the period of both the greatest increase and subsequent decline
in the total removals of halibut), the commercial halibut fishery
removals increased as a portion of total removals; the commercial
halibut fisheries averaged 57 percent and PSC averaged 41 percent of
total halibut removals. From 2012 through 2014, the commercial halibut
fishery removals decreased as a portion of total removals; the
commercial halibut fishery averaged 41 percent and PSC averaged 55
percent of total removals. Halibut PSC limits were reduced in 2016, but
since 2016 the proportion of halibut removals from the commercial
halibut fishery has increased. From 2016 through 2019, the commercial
halibut fishery averaged 52 percent and bycatch averaged 47 percent of
total removals. See sections 3.4.1, 4.5.1 and 5.4.1 of the Analysis for
additional detail.

D. Halibut PSC Management in the BSAI Groundfish Fisheries

The Magnuson-Stevens Act authorizes the Council and NMFS to manage
groundfish fisheries in the Alaska EEZ that take halibut as PSC, or
bycatch. Every FMP must minimize bycatch to the extent practicable, 16
U.S.C. 1853(a)(11), and be consistent with the Act's ten national
standards, 16 U.S.C. 1851(a)(1)-(10). The groundfish fisheries cannot
be prosecuted without some level of halibut bycatch because groundfish
and halibut occur in the same areas at the same times and no fishing
gear or technique has been developed that can harvest commercial
quantities of groundfish while avoiding all halibut bycatch. The
Council has designated Pacific halibut and several other species
(herring, salmon and steelhead, king crab, and Tanner crab) as
``prohibited species'' (section 3.6.1 of the FMP). Regulations
implement the Act's requirements and require that the operator of any
vessel fishing for groundfish in the BSAI minimize the catch of
prohibited species (50 CFR 679.21(a)(2)(i)).
Halibut incidental catch rates are based on NMFS-certified
fisheries observers' estimates of halibut incidental catch in the
groundfish fishery. Discard mortality rates (DMR) are estimates of the
proportion of incidentally caught halibut that do not survive after
being returned to the sea. The cumulative halibut mortality that
accrues to a particular halibut PSC limit is the product of a DMR
multiplied by the estimated halibut PSC. DMRs are estimated using the
best scientific information available in conjunction with the annual
BSAI stock assessment process. The DMR methodology and findings are
included as an appendix to the annual BSAI groundfish SAFE report
beginning in 2022.
Although halibut PSC results from all types of gear (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. With one limited exception for Atka mackerel at 50 CFR
679.21(b)(4)(i)(A), groundfish fishing is prohibited once a halibut PSC
limit has been reached for a particular sector or season. Therefore,
halibut PSC limits are set to balance conservation of the halibut
resource with the needs of fishermen, fishing communities, and U.S.
consumers who depend on both halibut and groundfish resources.
1. Annual Halibut PSC Limits and the Amendment 80 Sector
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 for Groundfish of the BSAI
management area 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 mt.
From that total, 1,745 mt are apportioned to the Amendment 80 sector,
which is comprised of non-pollock trawl vessels (see the next sections
for more detail on the Amendment 80 sector). The BSAI trawl limited
access sector, which is comprised of all other trawl catcher/processor
and trawl catcher vessels, is apportioned 745 mt. The BSAI non-

[[Page 75575]]

trawl sector, which includes primarily hook-and-line catcher/
processors, is apportioned 710 mt. The remaining 315 mt are apportioned
to the CDQ program, which is comprised of vessels fishing for CDQ
groups.
Of those 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 this proposed action should focus on the halibut PSC limit
for the Amendment 80 sector. Several reasons drove this decision, as
discussed below.
When it 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 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 analysis of 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 limit that would
be implemented by this proposed rule based on halibut abundance
estimates derived from current survey indices described below (see
section 3.4.1 of the Analysis).
Notably, the ratio of estimated halibut PSC mortality (halibut
bycatch with the DMR applied) to actual halibut bycatch (described in
section 3.4.4 of the analysis as effective mortality) declined from
2015 through 2019. A slight uptick in effective mortality in 2020 was
an artifact of greatly reduced halibut bycatch; that is, the reduced
bycatch resulted in a slight increase in the ratio of mortality to
bycatch. While many variables may have contributed to that relative
decline, section 3.4.1 of the Analysis provides a compelling
correlation between effective mortality and halibut deck sorting
effort, which allows halibut to be returned to the sea more quickly
thereby reducing mortality. Deck sorting efforts were increasingly
employed by the Amendment 80 sector beginning in 2015. Thus, the
Council and NMFS's concerns in 2015 over a potential lack of effective
tools to reduce mortality and the practicability of meeting more
stringent PSC limit reductions at that time have significantly been
alleviated, at least with respect to the Amendment 80 sector, as
evidenced by successful halibut mortality reductions. This proposed
rule and BSAI FMP Amendment 123 represent the continuation of the
Council's and NMFS's intent, as envisaged at the time of adoption of
Amendment 111, to further reduce halibut bycatch and mortality and link
halibut PSC limits to halibut abundance.
At its February 2020 meeting, the Council elected to focus its next
step in halibut bycatch reduction on the Amendment 80 fleet. The
Council's rationale was based on several factors: (1) the Amendment 80
fleet halibut bycatch and mortality comprised the largest proportion of
the BSAI halibut PSC; (2) halibut bycatch in some other sectors had
been or was being addressed under separate actions, e.g., the trawl
limited access (TLAS) halibut PSC, the second largest portion of
halibut PSC, is mainly taken in the directed Pacific cod and yellowfin
sole fisheries, and halibut bycatch in the BSAI TLAS yellowfin sole
fishery was addressed under BSAI FMP Amendment 116 (83 FR 49994,
October 4, 2018), and the Council has recommended to NMFS a Pacific Cod
Trawl Cooperative Program (PCTC) which will address halibut bycatch in
the directed Pacific cod fishery; (3) other sectors were removed from
this action (e.g. freezer longline, catcher vessel hook-and-line, CDQ)
because they are apportioned a relatively small proportion of the
annual halibut PSC limit compared to the first two sectors; and (4) a
step-wise approach by sector allowed for a simplified and more
efficient approach. Because this proposed action directly impacts only
the Amendment 80 sector's halibut PSC, no further discussion of the
other sectors is provided in this preamble. That said, the Council has
indicated that it may consider additional action to reduce other
sectors' halibut PSC in addition to the past and present actions noted
above.
Fishing under the Amendment 80 Program began in 2008 (72 FR 52668,
September 14, 2007). The Amendment 80 sector comprises trawl vessels in
the BSAI active in groundfish fisheries other than Bering Sea pollock.
The Amendment 80 species are identified in regulation (50 CFR 679.2) as
the following six 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 TACs of these species between the Amendment 80 fleet and other
fishery participants. The Amendment 80 Program also allocates 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 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
and PSC limits.
The Amendment 80 sector includes vessels that focus primarily on
flatfish (i.e., flathead sole, rock sole, and yellowfin sole) and
vessels that focus on Atka mackerel. In 2020, 22 fishing permits were
issued to vessels in the Amendment 80 sector. Overall, 56 percent of
the Amendment 80 sector's QS units were for flatfish (i.e., flathead
sole, rock sole, and yellowfin sole), 29 percent were for Aleutian
Island Pacific ocean perch or Atka mackerel, and 15 percent were for
Pacific cod. Section 3.3 of the Analysis provides more detailed
information on Amendment 80 sector participants, harvests, and revenues
in the BSAI groundfish fisheries.
Annually, each Amendment 80 QS holder elects to participate in
either a cooperative or the Amendment 80 limited access fishery.
Participants in the Amendment 80 limited access fishery do not receive
an exclusive harvest privilege for a portion of the TACs allocated to
the Amendment 80 Program. Since 2011, the Amendment 80 sector has been
prosecuted exclusively by vessels operating as part of a cooperative,
and all QS holders have participated in one of two cooperatives. From
2011 to 2017 there were two cooperatives; since 2017, all active
Amendment 80 vessels are part of a single cooperative, the Alaska
Seafood Cooperative (AKSC).

[[Page 75576]]

As specified in section 3.7.5.2 of the FMP and at 50 CFR 679.91,
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 50 CFR 679.91. Amendment 80
cooperatives are responsible for coordinating members' fishing
activities to ensure the cooperative halibut PSC allocation is not
exceeded. 50 CFR 679.91(h)(3)(xvi) prohibits each Amendment 80
cooperative from exceeding the halibut PSC limit specified on its
annual Amendment 80 Cooperative Quota (CQ) permit. The regulations
further specify that each member of the Amendment 80 cooperative is
jointly and severally liable for any violations of the Amendment 80
Program regulations while fishing under the authority of an Amendment
80 CQ permit.
In a year when there are vessels participating in the Amendment 80
trawl limited access fishery, NMFS apportions the halibut PSC limit for
that fishery among the following six fishery categories: (1) yellowfin
sole, (2) rock sole/flathead sole/``other flatfish,'' (3) Greenland
turbot/arrowtooth flounder/Kamchatka flounder/sablefish, (4) rockfish,
(5) Pacific cod, and (6) pollock/Atka mackerel/``other species,'' which
includes the midwater pollock fishery (see 50 CFR 679.21(e)(3)(i)(B),
(e)(3)(ii)(C), and (e)(3)(iv)).
NMFS manages the Amendment 80 trawl limited access fishery halibut
PSC allowances, because participants in the Amendment 80 trawl limited
access fishery do not have exclusive privileges to use a specific
amount of halibut PSC. To manage halibut PSC, NMFS monitors
participation and PSC use in the Amendment 80 trawl limited access
fishery categories. As noted above, except for the pollock/Atka
mackerel/other species fishery, NMFS is authorized to close directed
fishing for a trawl fishery category in the Amendment 80 trawl limited
access fishery if NMFS concludes that the fishery category will or has
exceeded its halibut PSC allowance. NMFS enforces a halibut PSC
allowance through the prohibition against conducting any fishing
contrary to an inseason action, closure, or adjustment (50 CFR
679.7(a)(2)).
Section 3.3 of the Analysis and the final rule implementing the
Amendment 80 Program (72 FR 52668, September 14, 2007) provide more
detailed information on the process NMFS uses to assign Amendment 80
species and halibut PSC to each Amendment 80 cooperative and the
Amendment 80 limited access fishery. The current allocations of
Amendment 80 species TACs and apportionments of halibut PSC to each of
the Amendment 80 cooperatives were provided in the final 2022 and 2023
harvest specifications for the BSAI groundfish fisheries (87 FR 11626,
March 2, 2022).
The Amendment 80 groundfish fisheries provide revenue to Amendment
80 vessel owners and crew members who harvest and process groundfish.
In addition, the fisheries provide socioeconomic benefits to
communities that provide support services for Amendment 80 vessel
operations. Amendment 80 groundfish harvests in the BSAI averaged
289,000 mt and generated an average of $334 million in wholesale
revenues annually from 2015 through 2020. Catches of yellowfin sole and
Atka mackerel provided over 50 percent of the wholesale revenue for the
Amendment 80 sector from 2015 through 2020. Pacific cod, rock sole, and
Pacific Ocean perch were also major sources of revenue for the
Amendment 80 sector during those years. See section 3.3.2 of the
Analysis for more detail on Amendment 80 catch and revenue.
The halibut PSC limit established for each BSAI groundfish sector
is an upper limit on halibut PSC in that sector for each year. However,
the amount of halibut PSC used by a BSAI groundfish sector is almost
always less than its halibut PSC limit. Halibut PSC use is less than
the halibut PSC limit due to a wide range of operational factors,
including the fleet's desire to avoid a closure or an enforcement
action if a PSC limit is reached. By regulation (50 CFR 679.21(b)) the
current PSC limit of halibut caught while conducting any fishery in the
Amendment 80 sector is an amount of halibut equivalent to 1,745 mt of
halibut mortality, which includes the application of the DMR. To
monitor halibut bycatch mortality, the NMFS Alaska Region uses observed
halibut incidental catch rates, halibut DMRs, and estimates of
groundfish catch to project when a fishery's halibut bycatch mortality
allowance will be and is reached.
Table 3-19 in the Analysis compares Amendment 80 halibut catch and
PSC mortality to other BSAI groundfish sectors from 2010 through 2019.
In 2020, the Amendment 80 sector recorded 2,031 mt of halibut bycatch
and was credited with 1,097 mt of halibut PSC mortality, which was the
lower than any annual total during the analyzed period (2010 through
2019) (see section 3.4.1 and Figure 3-25 in the Analysis for more
detail). Examining trends in Amendment 80 halibut PSC and PSC mortality
is complicated by the fact that many variables that affect these
metrics have changed in recent years. PSC limits, DMR estimation
methods, and halibut handling procedures have all changed to varying
degrees since 2010. Section 3.4.4 of the Analysis describes methods the
Amendment 80 sector has pursued to reduce its halibut PSC mortality.
Section 3.3 of the Analysis describes the annual variations in halibut
PSC use. Regulations were implemented in 2019 (50 CFR 679.120) to
standardize catch handling and monitoring requirements to allow halibut
bycatch to be sorted on the deck of trawl catcher processors and
motherships participating in the non-pollock groundfish fisheries off
Alaska (84 FR 55044, October 15, 2019). Historical information shows
that the Amendment 80 sector's PSC use has varied annually in response
to a variety of changing conditions. NMFS anticipates that these annual
variations in halibut PSC use would continue under this proposed
action.

III. Rationale and Impacts of Amendment 123 and the Proposed Rule

Amendment 123 and the proposed rule reflect requirements that NMFS
balance several factors when establishing PSC limits. The Council and
NMFS considered the detailed information provided in the Analysis,
including the impacts from several action alternatives with different
halibut PSC limits, 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, like the Amendment 80 sector, and
communities that are engaged in the BSAI groundfish fisheries. In
developing the proposed action, the Council and NMFS aimed to
appropriately balance the Magnuson-Stevens Act's requirements and
national standards, particularly the requirements to establish
conservation and management measures that minimize bycatch to the
extent practicable, achieve optimum yield on a continuing basis, and
take into account the importance of fishery resources to fishing
communities. Section 5.3.2.3.1 of the Analysis provides additional
detail on the balancing of the national standards. The Council
believes, and NMFS agrees, that the proposed PSC limit reductions are
consistent with the national standards and other Magnuson-Stevens Act
requirements.
Halibut is fully utilized in the BSAI. Therefore, consistent with
the Council's purpose and need statement for this

[[Page 75577]]

action to prevent halibut PSC from becoming a larger proportion of
total halibut removals in the BSAI, the Council recommended, and NMFS
agrees, that PSC limits should decline in proportion to reduced amounts
of halibut available for harvest by all users. The proposed 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 consistent with
the IPHC management approach for the directed commercial halibut
fisheries off Alaska, which establishes annual catch limits that vary
with halibut abundance as discussed above.
The proposed action would specify halibut PSC limits for the
Amendment 80 sector based on the combined results of the most recent
annual IPHC setline survey and the NMFS Alaska Fisheries Science Center
(AFSC) Eastern Bering Sea (EBS) shelf trawl survey (EBS shelf trawl
survey). Results of the EBS shelf trawl 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. Relative abundance (catch per unit effort) and size and/or age
composition data are key results from this survey. The survey covers
Pacific halibut in addition to other groundfish and crab target
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. The EBS shelf trawl survey is generally
described in a NOAA Technical Memo (Stauffer, 2004). When used
together, the EBS shelf trawl survey and IPHC setline survey indices
capture abundance trends for both O26 and U26 halibut.
After considering these factors, the Council recommended, and NMFS
proposes, to specify halibut PSC limits for the Amendment 80 sector
linked to halibut abundance indices. In any given year, results from
the most recent IPHC setline survey index for halibut in Area 4ABCDE
would be categorized into one of four ranges: very low, low, medium, or
high. Annual results from the EBS shelf trawl survey index for halibut
would be categorized into one of two ranges: high or low.
This proposed action would establish an index table that specifies
a halibut PSC limit for each of several specified halibut abundance
ranges, or survey index states, that may result from the annual IPHC
setline and AFSC EBS shelf trawl surveys. Each year, the intersect of
the most recent results from each survey in the proposed index table
would establish the annual halibut PSC limit for the Amendment 80
sector. Those limits would range from the current Amendment 80 halibut
PSC limit when abundance is high in the IPHC setline survey to 35
percent below the current limit when abundance is very low in the IPHC
setline survey. This is within the range of alternative halibut PSC
limits analyzed for this action in the Analysis (i.e., between 15
percent above the current limit and 45 percent below it).
To illustrate how linking PSC limits to halibut abundance would
work in practice, an example using 2021 data follows. Based on the
halibut abundance values from the 2021 setline and EBS shelf trawl
survey abundance indices in the proposed index table, a 1,309 mt PSC
limit for the Amendment 80 sector would apply. This constitutes a 25
percent reduction from the 1,745 mt limit currently in regulation and
is 37 mt under the sector's average halibut PSC levels from 2016
through 2019. Use of the index table to arrive at PSC limits, as in the
above example, is appropriate, because it varies the allowable halibut
PSC at several intervals roughly in proportion to halibut abundance,
while accounting for the inter-annual variability in the Amendment 80
sector's encounters with halibut and resulting halibut PSC mortality.
Amendment 80 ``halibut encounters'' is a term used to describe
halibut bycatch before a DMR is applied, meaning both the amount of
halibut returned to the sea that is expected to survive and the amount
expected to result in mortality (halibut PSC use). Amendment 80 halibut
encounters from 2016 through 2020 were between 1,965 mt and 3,067 mt,
and PSC mortality was between 1,097 mt and 1,461 mt. The period from
2016 through 2020 considered in the Analysis is appropriate to evaluate
halibut PSC use because it reflects Amendment 80 sector operations
under the existing Halibut Avoidance Plan (an industry-developed best
practices guide to aid in halibut avoidance), deck sorting, and other
available tools to avoid halibut and reduce halibut mortality. PSC data
for 2021 was not considered in the Analysis because Amendment 80
fishing operations, along with other fisheries in Alaska, were more
greatly affected in 2021 by COVID-19 mitigation measures and
international supply chain and market disruptions in harvesting,
processing, and shipping than they were in 2020.
The following sections of the preamble further describe the
rationale for this action and its impacts on the halibut stock, the
directed halibut fishery and fishing communities, and the BSAI
groundfish fishery participants and fishing communities. Sections 5.2
and 5.3 of the Analysis provide additional details.

A. Methods for Analysis of Impacts

In order to analyze the impact of the proposed rule and other
alternatives considered, the Analysis is predicated on two broad ideas.
First, the IPHC has a mandate under the Convention to ``permit the
optimum yield from the fishery and to maintain the stocks at those
levels'' and the IPHC's management procedures are designed to achieve
that. The IPHC is not required to strictly apply its stated management
procedures, and marginal, short term adjustments have been made that do
not materially affect the long term sustainability of the halibut
resource. The Analysis prepared for this proposed rule assumed the IPHC
would maintain its stated management procedures; thus, those management
procedures were used as the best available method for analyzing the
effects of Amendment 123, including the preferred alternative that
would be implemented under this proposed rule. That assumption was made
because possible changes in those management procedures, or the
specific commercial catch limits that will actually be adopted by the
IPHC, cannot be known or predicted with certainty. Finally, it is
reasonable to conclude that even marginal adjustments similar to the
recent past would not significantly change the conclusions of the
Analysis.
Second, the estimates from the EBS shelf trawl survey and the IPHC
setline survey are relative indices and are not absolute estimates. The
relative difference between estimates in each year (i.e., the trend) is
the important outcome of the survey estimates. Changed or improved
methods in either survey, should any be employed in the future, would
likely result in changes to annual estimates for the entire survey
time-series. As such, absolute values derived from each survey index
are dependent on the assumptions of the survey design and data
analysis, whereas a standardized index that indicates the trend could
show less year-to-year variability. However, basing an index table on
standardized trend 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

[[Page 75578]]

Amendment 80 PSC limit Therefore, in the interest of greater
transparency to the public and in regulation, the Council and NMFS
chose to use absolute values derived from the surveys, rather than a
standardized index, recognizing that these historical values could
change in the future. This is similar to how PSC limits for other PSC
species are presently set in the BSAI.

B. Impacts on the Halibut Stock

The Council and NMFS considered the impacts the proposed rule would
have on the halibut stock as detailed in the Analysis. While reducing
halibut bycatch mortality is a conservation measure, the Analysis
concluded that, under all the alternatives considered, the impact on
exploitable, coastwide halibut biomass and the halibut female spawning
biomass was not likely to be significant. This is because the halibut
resource in the BSAI is fully utilized, and the Council and NMFS assume
that, under this proposed action, a dynamic balance between halibut
allocated to directed halibut fisheries by the IPHC on one hand and PSC
limits assigned to the Amendment 80 fleet (plus fixed halibut PSC
limits for other sectors) on the other, would always result in full
utilization, but not over-utilization of the halibut resource.
According to the Analysis section 5.2, the IPHC's SPR-based management
approach is expected to conserve spawning biomass across differing
patterns in fishery selectivity and/or allocation among different
fisheries. As such, there is likely to be little difference among the
average future halibut spawning biomass under levels of PSC anticipated
across all of the alternatives considered, including the proposed
action.
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 setline survey results 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 consistency
with the abundance-based process for establishing directed halibut
fishery catch limits.

C. Impacts on Directed Halibut Fishery Participants and Fishing
Communities

In recommending the proposed rule, the Council and NMFS considered
the impacts of reducing halibut PSC limits on fishermen and fishing
communities that depend on the halibut resources in the BSAI, as well
as in other Areas in Alaska and the Pacific Northwest, including the
commercial, subsistence, personal use, and recreational fisheries (see
sections 5.4 and 5.5 of the Analysis).
Near-term benefits of the proposed action to fishermen and
communities dependent on the directed fishery in the Bering Sea may
include accrual of fewer O26 halibut caught as PSC by the Amendment 80
sector. The current IPHC interim harvest policy subtracts the projected
O26 portion of non-directed discard mortality (bycatch) from the TCEY
by Area when calculating fishing limits. A portion of these halibut
would be available to the commercial halibut fishery participants in
the area that the PSC mortality is forgone in subsequent years or when
the fish reach the legal size limit for the commercial halibut fishery
(greater than or equal to 32 inches (81.28 centimeters) in total
length). But, as shown in section 3.4 of the Analysis, the relationship
between the PSC limit and PSC use varies; therefore, a reduction in the
PSC limit may not always generate an increase in directed fishery catch
limits in the short term. Even when it does, the magnitude may vary
based on the actual Amendment 80 O26 PSC mortality.
The Analysis indicates that under the assumption of a 0.5 ratio for
the Amendment 80 PSC limit to the directed catch limit, which is close
to the 2010 through 2019 average proportion of O26 halibut in PSC
mortality (~ 45 percent), directed commercial halibut catch limits
could increase by approximately 360,000 lb (163.29 mt) under the 1,309
mt Amendment 80 PSC limit that would be established under the proposed
action at the low/low state (the current state of the halibut stock
survey indices). NMFS assumes that directed commercial halibut catch
limits could increase under the 1,134 mt PSC limit that would be
established under the proposed action at the very low/low state.
Anticipated benefits to the directed commercial halibut fishery
from the proposed Amendment 80 PSC limits also include longer term
benefits from reductions in the U26 portion of the bycatch. Reduced
mortality of smaller halibut could provide benefits for the directed
fishery in the Bering Sea and elsewhere as these halibut migrate and
recruit to legal size. The directed halibut fishery in Area 4CDE would
have the greatest potential for experiencing any incidental
reallocative effects that may occur under the proposed action. The
provision of additional opportunities for the directed halibut fishery
that may accompany PSC limit reductions would be determined by IPHC
management processes, (see section 5.4 of the Analysis). However, there
is no guarantee that this action would translate into increased
opportunities for the directed fishery since the IPHC is not obligated
to alter, maintain, or implement their current harvest strategies based
on the outcome of this action.
Sport halibut harvests, including guided and unguided sport/
recreational halibut fisheries, could indirectly benefit from the
implementation of the proposed action. That is, if reducing BSAI
halibut PSC limits under low abundance conditions were to ultimately
result in an overall improvement in availability of halibut for sport
harvest, an accompanying decrease in effort and expense in harvesting
halibut for sport use, and/or an increase in interest in halibut sport
fishing in the region prompted by an increasing abundance of larger
halibut. These indirect benefits could occur if the overall Pacific
halibut stock benefits from additional promotion of conservation of the
stock under the proposed action.

D. Impacts on Amendment 80 Participants and Fishing Communities

The proposed action would have differing impacts on Amendment 80
companies, and changes to fishing plans and operations would be needed
to adjust to the reduction in halibut PSC limits under different survey
abundance index states, with more significant changes required at lower
abundance states. 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, although the Analysis
projects that the fleet will forgo some amount of profitability to
reduce halibut mortality further. Reductions in halibut mortality are
expected to result from changes in fishing operations that cause the
sector to increase operating costs and/or reduce efficiency. The amount
of mortality reduction cannot be quantified with certainty.
When the halibut PSC limits constrain target catch and Amendment 80
firms are required to implement more measures to reduce halibut
mortality, operating costs may increase and revenue may decrease making
annual net revenue more volatile. This could result in increased
consolidation of the Amendment 80 sector and the Cooperative Quota
(CQ). Firms that are less efficient at addressing halibut

[[Page 75579]]

bycatch experience less profitability and may sell to firms that are
more efficient, derive more revenue from other fisheries to provide
revenue during years halibut is a constraint, or have access to more
cash reserves than the sellers. Firms that cannot remain viable under
the new conditions would eventually exit the fishery. Current Amendment
80 ownership and control limits leave room for one firm to exit the
fishery, because a person may not individually or collectively hold or
use more than 30 percent of the aggregate Amendment 80 Quota Share
units initially assigned to the sector. The number of vessels in the
fishery could be reduced to a minimum of five, because an Amendment 80
vessel may not be used to catch an amount of species greater than 20
percent of the aggregate Amendment 80 sector's species initial Total
Allowable Catch (ITAC). While the number of vessels could decline, NMFS
does not anticipate a decrease to the vessel minimum, because the fleet
would still need sufficient capacity to harvest the CQ that can be
supported by the available halibut PSC mortality limit. For complete
discussion of impacts to the Amendment 80 sector, see section 5.3.2 of
the Analysis.
Multiple coastal communities in the BSAI, as well as coastal
communities elsewhere in Alaska and the Pacific Northwest, participate
in the BSAI groundfish fisheries in one way or another, such as being
homeport to participating vessels, the location of processing
activities or product transfers, the location of fishery support
businesses, the home of employees in the various sectors, or as the
base of ownership or operations of various participating entities. An
analysis of community engagement in and dependency on the Amendment 80
fishery is provided in appendix 1 (the Social Impact Assessment) of the
Analysis. An analysis of the alternatives suggests that reductions in
PSC limits could constrain the Amendment 80 sector under some
conditions and consequently may impact the communities that depend on
those fisheries. It is also important to note that some communities are
substantially engaged in or substantially dependent on both the
Amendment 80 fishery and the Area 4 directed halibut fishery, and thus
may experience both negative and positive effects from this action.
Consequently, a simple characterization of potential incidental
reallocative effects to halibut dependent communities would not capture
the complexity of overall impacts to those communities, much less the
range of potential impacts to individual harvesters, processors, and/or
fishery support businesses in those communities which may ultimately
result from changes in Amendment 80 PSC limits.
As described in section 5.5 of the Analysis, reduced halibut PSC
mortality relative to the status quo may indirectly benefit fishing
communities that depend upon commercial and noncommercial halibut
harvest, though the magnitude of that effect is likely to be attenuated
by multiple biological factors and policy steps that separate bycatch
mortality savings from directed harvest opportunities. Conversely,
communities engaged in the Amendment 80 sector groundfish fisheries
could be adversely impacted on a more direct basis.
The Seattle-Tacoma-Bellevue Washington Metropolitan Statistical
Area (Seattle MSA) is substantially engaged in the Area 4 directed
halibut commercial fishery as measured by ownership address of actively
participating catcher vessels, among other indicators of engagement.
However, compared to Alaska communities, its engagement in the BSAI
halibut fishery is not as dominant as it is in the BSAI groundfish
fisheries, which are likely to be most directly affected by the
proposed action alternatives. No community level adverse impacts
related to the BSAI halibut fishery are anticipated to the Seattle MSA
under the proposed action.

E. Rationale for Amendment 123 and the Proposed Rule and Consistency
With Magnuson-Stevens Act National Standards

The Council and NMFS believe that linking Amendment 80 halibut PSC
limits to halibut abundance levels as proposed in this rule: (1) will
ensure that halibut PSC mortality in Amendment 80 fisheries does not
become a greater share of overall halibut removals in the BSAI,
particularly in Area 4CDE; (2) will create a more equitable approach
between competing users; and (3) may increase halibut harvest
opportunities in directed halibut fisheries. In short, the proposed
rule is reasonably calculated to promote conservation of the halibut
resource, improve its management, and create a more equitable
distribution process between the directed and non-directed fisheries.
The Council and NMFS have concluded that Amendment 123 is
consistent with the Magnuson-Stevens Act, including the ten national
standards, and other applicable law. The Analysis contains a detailed
analysis of those standards. The Council and NMFS considered the
proposed action in context of balancing all the national standards.
Below, we highlight four of them: National Standards 1, 4, 8, and 9.
National Standard 1. The Analysis shows that, consistent with
National Standard 1, the groundfish fisheries will continue to achieve
optimum yield on a continuing basis under Amendment 123. Congress set,
and the BSAI FMP includes, the optimum yield (OY) range for the BSAI
groundfish complex as 85 percent of the historical estimate of MSY,
which results in an OY range between 1.4 and 2.0 million mt of
groundfish. The Analysis indicates that, even if the Amendment 80
sector harvested no fish, overall, the groundfish fisheries would
continue to harvest within this OY range in most years. Thus, under
National Standard 1, despite the imposition of costs on and potential
loss of a portion of harvest by the Amendment 80 sector, this action is
not expected to affect the BSAI groundfish fisheries' ability to
achieve OY on a continuing basis.
National Standard 4. To the extent that this action involves an
allocation of fishing privileges contemplated in National Standard 4,
the new PSC limits are fair and equitable. An allocation need not
preserve the status quo in the fishery to qualify as ``fair and
equitable'' if a restructuring of fishing privileges would maximize
overall benefits. The Council and NMFS considered that the potential
hardship imposed on the Amendment 80 fleet at low and very low survey
indices was, on balance, outweighed by the potential benefits from the
reduction in the Amendment 80 fleet's halibut mortality and the
potential increase in halibut availability to the directed halibut
fisheries. The action is also reasonably calculated to promote
conservation through the reduction of halibut bycatch and mortality in
the Amendment 80 fleet. Further, as the National Standard Guidelines
explain, the action promotes conservation (in the sense of wise use) by
optimizing yield in terms of the economic and social benefit of the
product. Finally, the action does not result in the acquisition of an
excessive share of any fishing privileges.
In developing this proposed action, the Council and NMFS also
considered other factors identified in the National Standard 4
guidance, including economic and social consequences, food production
(subsistence use), dependence on the fishery by present participants
and coastal communities, efficiency of various types of gear used in
the fishery, transferability of effort to

[[Page 75580]]

and impact on other fisheries, opportunity for new or past participants
to enter the fishery, and enhancement of opportunities for recreational
fishing.
National Standard 8. The Magnuson-Stevens Act's National Standard 8
and the associated NMFS Guidelines provide that conservation and
management measures shall, consistent with the conservation
requirements of the Magnuson-Stevens Act, 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: (1) provide for the sustained
participation of such communities and (2) to the extent practicable,
minimize adverse economic impacts on such communities.
When the proposed action results in lower halibut PSC mortality by
the Amendment 80 fleet than would have occurred under the current
limit, the proposed action is expected to have a positive effect on all
directed halibut fisheries (commercial, guided and unguided
recreational (sport), and subsistence), minimize adverse economic
impacts to communities dependent on those directed fisheries and, thus,
provide for the sustained participation of such communities. The
reduction in the halibut PSC limit and potential for increased
opportunities for additional halibut harvest for the directed halibut
fisheries are also expected to have positive social and environmental
justice impacts on the directed users of the halibut resource and
halibut-dependent communities, many of which are predominantly Alaska
Native communities. Those impacts are estimated in section 5.5 of the
Analysis and appendix 1 to the Analysis.
The social and cultural importance of halibut (as a species) and
halibut fishing (as a traditional activity) for Alaska Native tribes
and ethnic groups throughout Alaska is well-documented. The cultural
significance of halibut for these fishermen and their associated
communities exceeds the economic value of the fishery. Minority
populations of the seventeen Alaska communities considered BSAI
halibut-dependent range from 65 to over 90 percent of those
communities' populations. Notably, those communities' low-income
populations (residents living below the poverty threshold) comprise 10
percent to over 40 percent of the community.
While the Council does not currently set catch limits in the
directed halibut fishery, the economic, social, and cultural benefits
to Alaska communities that may result from halibut PSC reductions is
discussed in section 5.5 and appendix 1 of the Analysis. Overall
positive social and environmental justice impacts on dependent halibut
directed fishery communities would be expected as a result of this
proposed rule. In recommending the proposed action to NMFS, the Council
considered providing for the sustained participation of fishing
communities and minimizing adverse economic impacts on such
communities, consistent with National Standard 8.
National Standard 9. Section 303(a)(11) of the Magnuson-Stevens Act
and National Standard 9 generally require FMPs to include conservation
and management measures that minimize bycatch to the extent
practicable. The proposed action is intended to minimize halibut PSC in
the Amendment 80 sector to the extent practicable. What is practicable
will be determined on a case-by-case basis. According to the Merriam-
Webster Dictionary, practicable means ``capable of being done or
carried out.'' The available technology and the potential costs of
carrying out bycatch minimization measures are relevant to the
practicability determination. The practicability of the proposed PSC
reduction relative to the status quo is discussed in sections 3.4.5 and
5.3.2.3 of the Analysis. Under the high IPHC setline survey index
value, the PSC limit remains unchanged. At lower levels of halibut
abundance, some of the PSC limits may be more difficult to achieve by
the Amendment 80 fleet using currently available tools, forcing the
Amendment 80 sector to stop fishing before harvesting their entire
groundfish allocations. However, at lower halibut abundance and PSC
limits, halibut encounter rates by the Amendment 80 fleet may also be
lower. The following additional factors were taken into consideration
under National Standard 9:
Population effects for the bycatch species. The IPHC's SPR-based
management approach is expected to conserve the halibut spawning
biomass across differing patterns in fishery selectivity and/or
allocation among different fisheries. As such, there is likely to be
little difference in the average future halibut spawning biomass
coastwide under levels of PSC anticipated through this proposed action.
Although the spawning stock biomass is not expected to be affected by
this action, since halibut are a fully allocated species, reductions in
juvenile halibut mortality may occur as a result of the PSC limits
imposed by this action, particularly at low levels of abundance,
allowing greater number of larger fish to recruit into the directed
fisheries. However, the degree of change in the BSAI halibut fishery
per unit change in PSC cannot be reliably estimated.
Ecological effects. To the extent that the proposed action changes
effort in the BSAI groundfish fisheries and reduces the bycatch of
halibut in the Amendment 80 fleet, those changes are not likely to have
ecological effects on other species in the ecosystem or impacts on
ecosystem components. Nor are they likely to produce considerations
beyond those summarized in the annual Stock Assessment and Fishery
Evaluation report for the BSAI groundfish fisheries.
Effects on marine mammals and birds. The potential for incidental
take, prey availability, and disturbance of marine mammals and seabirds
may change from status quo under the proposed rule. If the Amendment 80
fleet reduces fishing effort in specific fisheries to conserve halibut
PSC and shifts to target different species, that shift in operations
may result in incrementally more or less potential for incidental take,
prey availability, and disturbance of marine mammals and/or seabirds.
If a groundfish fishery increases the duration of fishing in certain
areas, there may be more potential for incidental take, prey
availability, and disturbance in those locations if they are used by
marine mammals or seabirds. The fisheries are unlikely to increase
their take of marine mammals above the Potential Biological Removal
(PBR) levels (the maximum number of animals, not including natural
mortalities, that may be removed from a marine mammal stock while
allowing that stock to reach or maintain its optimum sustainable
population), since take numbers are currently well below PBR levels in
BSAI groundfish fisheries and no PSC limits under the proposed action
are expected to result in significant increases in total fishing effort
in the BSAI.
Changes in fishing practices and behavior of fishermen. Whether PSC
limits under the proposed rule will result in changes in fishing
practices or fishermen's behavior is unclear. As the annual PSC limit
changes in accordance with halibut abundance index states, the proposed
rule may yield no change to existing levels of PSC, or a reduced PSC
limit may result in the industry changing its fishing patterns to avoid
halibut. This could result in reduced fishing effort as the industry
chooses not to pursue fisheries associated with higher halibut
encounter rates to conserve halibut PSC, or it could result

[[Page 75581]]

in greater fishing effort at lower catch per unit effort as vessels
change fishing patterns or seasonal changes in the timing of the
fishing to increase halibut avoidance. A program that links the
Amendment 80 sector PSC limit to halibut abundance may provide
incentives for the fleet to minimize halibut mortality at all times.
Shifts in the location or timing of fishing may occur as a result of
this action. However, there is already considerable inter-annual
variability in the patterns of fishing across the Amendment 80 sector
as environmental conditions and avoidance of PSC species have caused
vessels to adjust their fishing patterns. Implementation of a lower PSC
limit will likely result in the fleet stopping fishing before the limit
is taken to avoid penalties of exceeding the hard cap. The proposed
rule also assumes that the conditions in the Amendment 80 groundfish
fishery will result in years when halibut mortality rates are lower,
because directed fishery species are more aggregated and avoiding
halibut bycatch is easier.
Changes in research, administration, enforcement costs, and
management effectiveness. By law, NMFS is required to recover the
actual costs of management, data collection, and enforcement directly
related to any Limited Access Privilege Program and the CDQ program.
This action could change halibut PSC limits that could impact the value
of fisheries subject to cost recovery. Changes to direct program costs,
fishery value, or both, could alter the cost recovery fee percentage
due. However, it is not possible to quantitatively estimate the
potential impact of this action on cost recovery fee percentages, given
the wide variety of factors that affect the direct program costs and
the value of a fishery. But it is reasonable to assume that the larger
the change in PSC limit from status quo under this proposed action, the
greater the potential impact to fishery value and fee percentage due.
When the proposed action results in a reduction to halibut PSC
limits, it may increase, among some operators, the economic incentives
to attempt to bias halibut PSC data. The Alaska Division of NOAA Office
of Law Enforcement (OLE) has identified recent increases in reports of
harassment, intimidation, hostile work environment, and other attempts
to bias observer samples of PSC in the Amendment 80 sector. The
Amendment 80 sector has one of the highest rates of interpersonal
issues report by observers (0.49 per assignment). A further reduction
of the halibut PSC limit for this sector may result in additional
coercive behavior toward observers and attempts to bias their sampling.
NOAA OLE's recent outreach efforts in conjunction with the recent
implementation of another recent halibut action, halibut deck sorting,
could be used as a model to address these concerns. Specifically,
successful outreach from NOAA OLE after the implementation of halibut
deck sorting, followed by routine boardings, served as a useful way for
vessels to report problems they might be having with new regulations.
Those efforts appeared to encourage communication and self-reporting by
the vessels, and may be employed by NOAA OLE during implementation of
this proposed action.
This proposed rule would change PSC limits annually for the
Amendment 80 sector based on the proposed Table 58 that would be
included in regulation. Thus, the use of the table would obviate the
need for the Council to take action each October or December to specify
the PSC limit for the following year.
Changes in fishing, processing, disposal, and marketing costs;
changes in economic, social, or cultural value of fishing activities;
and changes in non-consumptive uses of fishery resources, including
distribution of costs and benefits. The Analysis notes that the
Amendment 80 sector will incur higher costs to avoid halibut to
maximize harvest of Amendment 80 species TACs with any reduction in the
halibut PSC limit, and such costs are assumed to increase as the survey
index states decrease. The precise extent to which these costs would
affect groundfish harvests and negatively impact the Amendment 80
sector is unknown. The analysis demonstrates that the lower halibut PSC
limits may result in reduced groundfish harvests and revenues for the
Amendment 80 sector. The analysis also notes that the impacts of this
action on the different Amendment 80 companies are likely to vary given
the diversity of their respective quota holdings of different target
stocks (See section 3.3 of the Analysis). Positive impacts may occur
for some Amendment 80 suppliers (fuel, excluder manufacturers, etc.)
and for suppliers to the directed halibut fisheries, if the proposed
rule results in increased commercial, charter, unguided sport, or
subsistence harvests. Some negative impacts may occur for suppliers to
the Amendment 80 fleet (e.g., suppliers of packaging material) that
lose business as a result of the action.
Overall, economic producer surplus--that is, the difference between
the minimum the producer would be willing to sell for and what the
producer actually sells its goods for--is expected to be negatively
affected, depending on future conditions of halibut abundance, which is
unknown. This is because the expected reductions in the Amendment 80
producer surpluses would not be expected to be offset by economic
increases in producer surpluses due to increased catch in the directed
halibut fisheries.
Changes in social, or cultural value of fishing activities, and
changes in non-consumptive uses of fishery resources, including
distribution of costs and benefits were considered in evaluating the
proposed rule's consistency with National Standard 9. These factors are
described in other sections of this preamble, including under impacts
to directed halibut fisheries and communities and discussion of
consistency of the proposed rule with National Standards 4 and 8.
On balance, the Council and NMFS determined that reducing halibut
mortality from bycatch in the Amendment 80 fleet is warranted in light
of the above factors, the Magnuson-Stevens Act's requirements, and
other legal requirements. The Council and NMFS concluded that the total
benefits of the halibut PSC reduction outweigh its costs.

IV. The Proposed Rule

The Council took final action to base the annual halibut PSC limit
for the Amendment 80 sector on halibut abundance under Amendment 123.
Here, NMFS proposes regulations to implement that amendment and
establish a process to set the annual halibut PSC limit for the
Amendment 80 sector, namely, by linking it to annual survey indices.
This proposed rule would accomplish the following:
<bullet> Specify that BSAI halibut PSC for the Amendment 80 sector
be determined annually.
<bullet> Specify that halibut biomass estimates derived from
results of the most recent IPHC setline survey and the AFSC EBS shelf
trawl survey be applied to a specified set of index ranges for each
survey to establish the BSAI halibut PSC limit for the Amendment 80
sector for the following year.
<bullet> Specify that each year the Amendment 80 sector halibut PSC
limit will be included in the proposed and final rules for the annual
harvest specifications for the BSAI.
Turning to the affected regulations, 50 CFR 679.21 describes
prohibited species bycatch management procedures: paragraph (b)(1)
establishes BSAI halibut PSC limits for the Amendment 80 sector. To
establish the annual process for determining BSAI halibut PSC limit for
the Amendment 80 sector,

[[Page 75582]]

this proposed rule would revise 50 CFR 679.21.
The proposed rule would revise paragraph (b)(1) by adding
paragraphs (b)(1)(i)(A) through (C) to establish the process for
determining the annual BSAI halibut PSC limits for the Amendment 80
sector, including Amendment 80 cooperatives and the Amendment 80
limited access fishery. The proposed rule would specify that halibut
biomass estimates derived from results of the most recent IPHC setline
and the AFSC EBS shelf trawl surveys be applied to a specified table of
index ranges for each survey (proposed Table 58). The value at the
intercept of those survey indices within the table would be the BSAI
halibut PSC limit for the Amendment 80 sector for the following year.
The annual limit would be published in the draft and final harvest
specifications each year.
The proposed rule would also revise 50 CFR 679.91, which
establishes Amendment 80 Program annual harvester privileges and the
process for assigning halibut PSC to the Amendment 80 sector,
cooperatives, and limited access fishery. The proposed rule would
revise paragraphs (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), replacing the references in those paragraphs to
Table 35 to this part that stipulates the annual fixed amount of 1,745
mt for the Amendment 80 sector as a whole.
NMFS would modify 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 would be
determined annually, rather than set at a fixed amount. NMFS would add
Table 58 to Part 679--Amendment 80 Sector Annual BSAI Pacific Halibut
PSC Limits to establish the IPHC setline and the AFSC EBS shelf trawl
survey index ranges in a table with the corresponding PSC limit at the
intercepts of each survey range.

V. Classification

Pursuant to sections 304(b)(1)(A) and 305(d) of the Magnuson-
Stevens Act, the NMFS Assistant Administrator has determined that this
proposed rule is consistent with Amendment 123, other provisions of the
Magnuson-Stevens Act, and other applicable laws, subject to further
consideration after public comment period.
This proposed rule has been determined to be not significant for
the purposes of Executive Order (E.O.) 12866.

A. Regulatory Impact Review (RIR)

An RIR was prepared and incorporated in the final EIS to assess the
costs and benefits of available regulatory alternatives. A copy of this
analysis is available from NMFS (see ADDRESSES). NMFS is recommending
Amendment 123 and the regulatory revisions in this proposed rule to
minimize potentially adverse economic impacts on benefits to the
Nation. Specific aspects of the economic analysis related to the impact
of this proposed rule on small entities are discussed below in the
Initial Regulatory Flexibility Analysis (IRFA) section.

B. Initial Regulatory Flexibility Analysis (IRFA)

This IRFA was prepared for this proposed rule, as required by
section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 603), to
describe the economic impact this proposed rule, if adopted, would have
on small entities. The IRFA is required to describe why this action is
being proposed; the objectives and legal basis for the proposed rule;
the number of small entities to which the proposed rule would apply;
any projected reporting, recordkeeping, or other compliance
requirements of the proposed rule; any overlapping, duplicative, or
conflicting Federal rules; and any significant alternatives to the
proposed rule that would accomplish the stated objectives, consistent
with applicable statutes, and that would minimize any significant
adverse economic impacts of the proposed rule on small entities.
Descriptions of this proposed rule, its purpose, and the legal basis
are contained earlier in this preamble and are not repeated here.
1. Number and Description of Small Entities Regulated by This Proposed
Rule
NMFS has determined that vessels that are members of a fishing
cooperative are affiliated when classifying them for the RFA analysis.
In making this determination, NMFS considered the Small Business
Administration (SBA) ``principles of affiliation'' at 13 CFR 121.103.
Specifically, in 50 CFR 121.103(f), SBA refers to ``[a]ffiliation based
on identity of interest,'' which states that 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 also affects the six Western Alaska CDQ entities 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 proposed 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 depend 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 for all affiliated operations worldwide. 50 CFR 200.2.
Businesses classified as primarily engaged in fish processing are
considered small entities if they employ 750 or fewer persons on a
full-time, part-time, temporary, or other basis at all affiliated
operations worldwide. Since at least 1993, NMFS Alaska Region has
considered catcher/processors to be predominantly engaged in fish
harvesting rather than fish processing. Under this classification, the
threshold of $11.0 million in annual gross receipts is appropriate.
One additional vessel, the Golden Fleece, has been identified as a
potentially directly regulated small entity based on revenue analysis.
The Golden Fleece is Amendment 80-eligible but has chosen not to
utilize its right to an Amendment 80 permit. Thus,

[[Page 75583]]

it is not Amendment 80 cooperative-affiliated or Amendment 80
ownership-affiliated, as it is an independent company. The Golden
Fleece is a member of a marketing cooperative called Golden-Tech
International, Inc. This cooperative markets the catch of several
Amendment 80 catcher/processors; however, NMFS does not have access to
information regarding contractual relationships necessary to determine
whether membership in this marketing cooperative also affiliates the
Golden Fleece with Amendment 80 vessels. Therefore, the Golden Fleece
is considered to be the only small entity directly regulated by this
action. However, since the Golden Fleece has not participated in the
Amendment 80 fishery, it is not possible to quantify adverse impacts
other than to acknowledge that the proposed rule may constrain its
halibut PSC limits should it choose to do so in the future. In times of
lower halibut abundance, that constraint may mean that there is not
adequate PSC quota to allocate to the Amendment 80 limited access
fishery to allow a directed fishery to be opened by NMFS in-season
management should the Golden Fleece choose to register for that
fishery. Were the Golden Fleece to register in the Amendment 80 fishery
as a cooperative of one, their ability to fish would be similarly
constrained by the potentially lower halibut PSC limit.
In sum, based on the foregoing analysis, NMFS preliminarily
determines that there is one catcher/processor entity, the Golden
Fleece, that may be considered small and would potentially 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, 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
corporation owning the LLPs is the proper consideration for determining
whether a substantial number of directly regulated entities is
affected. While one of 28 does not appear to represent a substantial
number of directly regulated entities, one of six directly regulated
entities may give the appearance of a substantial number. Thus, NMFS
has prepared this IRFA, which provides potentially affected small
entities an opportunity to provide comments. NMFS will evaluate any
comments received regarding the potential for significant economic
impact on a substantial number of small entities in the final RFA
contained within the final rule.
Recordkeeping, Reporting, and Other Compliance Requirements
No small entity is subject to reporting requirements that are in
addition to or different from the requirements that apply to all
directly regulated entities.
Under this proposed rule, requirements for recording and reporting
would not be changed. Therefore, this proposed action will not change
recordkeeping and reporting costs for fishery participants or impose
any additional or new costs on participants.
2. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Action
NMFS has not identified any duplication, overlap, or conflict
between this proposed rule and existing Federal rules.
3. Description of Significant Alternatives 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,
would minimize costs to potentially affected small entities more than
the proposed rule. The Council considered five alternatives for action
in this proposed rule along with three sub-options that could apply to
all action alternatives. Alternative 1 is the no action alternative and
would continue the static annual halibut PSC limit of 1,745 mt for the
Amendment 80 sector.
The Council's recommended Preferred Alternative (Alternative 5)
bases the determination of the annual PSC limit on the most recent
survey values for the IPHC setline survey and the EBS shelf trawl
survey using an index table that links PSC limits to survey abundance
index states (see Table 2-8 of the Analysis). The two abundance indices
are measures of the survey estimate of halibut either in metric tons
(NMFS AFSC EBS shelf trawl survey) or population-density as measured by
weight per unit effort (IPHC setline survey). These indices will be
used to track halibut abundance and to guide setting the PSC limit for
the Amendment 80 sector. The selected indices are based on the EBS
shelf trawl survey and the IPHC setline survey covering IPHC Areas
4ABCDE. Both indices represent the best available scientific
information. Alternatives 2 through 4 would use the same style of index
table as proposed in the Preferred Alternative but would use different
ranges of halibut PSC limits for the survey index levels. Alternative 2
includes a range from the current halibut PSC limit of 1,745 mt to
1,396 mt or 20 percent below the current limit. Alternative 3 includes
a range from 2,007 mt or 15 percent above the current limit to 1,222 mt
or 30 percent below the current limit. Alternative 4 includes a range
from the current limit of 1,745 mt to 960 mt or 45 percent below the
current limit.
The Preferred Alternative 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. The
Preferred Alternative would specify halibut PSC limits that range from
the current Amendment 80 halibut PSC limit to 35 percent below the
current limit. This is within the range of halibut PSC limits
considered for this action, which range from 15 percent above the
current limit to 45 percent below the current limit. The Council has
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 decline as halibut available for harvest for all users also
declines. Under those conditions, reduced halibut mortality through
lower PSC limits is likely to prevent halibut PSC from becoming a
larger proportion of total removals in the BSAI, consistent with the
Council's purpose and need statement.
In recommending the Preferred Alternative, the Council
appropriately considered the Magnuson-Stevens Act requirements. The
Preferred Alternative 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.

[[Page 75584]]

4. Collection of Information Requirements
This proposed rule does not require any collection of information
(``recordkeeping and reporting'') requirements approved by the Office
of Management and Budget (OMB) under the Paperwork Reduction Act (PRA).
This proposed rule does not amend 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 Council reviewed the EDR for Amendment 80,
and three other sectors, in February of 2022 and kept the Amendment 80
EDR largely intact while adopting some agency recommendations for small
changes to the information collection forms to reduce respondent
burden.
Send comments on these or any other aspects of the collection of
information to NMFS Alaska Region at the ADDRESSES above, by email to
<a href="/cdn-cgi/l/email-protection#97d8dec5d6c8c4e2f5fafee4e4fef8f9d7f8faf5b9f2f8e7b9f0f8e1"><span class="__cf_email__" data-cfemail="aae5e3f8ebf5f9dfc8c7c3d9d9c3c5c4eac5c7c884cfc5da84cdc5dc">[email&#160;protected]</span></a>, or by fax to (202) 395-5806.
Notwithstanding any other provision of law, no person is required
to respond to, and no person shall be subject to penalty for failure to
comply with, a collection of information subject to the requirements of
the PRA, unless that collection of information displays a currently
valid OMB control number. All currently approved NOAA collections of
information may be viewed at <a href="http://www.cio.noaa.gov/services_programs/prasubs.html">http://www.cio.noaa.gov/services_programs/prasubs.html</a>.

C. Tribal Consultation

E.O. 13175 of November 6, 2000, the Executive Memorandum of April
29, 1994, the American Indian and Alaska Native Policy of the U.S.
Department of Commerce (March 30, 1995), and the Department of Commerce
Tribal Consultation and Coordination policy (78 FR 33331, June 4, 2013)
outline the responsibilities NMFS has for tribal consultations related
to Federal policies that have tribal implications. Further, section 161
of Public Law 108-199 extends the consultation requirements of E.O.
13175 to Alaska Native corporations. Under E.O. 13175 and agency
policies, NMFS is required to give the opportunity for meaningful and
timely input by tribal officials and representatives of Alaska Native
corporations in the development of regulatory policies that have tribal
implications. To that end, NMFS will provide a copy of this 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 proposed
action.
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 tribal summary
impact statement must contain (1) a description of the extent of the
agency's prior consultation with tribal officials, (2) a summary of the
nature of their concerns, (3) the agency's position supporting the need
to issue the regulation, and (4) a statement of the extent to which the
concerns of tribal officials have been met. If the Secretary of
Commerce approves this proposed action, a tribal impact summary
statement that addresses the four questions above will be prepared and
included in the final rule.

List of Subjects in 50 CFR Part 679

Alaska, Fisheries, Halibut, Reporting and recordkeeping
requirements.

Dated: November 29, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.

For reasons set out in the preamble, NMFS proposes to amend 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 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 of 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 proposed 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

[[Page 75585]]

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 paragraph 679.21(b)(1)(i) and Table 58 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:

Table 58 to Part 679--Amendment 80 Sector Annual BSAI Pacific Halibut
PSC Limits
------------------------------------------------------------------------
Eastern Bering Sea shelf trawl survey
index (t)
Survey index ranges -------------------------------------------
Low <150,000 High >=150,000
------------------------------------------------------------------------
IPHC setline survey index in
Area 4ABCDE (WPUE)
High >=11,000........... 1,745 mt............ 1,745 mt.
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. 2022-26337 Filed 12-8-22; 8:45 am]
BILLING CODE 3510-22-P

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