Rule2023-25513
Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Halibut Abundance-Based Management of Amendment 80 Prohibited Species Catch Limit
Primary source
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Published
November 24, 2023
Effective
January 1, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS issues this final rule to implement Amendment 123 to the Fishery Management Plan (FMP) for Groundfish of the Bering Sea and Aleutian Islands (BSAI) Management Area (BSAI FMP). This final rule amends the regulations governing limits on Pacific halibut (Hippoglossus stenolepis) (halibut) prohibited species catch (PSC) to link the halibut PSC limit for the Amendment 80 commercial groundfish trawl fleet in the BSAI groundfish fisheries to halibut abundance. This final rule is necessary to comply with the obligation in the Magnuson- Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) that FMPs minimize bycatch to the extent practicable. It is also consistent with the Magnuson-Stevens Act's National Standards. This final rule is expected to minimize halibut mortality, and it may result in additional harvest opportunities in the commercial halibut fishery, as well as to the subsistence and recreational fisheries. This final rule is intended to promote the goals and objectives of the Magnuson- Stevens Act, other applicable laws, and Amendment 123 to the BSAI FMP.
Full Text
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[Federal Register Volume 88, Number 225 (Friday, November 24, 2023)]
[Rules and Regulations]
[Pages 82740-82771]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-25513]
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Vol. 88
Friday,
No. 225
November 24, 2023
Part IV
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 679
Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and
Aleutian Islands Halibut Abundance-Based Management of Amendment 80
Prohibited Species Catch Limit; Final Rule
Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 /
Rules and Regulations
[[Page 82740]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket Number: 231114-0267]
RIN 0648-BL42
Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea
and Aleutian Islands Halibut Abundance-Based Management of Amendment 80
Prohibited Species Catch Limit
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to implement Amendment 123 to the
Fishery Management Plan (FMP) for Groundfish of the Bering Sea and
Aleutian Islands (BSAI) Management Area (BSAI FMP). This final rule
amends the regulations governing limits on Pacific halibut
(Hippoglossus stenolepis) (halibut) prohibited species catch (PSC) to
link the halibut PSC limit for the Amendment 80 commercial groundfish
trawl fleet in the BSAI groundfish fisheries to halibut abundance. This
final rule is necessary to comply with the obligation in the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act)
that FMPs minimize bycatch to the extent practicable. It is also
consistent with the Magnuson-Stevens Act's National Standards. This
final rule is expected to minimize halibut mortality, and it may result
in additional harvest opportunities in the commercial halibut fishery,
as well as to the subsistence and recreational fisheries. This final
rule is intended to promote the goals and objectives of the Magnuson-
Stevens Act, other applicable laws, and Amendment 123 to the BSAI FMP.
DATES: This rule is effective January 1, 2024.
ADDRESSES: Electronic copies of the Environmental Impact Statement
(EIS) and the Social Impact Assessment (SIA) (collectively referred to
as the ``Analysis'') and the Record of Decision (ROD) prepared for this
final rule may be obtained from <a href="https://www.regulations.gov">https://www.regulations.gov</a> or from the
NMFS Alaska Region website at <a href="https://www.fisheries.noaa.gov/region/alaska">https://www.fisheries.noaa.gov/region/alaska</a>.
Electronic copies of Tribal consultation and listening summaries
prepared for this action may be obtained from the NMFS Alaska Region
website at: <a href="https://www.fisheries.noaa.gov/alaska/consultations/alaska-fisheries-tribal-consultation-documents-and-workgroup">https://www.fisheries.noaa.gov/alaska/consultations/alaska-fisheries-tribal-consultation-documents-and-workgroup</a>.
Electronic copies of North Pacific Fishery Management Council
(Council) documents referenced in this final rule are available on the
Council website at <a href="https://npfmc.org">https://npfmc.org</a>.
Electronic copies of International Pacific Halibut Commission
(IPHC) documents referenced in this final rule are available on the
IPHC website at <a href="https://iphc.int">https://iphc.int</a>.
FOR FURTHER INFORMATION CONTACT: Gretchen Harrington, 907-586-7228.
SUPPLEMENTARY INFORMATION: NMFS published a Notice of Availability
(NOA) for Amendment 123 in the Federal Register on November 9, 2022 (87
FR 67665), with public comments invited through January 9, 2023. On
December 9, 2022, upon realization that supporting documents were not
publicly available, NMFS extended the comment period on the NOA for the
FMP amendment to February 7, 2023, with a document (87 FR 75569,
December 9, 2022) to allow a 60-day public comment period on the
proposed action with all supporting documents available. NMFS published
a proposed rule to implement Amendment 123 in the Federal Register on
December 9, 2022 (87 FR 75570) with public comment invited through
January 23, 2023. NMFS received 69 comment letters on the proposed
Amendment 123 and the proposed rule. Amendment 123 was approved on
March 7, 2023. A summary of the comments and NMFS's responses are
provided under the heading ``Comments and Responses'' below.
Regulations governing U.S. fisheries and implementing the Magnuson-
Stevens Act are located at 50 CFR parts 600 and 679.
Background
The following background sections describe the Amendment 80 Sector
and associated fisheries, halibut PSC management in the BSAI groundfish
fisheries, BSAI Amendment 123, and the halibut abundance indices used
to set halibut PSC limits for the Amendment 80 sector and this final
rule. A detailed review of the provisions of Amendments 123, the
proposed regulations to implement Amendment 123, and the rationale for
this action is provided in the preamble to the proposed rule and is
briefly summarized in this final rule. This preamble uses specific
terms (e.g., Amendment 80 sector, directed fishing) that are described
in regulation and in the preamble to the proposed rule. Additional
information is provided in the preamble of the proposed rule, the
Analysis, and the ROD, and we refer the reader to those documents for
additional detail.
Halibut PSC Management in the BSAI Groundfish Fisheries
Halibut is an iconic, highly valued fish among commercial,
recreational, charter, and subsistence fishermen. For the commercial
fisheries that do not directly target halibut, NMFS regulates their PSC
or bycatch of halibut. Every FMP must minimize bycatch (16 U.S.C.
1853(a)(11)), to the extent practicable. The groundfish fisheries
cannot be prosecuted without some level of halibut bycatch because of
spatiotemporal overlap of groundfish and halibut. Regulations require
the operator of any vessel fishing for groundfish in the BSAI to
minimize the catch of prohibited species (Sec. 679.21(a)(2)(i)).
Although halibut PSC results from all types of gear (i.e., trawl,
hook-and-line, pot, and jig gear), halibut PSC primarily occurs in the
trawl and hook-and-line groundfish fisheries. NMFS minimizes halibut
bycatch to the extent practicable in the BSAI by: (1) establishing
halibut PSC limits for trawl and non-trawl fisheries; (2) apportioning
those halibut PSC limits to groundfish sectors, fishery categories, and
seasons; and (3) managing groundfish fisheries to prevent PSC from
exceeding the established limits. The following sections provide
additional information on the process NMFS uses to establish,
apportion, and manage halibut PSC limits in the BSAI.
Halibut PSC limits in the groundfish fisheries provide a constraint
on halibut PSC mortality and promote conservation of the halibut
resource. Groundfish fishing is prohibited once a halibut PSC limit has
been reached for a particular sector or season.
The Council and NMFS have taken a number of management actions to
minimize halibut bycatch to the extent practicable in the BSAI
groundfish fisheries. Most recently, the Council adopted, and NMFS
approved, Amendment 111 to the FMP in 2016 (81 FR 24714, April 27,
2016). That amendment established the current halibut PSC limits for
BSAI groundfish fisheries, which were considered to be an effective
means to minimize bycatch to the extent practicable at that time. The
current total annual halibut PSC limit for BSAI groundfish fisheries is
3,515 metric tons (mt); from that total, 1,745 mt are apportioned to
the Amendment 80 sector, which is composed of non-pollock trawl
vessels.
[[Page 82741]]
The BSAI trawl limited access sector, which is composed of all other
trawl catcher/processor and trawl catcher vessels, is apportioned 745
mt. The BSAI non-trawl sector, which includes primarily hook-and-line
catcher/processors, is apportioned 710 mt. The remaining 315 mt are
apportioned to the Community Development Quota (CDQ) program, which is
composed of vessels fishing for CDQ groups.
The Amendment 80 Sector and Associated Fisheries
Fishing under the Amendment 80 Program began in 2008 (72 FR 52668,
September 14, 2007). The Amendment 80 sector is comprised of trawl
vessels, mostly owned by entities in the Seattle, Washington area, that
participate in the BSAI groundfish fisheries other than the Bering Sea
pollock fishery. The Amendment 80 species are identified in regulation
(Sec. 679.2) as the following 6 species: BSAI Atka mackerel, Aleutian
Islands Pacific ocean perch, BSAI flathead sole, BSAI Pacific cod, BSAI
rock sole, and BSAI yellowfin sole. The Amendment 80 Program allocates
a portion of the total allowable catch (TAC) limits of these species
between the Amendment 80 sector and other fishery participants. The
Amendment 80 Program also apportions crab and halibut PSC limits to
constrain bycatch of these species while Amendment 80 vessels harvest
groundfish.
At its inception, the Amendment 80 Program allocated quota share
(QS) for the six specified species based on the historical catch of
these species by Amendment 80 vessels. The Amendment 80 Program allows
and facilitates the formation of Amendment 80 cooperatives among QS
holders who receive an exclusive harvest privilege. This exclusive
harvest privilege allows Amendment 80 cooperative participants to
collaboratively manage their fishing operations and more efficiently
harvest groundfish allocations while staying under PSC limits.
As specified in Section 3.7.5.2 of the FMP and at Sec. 679.21,
NMFS annually establishes a halibut PSC limit of 1,745 mt for the
Amendment 80 sector. This halibut PSC limit is apportioned between the
Amendment 80 cooperative(s) and the Amendment 80 limited access fishery
according to the process specified at Sec. 679.91. Amendment 80
cooperatives are responsible for coordinating members' fishing
activities to ensure the halibut PSC limit apportioned to the
cooperative is not exceeded. Federal regulations at Sec.
679.91(h)(3)(xvi) prohibit each Amendment 80 cooperative from exceeding
the halibut PSC limit specified on its annual Amendment 80 Cooperative
Quota (CQ) permit.
Of the four BSAI groundfish fishery sectors, the Amendment 80
sector receives the largest proportion of halibut PSC limits in the
BSAI (roughly 50 percent). Therefore, the Council recommended, and NMFS
agrees, that Amendment 123 and this final rule should focus on the
halibut PSC limit for the Amendment 80 sector. Several reasons drove
this decision, as discussed below.
When the Council took final action on Amendment 111 in December
2015 to reduce the PSC limits for all fishing sectors in the BSAI, the
Council considered the methods available to the fisheries and the
practicability of reducing halibut bycatch and mortality at that time.
The preamble to the proposed rule to implement Amendment 111 noted that
the Council and NMFS believed that more stringent PSC limit reductions
than those proposed as part of Amendment 111 were not practicable for
the groundfish sectors at that time. However, at the same meeting, the
Council noted that additional halibut bycatch reduction would be needed
in the future and initiated an analysis of the means to link halibut
PSC limits to halibut abundance, thereby indicating that additional
efforts would be required beyond those established by Amendment 111,
and utilized by the fisheries, to reduce halibut bycatch and mortality.
From 2015 (when the Council requested the Amendment 80 sector to
proactively reduce halibut mortality ahead of Amendment 111's
regulatory PSC limit reductions expected to be implemented in 2016)
through 2020, the Amendment 80 sector reduced its halibut mortality to
levels well below the PSC limit of 1,745 mt established under Amendment
111. Those reductions resulted in halibut mortality levels close to or
below the PSC limits that are implemented by this rule based on halibut
abundance estimates derived from current survey indices described below
(see Section 3.4.1 of the Analysis).
Amendment 123
The Council recommended Amendment 123 in December 2021 to link the
halibut PSC limit for the Amendment 80 sector to halibut abundance. In
recommending Amendment 123, the Council intended to minimize halibut
PSC to the extent practicable as required by section 303(a)(11) and
National Standard 9 of the Magnuson-Stevens Act and to continue
achieving optimum yield in the BSAI groundfish fisheries on a
continuing basis under National Standard 1. The Council then weighed
and balanced the Magnuson-Stevens Act's legal requirements and
considerations, including the ten National Standards. Based on public
comment, the EIS prepared pursuant to the National Environmental Policy
Act (NEPA), and analyses under E.O.s and related laws, the Council
recommended Amendment 123 to NMFS.
This final rule implements Amendment 123 and requires the Amendment
80 sector to reduce halibut mortality at times of low halibut
abundance. Achievement of these objectives will conserve the halibut
resource by improving bycatch management and could result in additional
harvest opportunities in the directed commercial, subsistence, and
recreational halibut fisheries. The implementation of Amendment 123 and
this final rule changes the annual process to determine the halibut PSC
limit for the Amendment 80 sector to a PSC limit based on two indices
of halibut abundance. An index of abundance is a relative measure of
the abundance of the halibut population (or subpopulation--e.g., size)
calculated using an accepted scientific data collection method (e.g.,
survey with standardized stations and bait) and calculation method for
the indices.
This action specifies halibut PSC limits for the Amendment 80
sector based on fishery-independent indices of halibut abundance
derived from scientific survey data. The two survey indices recommended
by the Council and implemented in this final rule are the International
Pacific Halibut Commission (IPHC) setline survey index in Area 4ABCDE
and the NMFS Alaska Fisheries Science Center (AFSC) Eastern Bering Sea
(EBS) shelf trawl survey index. Throughout this preamble, the IPHC
setline survey index in Area 4ABCDE is referred to as the IPHC index,
and the NMFS EBS shelf trawl survey index is referred to as the NMFS
EBS index. The Council, its Scientific and Statistical Committee (SSC),
and NMFS reviewed and recommended use of the IPHC index and the NMFS
EBS index for this action, taking into account and noting limitations,
assumptions, collection methods, and uncertainties in the Analysis. All
information on the data and analysis is available to the public through
meetings of the IPHC, the Council, or online (see ADDRESSES).
Each year, the IPHC will calculate an index of halibut biomass in
Area 4ABCDE, which it will provide to NMFS. NMFS will categorize the
resulting index into one of four
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abundance index ranges: very low, low, medium, or high. Similarly, the
AFSC will use the most recent results from the EBS shelf trawl survey
to calculate an index of halibut biomass and NMFS will categorize the
resulting index into one of two ranges: low or high. The value at the
intercept of those separate indices in table 58 to part 679 will be the
Amendment 80 sector's halibut PSC limit for the following calendar
year. NMFS has requested that the IPHC and AFSC provide the most recent
annual index of halibut abundance, including a summary of the methods,
data, and analysis used to calculate the index, to the Regional
Administrator by December 1 (for the IPHC index), and October 1 (for
the NMFS EBS index) of each year. NMFS will provide this information to
the Council and the public at the Council's regularly scheduled
meetings.
The Council and NMFS also considered that there has been relative
stability of the halibut abundance indices in recent years and
concluded that if there were sampling changes, or that no sampling
occurred in a given year, the abundance value produced by the IPHC
model would still be robust and could be used for abundance-based
management of halibut prohibited species catch limits. As indicated in
Section 2.7 of the Analysis, the Council clarified that the most recent
survey data available should be used to set annual PSC limits in the
absence of one or more years of survey data.
NMFS EBS Index
Annually, NMFS uses data from the EBS shelf bottom trawl survey
(EBS survey) to estimate halibut biomass (mt) in the EBS (NMFS EBS
index). The NMFS EBS index is calculated from halibut catch at the EBS
survey stations and accounts for the total survey area. The EBS survey
is conducted during the summer (May through August), and the processed
data are made available during the fall, at which time the NMFS EBS
index can be calculated. Results of the EBS survey provide up-to-date
estimates of biomass, abundance, distribution, and population structure
of groundfish populations in support of stock assessment and ecosystem
forecast models that form the basis for groundfish and crab harvest
advice. The EBS survey has been conducted annually since 1982 (with one
exception in 2020) and has included the current number of stations
(376) since 1987. Results from this survey are used to calculate a
relative abundance (catch per unit effort) and size and/or age
composition for halibut and many groundfish and crab species. Data
collected on the survey are also used to improve understanding of life
history of the fish and invertebrate species, as well as the ecological
and physical factors affecting their distribution and abundance. In
absence of a survey, NMFS will use the halibut abundance index
calculated from the most recent EBS survey.
IPHC Index
The IPHC has collected and analyzed data through a robust
scientific process (i.e., performed stock assessments) to determine the
abundance of halibut coastwide from California to the Bering Sea. Each
proposed survey undergoes scientific review and public inspection
through a variety of channels.
The IPHC analyzes and combines data from the IPHC's Fishery-
Independent Setline Survey (FISS), NMFS Eastern and Northern Bering Sea
trawl survey, and Alaska Department of Fish and Game (ADF&G) Norton
Sound trawl survey using a space-time model to create relative indices
of halibut abundance and biomass in different units (e.g., numbers or
weight) for use in the annual halibut stock assessment. The EBS shelf
survey has different size-selectivity than setline gear. To address
this, the EBS shelf trawl survey is calibrated to the setline survey
selectivity before it is incorporated into the calculation of the
setline survey indices. Therefore, the setline survey does not index
smaller halibut (mostly under 26 inches (66 cm) in fish length, called
U26). Three important indices created annually include (1) a relative
index of halibut abundance expressed as a number of fish that is used
in the halibut stock assessment; (2) a relative index of halibut
biomass for all sizes of fish expressed as weight per unit effort
(WPUE) in in each IPHC Regulatory Area, including areas 4A, 4B, and
4CDE, which is also referred to as the IPHC index that is used in table
58 to part 679 for the purpose of annually establishing Amendment 80
halibut PSC limits; and (3) a relative index of halibut biomass in each
IPHC Regulatory Area for fish over 32 inches (O32) in length overall
that is used by the IPHC in the annual process to establish halibut
mortality limits in each IPHC Regulatory Area.
The IPHC uses a scientific approach to survey data analysis in the
space-time model that has been peer reviewed by the IPHC's Scientific
Review Board (SRB). Similar space-time models are used to create the
indices of abundance from NMFS Bering Sea trawl survey for the Pacific
cod and Walleye pollock stock assessments. The IPHC index was selected
by the Council as one dimension of table 58 to part 679.
The space-time modeling approach incorporates information from
nearby observations in space and time to improve the prediction of WPUE
at a particular sampling station. Such an approach allows the IPHC to
annually generate an index of halibut abundance and estimate biomass
(with associated variance estimates) even when FISS sampling coverage
is not complete in all geographic areas. This means that for areas
which are not sampled directly by the FISS in a given year, a
statistically valid index of abundance is available, although the
quantified uncertainty around the index would likely increase.
When assessing the robustness of the IPHC index during the
development of Amendment 123, NMFS, the Council, and its SSC examined
what would happen if there were changes in the surveys, including in a
situation if no survey was to occur. They noted that the optimized use
of the information from the sampled data reduces uncertainty and allows
for the estimation of a consistent time-series over all years, even for
areas that were not sampled in a particular year, with appropriate
estimated uncertainty. Those estimates are the best scientific
information available.
The survey coverage has varied over time and has been adjusted for
both scientific reasons (e.g., to enhance accuracy and precision) as
well as to adjust for cost and logistical reasons. Annually, the FISS
survey design represents a subset of the full survey design of 1890
stations coastwide. Station allocation among IPHC Areas, station
density within Areas, and sampling effort (number of skates) per
station in a given year are adjusted to meet the stated objectives to:
(1) sample halibut for stock assessment and stock distribution
estimation, (2) achieve long-term revenue neutrality, and (3) minimize
removals, and assist others where feasible on a cost-recovery basis.
The IPHC relies on its SRB to provide independent scientific peer
review of the IPHC science process, including the annual FISS design
development and refinement. The annual FISS design is routinely
reviewed by the Commission and the public during the IPHC annual
process.
Regulatory Changes Implemented by This Action
This final rule establishes a process to set the annual halibut PSC
limit for the Amendment 80 sector. This rule specifies the following:
<bullet> The halibut PSC limit for the Amendment 80 sector is
determined annually;
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<bullet> Halibut biomass estimates derived from the most recent
IPHC index and the NMFS EBS index are applied to a specified set of
ranges for each index to establish the halibut PSC limit for the
Amendment 80 sector for the following year;
<bullet> The halibut PSC limits range from 1,745 mt when abundance
is characterized as ``high'' for the IPHC index, down to 1,134 mt (35
percent reduction) when abundance is characterized as ``very low'' for
the IPHC index; and
<bullet> Each year the Amendment 80 sector halibut PSC limit is
included in the annual harvest specifications for the BSAI.
This rule revises Sec. 679.21(b)(1), which establishes halibut PSC
limits for the Amendment 80 sector. This rule adds Sec.
679.21(b)(1)(i)(A) through (C) to establish the process for determining
the annual halibut PSC limits for the Amendment 80 sector, including
Amendment 80 cooperatives and the Amendment 80 limited access fishery.
This rule specifies that halibut indices derived from the most recent
IPHC index and the NMFS EBS index be applied to a specified table of
index ranges (table 58 to part 679). The value at the intercept of
those indices within the table will be the halibut PSC limit for the
Amendment 80 sector for the following year.
This rule also revises Sec. 679.91, which establishes Amendment 80
Program annual harvester privileges and the process for assigning
halibut PSC limits to the Amendment 80 sector, cooperatives, and
limited access fishery. This rule revises Sec. 679.91(d)(1),
(d)(2)(i), and (d)(3) to clarify that the amount of halibut PSC limit
for the Amendment 80 sector for each calendar year is specified and
determined according to the procedure in Sec. 679.21(b)(1)(i) by
replacing the references to table 35 to part 679 in those paragraphs to
this part that stipulates the annual fixed amount of 1,745 mt for the
Amendment 80 sector as a whole.
This rule revises table 35 to part 679 (Apportionment of Crab PSC
and Halibut PSC between the Amendment 80 and BSAI Trawl Limited Access
Sectors) to indicate that the Amendment 80 sector halibut PSC limit
will be determined annually, rather than set at a fixed amount.
This rule adds table 58 to part 679 (Amendment 80 Sector Annual
BSAI Pacific Halibut PSC Limits) to establish the IPHC index and the
NMFS EBS index ranges in a table with the corresponding PSC limit at
the intercepts of each index range.
Comments and Responses
NMFS received 69 comment letters on the Amendment 123 Notice of
Availability and proposed rule. NMFS responds to 91 substantive
comments below.
NMFS received comment letters from 12 individuals, 3 fishermen, 1
guide service, 2 CDQ groups, 36 industry support businesses, 4
Amendment 80 companies, 7 industry associations, 2 non-governmental
organizations (NGO), and 1 anonymous submission. Of the seven industry
associations, one represents the Amendment 80 sector, one represents
Bering Sea crabbers, three represent halibut and sablefish fishermen,
one represents fishermen in the Homer, Alaska area, and one represents
Prince William Sound and Central Gulf of Alaska fishermen. Of the 69
comment letters, 43 were opposed to the action and 26 were in support.
Commenters who opposed the action were from the Amendment 80 sector,
their industry association, members of the business community who
provide support services to the Amendment 80 sector, and one CDQ group.
Comment letters that voiced support for the action came from
individuals, fishermen in halibut fisheries, an industry association
representing crabbers, those who represent a wide range of fishermen in
the Cordova area, a charter company, two NGOs, and the anonymous
submission.
In responding to these comments, when NMFS refers to Amendment 123,
unless otherwise noted, NMFS is referring to Amendment 123 and this
final rule implementing Amendment 123. There were no public comments
asserting that the proposed rule is not consistent with Amendment 123.
Numerous comments address information included in the draft Analysis
prepared for this action. Throughout the responses below, when NMFS
refers to the ``Analysis,'' NMFS is referencing the EIS including the
SIA prepared for this action. NMFS refers to the Draft Environmental
Impact Statement as the ``draft Analysis.''
Halibut Abundance Indices
Comment 1: The current fixed halibut PSC limit fails to respond to
varying abundances of halibut. The Council recommended Amendment 123 to
the Secretary of Commerce as a responsive process to establish annual
halibut PSC limits for the Amendment 80 sector based on halibut
abundance. A PSC limit that responds to halibut abundance will allow
halibut PSC limits to rise and fall based on abundance indices
calculated with inputs from the IPHC fishery-independent setline survey
and the annual NMFS trawl surveys in the BSAI area. We support NMFS
implementing this action to reduce waste of the important halibut and
bring the years-long process of crafting an equitable and
scientifically supported abundance-based management plan to conclusion.
Response: NMFS acknowledges this comment. The need for an
abundance-based management system is laid out in the preamble to the
proposed rule.
Comment 2: In recommending the abundance indices included in
Amendment 123, the Council contradicted recommendations from its own
scientific peer-review body (i.e., SSC) that specifically cautioned
against the use of the recommended metrics in April 2021.
Response: In April 2021, the SSC expressed concern with the
potential impact of year-to-year changes to survey or abundance
estimation methods; however, the SSC did not call into question whether
the indices were the best scientific information available. Instead,
the SSC provided important insight into the various factors affecting,
and affected by, use of the indices as proposed. The Council and NMFS
considered the SSC's recommendation of standardizing the indices of
abundance as relative values rather than the absolute values included
in this final rule as described in Section 2.8 of the Analysis. As with
every scientific process, survey and abundance estimation methods are
continuously reviewed and improved. Occasionally changes to survey and
abundance estimation methods may affect the scale of an absolute value,
whereas relative calculations (trends) are scaled such that changes are
relative to the period being evaluated (e.g., percent change).
The Council and NMFS acknowledged that there are tradeoffs with
using absolute values versus using standardized relative values. We
chose to use absolute values to improve transparency and public
understanding because the alternative (standardized relative values)
would make it more difficult for stakeholders to read reported survey
indices in a given year and map those onto a table to anticipate the
resulting Amendment 80 PSC limit. The absolute values for the abundance
indices are dependent on the assumptions of the survey design and
analysis, whereas a standardized relative index could show less year-
to-year variability. The Council and NMFS recognized that, with
absolute values, historical index values could change in the future
because of potential improvements to index calculation
[[Page 82744]]
methods. For example, if there are improvements to understanding
specific parameters used in calculating the index and those parameter
values change (e.g., increased precision in quantifying area sampled
results in an overall increase in area sampled, or improvements to the
length to weight ratio) could change the calculation method and
historical index values. But by using easily understood absolute
values, this approach creates greater transparency to the public and
meets the objectives for the program set by the Council, recognizing
that survey values could change in the future. This is similar to how
other PSC limits are set in the BSAI.
Comment 3: NMFS ignored the SSC advice regarding the use of
absolute or relative indices of halibut abundance. The SSC stated that
any change to the survey methods, area to which the survey applies, or
methods and models used to convert the survey data into abundance
values could result in changes in the Amendment 80 bycatch limits that
result not from actual changes in halibut abundance but from changes in
the survey design and methods used to calculate halibut abundance.
Response: Model methods and surveys are expected to change over
time and rely on scientifically accepted and statistically robust
methods that consider changes in bias and precision in estimates to
provide the best scientific information available for estimating
halibut abundance indices. The Council and NMFS considered the SSC
advice and selected the absolute index values because the combination
of those two values adequately met the purpose and need for the action,
is based on sound scientific survey methodology, and is transparent to
regulated entities and the public. Year-to-year changes in indices of
abundance due to methodology changes would have to be substantial
enough to cross the breakpoints specified in table 58 to part 679 to
influence the PSC limit set for the Amendment 80 sector each year, and
this is a possibility in the future as the indices adjust due to
changes in halibut abundance. This method accomplishes the purpose and
need for the action by tying PSC limits to halibut abundance using the
best scientific information available provided by the survey indices.
Should issues arise in the future, the Council and NMFS will review the
PSC limits established by this action during the periodic Amendment 80
program review or at any time that the Council wishes to initiate an
action to consider an alternative approach as part of its normal
process.
Comment 4: NMFS's determination of the breakpoints in the lookup
table to establish the halibut PSC limits that apply to the Amendment
80 sector is arbitrary, unexplained, and lacks a rational basis. The
Analysis states that the breakpoints employed in these lookup tables
were determined by visual inspection of relative trends in the survey
indices historically.
Response: The breakpoints identifying the different abundance
states for the two indices of halibut abundance included in table 58 to
part 679 reflect the cumulative input and decisions made throughout the
8 years of development of this action. The purpose of this action is to
link the halibut PSC limit for the Amendment 80 sector to halibut
abundance. As explained in the Analysis and the proposed rule, the
breakpoints in the lookup table span recent trends in indices of
halibut abundances, and the PSC limits in table 58 to part 679 reflect
the Council's decision to establish a PSC limit from 0 to 35 percent
below the existing limit, depending upon abundance.
The Council recommended, and NMFS agrees, that the chosen
breakpoints reasonably represent the desired abundance states (high,
medium, low, very low) in light of observed past survey trends. Based
on IPHC survey data, the period of 1997 through 2002 is categorized as
high abundance; 2003 through 2016 as medium abundance; and 2017 to
present as low abundance. The very low abundance state captures the
potential situation where abundance indices drop below historical
levels.
The breakpoints and accompanying PSC limits established by
Amendment 123 were selected to balance the goals of linking halibut PSC
to abundance, reducing bycatch, and avoiding burdens that would make
the rule impracticable. Any impacts that might arise from setting the
abundance breakpoints at the selected levels were also addressed in
consideration of the PSC limits set under the different alternatives. A
greater impact from setting a breakpoint at a higher or lower level
would affect the practicability of a given PSC limit. For example, if
the breakpoints were set even lower at the ``very low'' state, such
that this state would only occur when halibut abundances were
catastrophically low, a much higher reduction to the PSC limit might be
appropriate.
The Council recommended, and NMFS agrees, that the breakpoints
included in this action are appropriate to accomplish the action's
objectives. These conclusions are the result of the extensive analysis,
public input, and consideration by the Council and NMFS that occurred
during the development of this action.
Comment 5: NMFS's use of the IPHC index in this action would
impermissibly delegate to the IPHC the critical responsibilities of (1)
conducting a survey for determining the abundance of halibut and (2)
establishing the IPHC index for the abundance of that halibut, which is
then used directly, by regulation, to determine the annual halibut PSC
limit for the Amendment 80 sector. NMFS has directly linked its halibut
PSC management for the Amendment 80 sector to actions and decisions of
the IPHC that cannot be reviewed or otherwise second-guessed by NMFS.
NMFS therefore proposes to delegate to the IPHC its authority to
undertake the discretionary non-ministerial function of assessing,
analyzing, and determining the abundance of halibut in a manner that
requires the exercise of judgment.
Response: The Council designed, and this final rule implements, an
annual process for NMFS to determine Amendment 80 halibut PSC limits
using halibut abundance indices provided by the IPHC and the AFSC. Each
year, NMFS will rely on the IPHC index and the NMFS EBS index as the
best available scientific information on halibut abundance.
In this action, NMFS relies on the IPHC to produce the IPHC index
because the IPHC collects and analyzes scientific data necessary to
estimate halibut abundance throughout its range. That is the IPHC's
responsibility under Article III of the Convention for the Preservation
of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea
(Convention). NMFS participates in the IPHC annual process; the
Regional Administrator of NMFS's Alaska Region serves as one of three
U.S. Commissioners to the IPHC and is a voting member of the North
Pacific Fishery Management Council. Both indices used in this action
were reviewed by the Council's SSC and recommended by the Council. By
relying on the IPHC to provide this type of scientific information,
NMFS is not delegating management authority for any aspect of the
groundfish fisheries to the IPHC. NMFS manages, and will continue to
manage, the BSAI groundfish fisheries. In furtherance of that effort,
NMFS will use information analyzed by the IPHC. Specifically, NMFS will
use the IPHC index for halibut abundance, in conjunction with the NMFS
EBS index, to apply the appropriate PSC limit. The Council and NMFS
determined the halibut PSC limits established by this action are
[[Page 82745]]
necessary to achieve the program goals. NMFS will publish the PSC limit
in the annual harvest specifications. That is clearly a management
action undertaken by NMFS, and not the IPHC.
The IPHC independently conducts halibut surveys, collects data, and
carefully models halibut abundance. The IPHC would continue these
activities to estimate halibut abundance, whether or not NMFS
implements Amendment 123. This action relies on two indices of halibut
abundance derived from fishery-independent surveys which NMFS will use
to determine the annual halibut PSC limit for the Amendment 80 sector.
The IPHC index and the NMFS EBS index are described above in the
preamble to this final rule. The two abundance indices are in table 58
to part 679, which will be used by NMFS to determine the Amendment 80
sector's halibut PSC limit each year. This process incorporates the
best available scientific information available from both IPHC and AFSC
each year.
The Magnuson-Stevens Act's mandate is to base decision-making on
the best scientific information available, not on scientific
information generated only by NMFS. NMFS commonly relies on and
incorporates data, derived products, and modeling output from other
entities. For instance, NMFS uses the annual Chinook salmon abundance
estimate from the State of Alaska, which uses an established 3-System
Index of Chinook salmon abundance in western Alaska, to determine the
Chinook salmon PSC limit and performance standard applicable to vessels
participating in the Bering Sea pollock fishery.
Comment 6: The IPHC's annual abundance determinations will do the
following: (1) bypass all U.S. laws that would otherwise be applicable
if NMFS were making these determinations and any form of oversight by
NMFS (or any other U.S. Government agency); and (2) not be subject to
any of the standards for scientific integrity, such as peer review or a
process for data review that would otherwise apply to the actions of
U.S. agencies.
Response: NMFS disagrees. The IPHC promulgates regulations
governing the halibut fishery under the Convention. The IPHC's
regulations applicable to the United States are subject to approval by
the Secretary of State with the concurrence of the Secretary of
Commerce. The North Pacific Halibut Act (Halibut Act), 16 U.S.C.
773c(a)-(b), provides the Secretary of Commerce with general
responsibility for carrying out the Convention and the Halibut Act,
including the authority to adopt regulations necessary to carry out the
purposes and objectives of the Convention. The Halibut Act, 16 U.S.C.
773c(c), also provides the Council with authority to develop
regulations, including limited access regulations, that are in addition
to, and not in conflict with, IPHC regulations. Regulations the Council
recommends may be implemented by NMFS only after approval by the
Secretary of Commerce and in compliance with all applicable laws.
The IPHC's scientists produce halibut abundance indices through a
robust process that involves the public and NMFS. IPHC scientists are
highly-trained, independent specialists. Their work is regularly
reviewed by the IPHC Scientific Review Board, and an external
scientific review is periodically conducted. All findings of peer
reviews are openly discussed in public meetings and published online
(see ADDRESSES). Their models and abundance indices have been subject
to peer review and will continue to be subject to peer review that is
similar or identical to the peer review of data and models produced by
NMFS staff or from other Federal agencies.
Based on advice from the SSC, the Council and NMFS concluded that
the IPHC's annual setline indices are the best scientific information
available to estimate the abundance of Pacific halibut. As with any
Federal action, the best scientific information available might not
stem from the work of a single agency or organization. Through the
processes that have led to the development of Amendment 123 and this
action, the public has had an opportunity to examine and assess the
scientific underpinnings of the Federal action, and NMFS has fully
considered associated public comments.
Comment 7: It is arbitrary and capricious to base halibut PSC
limits on an abundance index that does not reflect or correlate with
halibut encounter rates in the Amendment 80 sector. The Amendment 80
sector's halibut encounter rates are not significantly correlated with
either of the halibut abundance indices used in the proposed action to
set annual halibut PSC limits. The halibut encounter rates are highly
variable year-to-year. The likelihood of the Amendment 80 sector
foregoing considerable groundfish catch based on the PSC limits
established in the proposed action is also likely to be highly variable
year-to-year. In October 2019, the SSC emphasized that a result of the
analysis is that the groundfish fleet's ability to avoid halibut
bycatch is poorly related to indices of halibut abundance.
Response: The purpose of this action is to link the halibut PSC
limit for the Amendment 80 sector to halibut abundance, which will
ensure that the Amendment 80 sector's use of halibut PSC does not
become a larger proportion of the overall halibut PSC in the BSAI in
years of lower halibut abundance. The Council and NMFS considered a
wide range of different abundance indices to use in the process for
linking halibut abundance to halibut PSC limits during the development
of this action. The SSC determined that the most scientifically
appropriate indices for linking PSC limits to abundance are the NMFS
EBS index and the IPHC index.
The Council and NMFS considered this issue extensively: Section
3.4.4 of the Analysis discusses a comparison of the Amendment 80
halibut encounter rates and mortality with survey trends (see
ADDRESSES). Early in development of Amendment 123 (in October 2017),
the Council reviewed a discussion paper that showed a high correlation
between the NMFS EBS index of halibut biomass and the non-pelagic trawl
(NPT) sector catch per unit effort (CPUE). However, over time, new
information became available that changed our understanding of the
correlation between the NMFS EBS index and the Amendment 80 encounter
rates. As noted in Section 3.4.4 of the Analysis, there are many
reasons why it would not be expected for Amendment 80 halibut PSC
encounter rates to be consistently and positively correlated with
fishery-independent indices of halibut biomass, including different
temporal and spatial coverage, degree of halibut intermingling with
target species, variable groundfish aggregation behavior across years,
gear selectivity, and fishery behavior such as targeting of different
species by the various fleets and companies within the sector.
The Analysis also recognizes that it is possible that higher
encounter rates are at least partially attributable to environmental
conditions (e.g., comingling of species in an ocean environment with
less temperature variation that could help separate species and guide
time and area targeting of individual species). Section 5.3.2.3.2 of
the Analysis discusses potential impacts of changing environmental
conditions on the practicability of the Amendment 80 sector to avoid
bycatch, particularly as it relates to warmer Bering Sea water
temperatures and spatial patterns of target fisheries.
Regardless of these uncertainties, the purpose of this action is to
link the halibut PSC limit for the Amendment 80
[[Page 82746]]
sector to halibut abundance. The Council and NMFS believe that the use
of the NMFS EBS and IPHC indices present the best means to accomplish
this objective, taking into account the information described above.
The Analysis thoroughly evaluates this dynamic, and this information
was considered in the Council's and NMFS's decision-making, including
the information raised by the SSC in October 2019 that the groundfish
fleet's ability to avoid halibut is poorly related to indices of
abundance. In short, the Council and NMFS considered the information in
the decision-making process.
Magnuson-Stevens Act Compliance
Comment 8: The proposed action violates section 303(a) of the
Magnuson-Stevens Act that requires an amendment be necessary and
appropriate for the conservation and management of a fishery because
(1) it is arbitrary to base halibut PSC limits for the Amendment 80
sector on a metric of abundance that is negatively correlated to
halibut encounter rates in the fishery, and (2) the proposed action
will not constrain halibut PSC in other fisheries.
Response: NMFS disagrees. The Council recommended and this final
rule implements this action to link halibut PSC limits to levels of
halibut abundance. The rationale for why it is appropriate to base
halibut PSC limits for the Amendment 80 sector on the indices of
halibut abundance included in this action is thoroughly discussed in
the response to Comment 26. The Council and NMFS chose to focus this
action on the Amendment 80 sector due to the high percentage of PSC
assigned to this sector, as explained in Comment 13, and because other
actions were underway or planned to address halibut bycatch in other
fisheries, as explained in response to Comment 16.
Comment 9: NMFS has not demonstrated that this action is necessary
or appropriate for the conservation and management of the Amendment 80
sector, and this Magnuson-Stevens Act requirement is not reflected in
the purpose and need statement for this action.
Response: In section 3(5) of the Magnuson-Stevens Act, Congress
defined ``conservation and management'' broadly. Minimizing halibut
bycatch by a groundfish fishery to the extent practicable satisfies
that definition, and is required and authorized by section 303 (see
sections 303(a)(11) and (b)(3)). This action is a modification of an
existing conservation and management measure necessary to limit the
amount of halibut mortality caused by the Amendment 80 sector
fisheries. The principal purpose of this action is to link the halibut
PSC limit for the Amendment 80 sector to halibut abundance to reduce
halibut bycatch to the extent practicable under National Standard 9 and
improve conservation of the halibut fishery by reducing halibut PSC
limits at times of low halibut abundance.
The Amendment 80 sector is managed under the BSAI FMP. The
Magnuson-Stevens Act requires NMFS to manage the BSAI groundfish
fisheries to minimize all bycatch to the extent practicable. Bycatch
minimization is a central policy and mandate of the Magnuson-Stevens
Act as specified in section 301(a)(9), and section 303(a)(11)(A) and
(b)(14). Through National Standard 9, Congress directed that all FMPs
and regulations developed pursuant to such FMPs must be consistent with
the requirement to minimize bycatch to the extent practicable.
Comment 10: NMFS failed to prepare a legally sufficient Fishery
Impact Statement.
Response: NMFS disagrees. NMFS prepared a Fishery Impact Statement
that addresses all required components as specified in Magnuson-Stevens
Act section 303(a)(9) and is included in Section 7.3 of Analysis (see
ADDRESSES).
Comment 11: NMFS and the Council failed to explain how biological
constraints and human needs were balanced, or priorities were
established, under the Magnuson-Stevens Act implementing regulations.
Response: NMFS disagrees. NMFS and the Council explained how
biological constraints and human needs are balanced and how priorities
were established throughout the preamble to the proposed rule, the
Analysis, and ROD (see ADDRESSES). See Section 2.4 and Appendix 1 of
the Analysis and the ROD for details on how NMFS and the Council
explained the biological constraints and human needs were balanced and
how priorities were established and evaluated during the decision-
making process.
Comment 12: The proposed action cannot and will not prevent halibut
PSC from becoming a larger proportion of total halibut removals in the
BSAI because it does not constrain the PSC limits in any other BSAI
groundfish fishery.
Response: NMFS agrees that this action does not modify PSC limits
for other non-Amendment 80 BSAI groundfish fisheries and does not limit
halibut catch or bycatch in the directed halibut fishery or other
groundfish fisheries that contribute to the total halibut removals in
the BSAI. Other NMFS actions have done so or may do so in the future.
This action is expected to ensure that the Amendment 80 sector's use of
halibut PSC does not become a larger proportion of the overall halibut
mortality in the BSAI in years of lower levels of halibut abundance.
Amendment 80 PSC limits established in future years will be influenced
by indices of halibut abundance according to the levels specified in
table 58 to part 679. Therein, this action will reduce Amendment 80
halibut PSC in years of low halibut abundance, which is an improvement
over the static PSC limit of 1,745 mt. This action focuses on the
Amendment 80 fleet because of that sector's relatively large
contribution to total halibut PSC in the BSAI management area.
The halibut PSC limits for all fisheries are specified according to
regulations at Sec. 679.21(b). Over the time period analyzed, the
Amendment 80 sector accounted for 49.6 percent of the total PSC limits
in the BSAI. The next closest fleet was the BSAI Trawl Limited Access
Sector with 21.2 percent of the total PSC limit. See Table 1-1 of the
Analysis. The Council and NMFS chose to focus this action on the
Amendment 80 sector, because (1) at lower halibut abundance levels, the
Amendment 80 sector's static PSC limit of 1,745 mt becomes a far larger
proportion of the overall halibut removals in the BSAI than any other
sector's PSC limit, as explained in response to Comment 12 and (2)
other actions were underway or planned to address halibut bycatch in
other fisheries or, the sectors not included in those actions receive a
relatively small proportion of the halibut PSC limit. The current
status of those actions is explained in response to Comment 16 below.
The existing PSC limits for other fishery sectors will not increase;
however, any sector can harvest halibut up to that sector's PSC limit
in any given year and actual halibut bycatch can vary from year to year
under the respective PSC limits. Accordingly, this action is expected
to reduce halibut PSC at lower levels of halibut abundance for the
Amendment 80 sector.
Comment 13: This action is not consistent with Magnuson-Stevens Act
implementing regulations at Sec. 600.305(b)(3) because the action is
not expected to positively impact halibut stock conservation or result
in an increased allocation to the directed halibut fleet in Area 4. The
only stated objective of this action is to impose constraints and
associated costs on the Amendment 80 sector by establishing
[[Page 82747]]
halibut PSC limits that are expected to constrain the fishery at times
of low halibut abundance.
Response: NMFS disagrees. The regulatory guidelines for the
Magnuson-Stevens Act's National Standards provide that each FMP should
identify what the FMP is intended to accomplish. Among other things,
those objectives should address the problems of a particular fishery
and should be clearly stated, practicably attainable, and framed in
understandable terms. The National Standard guidelines refer, at Sec.
600.305(b)(3), to objectives of the FMP, which provide the context
within which the Secretary of Commerce will judge the consistency of an
FMP's conservation and management measures with the National Standards.
The BSAI FMP objectives are found at Section 2.2.1 of the FMP and are
not changed by this action.
Further, under the Magnuson-Stevens Act National Standard
guidelines, fisheries management objectives should, among other things,
be practicably attainable. This action is consistent with the BSAI
FMP's objectives. Comments and responses below relating to National
Standard 9 further address issues raised with the practicability of the
PSC limits established by this action.
This action has clear, understandable, and attainable objectives.
The Analysis and the proposed rule clearly state that the purpose of
this action is to link the halibut PSC limit for the Amendment 80
sector to halibut abundance. This will change the previously static
halibut PSC limit to one that may fluctuate annually in response to
indices of halibut abundance. This approach will minimize bycatch to
the extent practicable and prevent Amendment 80 PSC from becoming a
significantly larger proportion of total halibut removals in the BSAI
when halibut abundance decreases to specified thresholds. The
achievement of the objective is measurable because the proposed
Amendment 80 sector's annual PSC limits will be linked to a range of
the halibut abundance levels depicted clearly in table 58 to part 679.
The BSAI FMP promotes conservation of the halibut resource by
establishing halibut PSC limits in the groundfish fisheries. Reduction
of halibut bycatch is a conservation benefit, as detailed on page 265
of the Analysis. As explained in response to Comment 53, NMFS must
consider a range of economic and non-economic impacts including impacts
to the halibut stock conservation and potential benefits to users of
the halibut resource, including the directed halibut fleet in Area 4.
Though NMFS must consider these factors, it is not a requirement that a
bycatch reduction measure result in measurable positive impacts to the
overall bycatch stock or to the catch allocations of the directed
halibut fishery. In Section 5 of the Analysis, NMFS extensively
evaluated the potential impacts on the halibut stock and directed
halibut fishery. In light of the numerous variables that affect halibut
biomass, this action may contribute to improvements to the halibut
biomass, but that is not an expected result. It is expected that the
conservation benefits achieved by this measure are more likely to
result in greater use by the directed fishery, rather than improvement
of the overall stock, but the result may not be binary, and whether
this expected result occurs does not affect the analysis for this
action.
Imposing costs is not an objective of this action. NMFS would
prefer that bycatch minimization occur with little cost. However,
Congress recognized that imposing costs may be necessary and directed
NMFS to minimize bycatch to the extent practicable. Practicability
determinations are made on a case-by-case basis for each fishery given
the circumstances at the time. Additional comments and responses
regarding the economic impacts of this action are included under the
``Economic Impacts'' heading below.
Comment 14: To the extent the proposed action has an objective of
either allocating halibut to the directed fishery or conserving halibut
by reducing bycatch, the objective is not practically attainable. It is
not reasonably certain that (1) overall halibut bycatch will be reduced
as a result of this action, (2) the IPHC will increase catch limits in
Area (4, or 3) any increase in catch limits will result in an increased
commercial catch in the directed halibut fishery. To the extent
conservation is a goal of the proposed action, NMFS has concluded that
the proposed action has little or no conservation benefit to the
halibut stock.
Response: See the response to Comment 34 for a summary of the
conservation benefits of this action. See the response to Comment 12
for a discussion of overall halibut bycatch. Allocation or re-
allocation of halibut is not an objective of this action, as described
in the responses to comments under the National Standard 4 heading.
Management of the directed halibut fishery and expected impacts of this
action are addressed in the responses to comments under the Directed
Halibut Fishery heading.
Comment 15: NMFS premises the proposed action on the supposed need
to achieve equity in the specific circumstance when ``the IPHC setline
survey results fall into the very low abundance state.'' But this is
arbitrary because the proposed action addresses all abundance states
and substantially reduces the Amendment 80 sector's halibut PSC limit
under the status quo. The halibut stock has never been in a ``very
low'' abundance state, which means the proposed action is chasing a
phantom and doing so in an overly broad way by reducing the halibut PSC
limit in all abundance states.
Response: The proposed action is based on Congress's direction to
minimize bycatch to the extent practicable while ensuring that that the
action is consistent with all ten National Standards and other
requirements of the Magnuson-Stevens Act. The result from linking
halibut PSC limits to halibut abundance is a more equitable one than
the current static PSC limit because, when abundance drops, a static
level of halibut PSC represents a greater proportion of all halibut
fishing mortality.
The Analysis considered various halibut abundance levels, not just
those which have already been known to occur, in order to link
Amendment 80 PSC limits to those various abundance levels. If the
halibut stock never enters a very low level of abundance, the
correlating PSC limit would not be imposed. However, including that
limit in the event such a level occurs is reasonable. Including the
very low abundance state ensures the Amendment 80 sector will minimize
its halibut bycatch at all levels of halibut abundance and, if those
abundance levels should drop to the very low state, the PSC limits
become lower as well. At the Very Low/Low and Very Low/High index
states, the proposed action would reduce the Amendment 80 halibut PSC
limit by 35 percent from the current limit. Should the IPHC index fall
into the very low abundance state, the Council and NMFS concluded that
this halibut PSC limit reduction would be important to promote
conservation and equitable use of the halibut stock and consistent with
the abundance-based process for establishing directed halibut fishery
catch limits. These measures are not overly broad; they apply in very
specific conditions that will be known to the Amendment 80 sector
before the fishing season begins. When abundance is categorized as
high, the PSC limit will not be changed from current limits. See
Comment 4 for discussion on the development of the breakpoints. In the
period considered in the Analysis, the
[[Page 82748]]
annual Amendment 80 sector PSC limit would have been set at the maximum
PSC limit of 1,745 mt in the years from 1998 through 2002 and 2008, had
this action been in place. In years from 2003 through 2007 and 2009
through 2021, the Amendment 80 sector PSC limit would have been set at
levels ranging from 1,309 mt to 1,571 mt representing a 10 percent to
25 percent reduction from the maximum PSC limit established by this
action.
Comment 16: Unlike the approach taken with BSAI FMP Amendment 111,
the proposed action is a fragmentary and not a comprehensive approach
to halibut and groundfish management. Halibut is managed on a coastwide
basis, and halibut bycatch occurs in multiple fisheries and sectors
across that wide range. Yet, the proposed action would myopically
regulate the halibut bycatch of just one fishery sector in one area,
and any benefit that might result from the proposed action is itself
uncertain because any reallocation of halibut to the directed fishery
hinges entirely on future unknown actions of the IPHC. This is a
fragmentary approach to fisheries management and in violation of Sec.
600.305(b)(3).
Response: The BSAI FMP addresses halibut bycatch comprehensively,
setting PSC limits for a variety of and sectors, as required by the
Magnuson-Stevens Act and National Standard guidelines. This action
adjusts the annual process to establish the Amendment 80 sector's PSC
limit for halibut. The Council and NMFS recognize that there are
ongoing and future plans to take or consider taking similar actions for
other sectors, and that does not diminish or fragment the FMP's overall
approach to bycatch management.
The Council established a comprehensive approach to halibut bycatch
management, and it is routine for the Council to evaluate the scope of
proposed adjustments based upon the problem statement and information
available at the time. The scope of this action, which is applicable
only to the Amendment 80 sector, was selected in February 2020 after
considering the issues identified in the problem statement, the amount
of halibut bycatch in each fishery sector, input at numerous public
meetings, and other proposed actions that would reduce halibut PSC in
other fishery sectors.
Other recent actions to reduce halibut bycatch in the BSAI include
BSAI FMP Amendment 116 (83 FR 49994, October 4, 2018) and BSAI FMP
Amendment 122 (88 FR 53704, August 8, 2023), which reduced halibut
bycatch in the non-Amendment 80 trawl fishery (commonly known as the
trawl limited-access, or ``TLAS'', fishery) and Pacific cod trawl
catcher vessel fishery, respectively. The Council decided, and NMFS
agrees, that a step-wise approach by sector allows for a simplified and
more efficient approach to adjusting halibut PSC management measures in
the BSAI.
Comment 17: The Analysis reflects a carefully considered balance by
the Council of competing considerations under the National Standards.
In reaching its conclusion, the Council carefully weighed all the
information before it, including the benefits to the directed fishery,
the need for conservation of the halibut resource, the practicability
of bycatch reductions, and the potential impacts to Amendment 80 if
halibut PSC limits implemented by this action were to constrain the
fishery in future years. Based on the sum total of that information,
the Council struck a middle ground by rejecting alternatives that
considered setting PSC limits at levels higher than and lower than the
halibut PSC limits included in this action.
Response: NMFS acknowledges this comment.
Comment 18: NMFS should uphold and approve the careful balance the
Council struck. As the proposed rule correctly recognizes, Amendment
123 is consistent with all the National Standards, but most relevantly
National Standards 1, 4, 8, and 9. It is also consistent with long-
neglected principles of environmental justice, Administration guidance,
and other relevant legal and statutory principles.
Response: NMFS acknowledges this comment.
Comment 19: NMFS must inform the Council of its interpretation of
the Magnuson-Stevens Act's National Standards as required by the
Magnuson-Stevens Act implementing regulations at Sec. 600.305(a)(2).
The proposed action is a novel approach to fishery management and is
particularly reliant upon interpretations of terms in the National
Standards that are not defined in statute or regulation, such as, but
not limited to, the terms ``reasonably calculated to promote
conservation'' and ``fair and equitable'' in National Standard 4 and
``minimize bycatch to the extent practicable'' in National Standard 9.
NMFS did not provide the Council with the Secretary of Commerce's
interpretation of these or any National Standard terms during the
deliberations that resulted in the proposed action. In fact, the
Council received contrary guidance. Without clear and appropriate
required guidance, the Council did not receive the information required
to lawfully develop and propose an action, as required by NMFS's
regulations.
Response: NMFS disagrees. The Secretary of Commerce published
guidelines to the ten National Standards at Sec. Sec. 600.305 through
600.355. The regulation cited in the comment, Sec. 600.305(a)(2),
states the purpose of the guidelines and is satisfied by publication of
the guidelines themselves. The phrases cited as undefined by the
comment are not specialized terms of art, and separate regulatory
action to interpret terms within the guidelines is not necessary prior
to implementing this action. NMFS has not applied the National
Standards in any novel way in this rulemaking. For more discussion of
the National Standards, see Section 7.1 of the Analysis (see ADDRESSES)
and the responses to comments under the National Standard headings
below.
Comment 20: NMFS should disapprove Amendment 123 because: 1) it is
not practicable under National Standard 9, consistent with its decision
on Amendment 75 to the BSAI FMP (68 FR 52142, September 2, 2003); 2)
NMFS did not prepare an adequate analysis, consistent with its decision
on Amendment 23 to the Pacific Coast Groundfish FMP (76 FR 27508, May
11, 2011); and 3) the negative economic impacts of Amendment 123 on the
Amendment 80 sector consistent with its decision on Amendment 18 (57 FR
23231, June 3, 1992).
Response: NMFS disagrees. The Secretary of Commerce reviews each
FMP amendment independently for consistency with all applicable law at
the time the Council transmits the amendment for review by to the
Secretary of Commerce. A decision on a past amendment is not binding in
perpetuity, particularly in the context of new circumstances and
requirements; therefore, the Secretary of Commerce's decision to
disapprove or partially approve Amendments 75, 23, and 18 are not
relevant to this action.
National Standard 1
Comment 21: This action is not consistent with National Standard 1
because achieving optimum yield (OY) is not actually an objective of
the proposed action and the action decreases the likelihood of
achieving OY because halibut PSC limits included in this action at
times of low halibut abundance are likely to constrain Amendment 80
fishing activity.
Response: NMFS disagrees. The Council and NMFS determined that
Amendment 123 and this final rule are consistent with National Standard
1 because, under all the PSC limits
[[Page 82749]]
established by this action, the BSAI groundfish fisheries will achieve
OY on a continuing basis as described in Section 5.3.2.3.1 of the
Analysis (see ADDRESSES). National Standard 1 states that conservation
and management measures shall prevent overfishing while achieving, on a
continuing basis, the OY from each fishery for the U.S. fishing
industry. A potential result of this action is that the Amendment 80
sector's harvests of groundfish could be constrained at the low and
very low states of halibut abundance; however, this does not materially
compromise the ability of the BSAI groundfish fisheries to continue
harvesting between 1.4 and 2.0 million mt of groundfish annually. The
phrase ``achieving, on a continuing basis'' is defined in the national
standard guidelines at Sec. 600.310(e)(3)(i)(B). Achieving OY does not
place a requirement that every individual regulatory action must result
in reaching OY. Rather, this standard is applied to the FMP as a whole.
The purpose of this action is to link halibut PSC limit for
Amendment 80 sector to halibut abundance to minimize bycatch to the
extent practicable. The Council and NMFS recognized in the Purpose and
Need statement (see Section 1.2 of the Analysis) that NMFS must ensure
the BSAI groundfish fisheries will continue to achieve optimum yield as
required by the Magnuson-Stevens Act. The Analysis demonstrates that,
after NMFS implements this final rule, those fisheries will do so.
Comment 22: This action makes it less likely that the BSAI
groundfish fisheries will continue to achieve OY on a continuing basis
because there are reasonably foreseeable circumstances that were not
considered by NMFS. In 2009 and 2010, the BSAI groundfish fisheries did
not achieve OY because the total harvest was 1,335,116 mt and 1,354,662
mt, respectively, which is lower than the low range of OY at 1.4
million mt. The Amendment 80 sector fisheries harvest approximately 12
to 25 percent of the overall BSAI groundfish fisheries annually and
generally at a higher percentage in years of low pollock abundance.
This action is likely to constrain Amendment 80 sector harvests in
years of low halibut abundance, and NMFS failed to consider the
combined impacts of this action with the reasonably foreseeable event
that pollock stocks could be low again in future years.
Response: Under National Standard 1 guidelines, OY is a long-term
average amount of desired yield from a stock, stock complex, or
fishery. This means that, even if a fishery were to fail to reach
harvest levels within the OY range for a few years over multiple
decades of fishing, NMFS's management of that fishery would still be
consistent with National Standard 1. The Analysis notes that the annual
groundfish harvest can be highly variable across years for a variety of
reasons (e.g., changing ocean conditions, variability in recruitment or
prey field, fisheries interactions, etc.) and that may result in years
where catch is not within the OY range. However, in light of the
regulations explaining National Standard 1's terms and purpose, the
failure to harvest groundfish within the OY range for two out of
several years of fishing does not mean that NMFS's management of the
fishery fails to comply with National Standard 1.
The Analysis notes that the Council considered 2016 through 2020 to
be the appropriate time period over which to evaluate halibut PSC use
because it reflects Amendment 80 sector operations under their Halibut
Avoidance Plan and deck sorting along with other available tools to
avoid halibut and reduce halibut mortality. The example in the Analysis
of a year without Amendment 80 harvest is meant to illustrate the
conclusion that possible Amendment 80 harvest reductions due to PSC
constraints do not cause an inability to achieve OY on a continuing
basis. See Section 5.3.2.3.1 of the Analysis for further discussion on
OY.
Comment 23: NMFS's novel analytical approach to evaluating OY
presumes that the Amendment 80 sector could be eliminated by the
proposed action without running afoul of National Standard 1. There is
nothing in the history of the development of OY for the BSAI groundfish
fisheries that supports the notion that OY should be achieved by
eliminating one of the fisheries.
Response: NMFS does not expect this action to eliminate the
Amendment 80 sector. The hypothetical example of achieving OY without
contribution by Amendment 80 was used to illustrate why NMFS expects
that, after this action, the BSAI groundfish fisheries will continue to
achieve OY. See Comments 21 and 22 above.
NMFS expects that the halibut PSC limits established in table 58 to
part 679 may prevent the Amendment 80 sector from fully harvesting TACs
in years with low halibut abundance; however, changes in fishing
behavior and effective use of available bycatch reduction tools,
including halibut excluders, halibut avoidance plans, and deck sorting,
could help mitigate potential negative economic impacts.
National Standard 2
Comment 24: NMFS fails to consider the best scientific information
available (contrary to National Standard 2) to assess reasonably
foreseeable future environmental conditions that are likely to
constrain harvests for the Amendment 80 sector in a manner that will
result in a failure to achieve OY on a consistent basis. Such
conditions include, but are not limited to, constraints on salmon
bycatch that could limit the pollock fishery (a major contributor of
the groundfish harvests), constraints due to low crab stock abundance
that will likely result in tighter restrictions on crab PSC limits and/
or new closed areas for Amendment 80 trawling, and increasing
variability in oceanic and atmospheric conditions that scientists
predict will shift flatfish and other Amendment 80 target species and
result in more target species moving to areas where the Amendment 80
sector is not allowed to fish (e.g., the Northern Bering Sea Research
Area).
Response: The Council and NMFS determined that Amendment 123 and
this final rule are consistent with National Standard 2, as explained
in Section 7.1 of the Analysis. National Standard 2 states that
conservation and management measures shall be based upon the best
scientific information available. NMFS used the best scientific
information available to assess the likely impacts of this action and
assessed future environmental conditions in this action. NMFS
considered the cumulative effects of this action in the context of
other reasonably foreseeable future actions in Section 5.8 of the
Analysis. The Council is in the early stages of developing new
potential actions to address bycatch of salmon and crab in BSAI
groundfish fisheries, including the potential additional actions
referenced in this comment; however, the Council has not yet made a
recommendation to NMFS. Actions are considered reasonably foreseeable
if some concrete step has been taken toward implementation, such as a
Council recommendation or NMFS's publication of a proposed rule.
Actions only ``under consideration'' are not generally included because
they may change substantially before adoption or may not be adopted at
all. They therefore cannot be reasonably described, predicted, or
foreseen. See the response to Comment 64 for a discussion of NMFS's
consideration of changes in oceanic and atmospheric conditions.
Comment 25: NMFS did not use the best available information to
evaluate the effects of the action on the halibut
[[Page 82750]]
stock because many tables in the Analysis do not include data available
from 2020 and 2021. By not including catch and revenue information from
these years in the Analysis, NMFS has failed to consider the expanded
harvest opportunities available in Area 4 to the directed halibut fleet
in 2021 and 2022. In 2022, the Area 4 halibut fishery received the
largest catch allocation in 10 years, and catch data, available on
NMFS's website, show a trend of decreasing utilization in the Area 4
halibut fishery that is not considered at all in the Analysis or
anywhere else in the record. NMFS also inconsistently picks and chooses
when it will use certain datasets in both the Analysis and the proposed
rule. This inconsistent use of data is arbitrary and represents a
failure to use the best scientific information available.
Response: NMFS evaluated the data used in the Analysis. Some tables
in the Analysis do not include data from 2020 through 2022 because it
is likely that such data were significantly affected by the COVID-19
pandemic and, therefore, less illustrative of historical trends and
future expectations. For example, allocation and utilization of halibut
by the directed fishery may have been significantly affected by the
pandemic. See Comments 27, 42, and 60 for further discussion about why
these data sets were chosen.
Comment 26: The proposed action is arbitrary and capricious because
it fails to address the likely redistribution of halibut and use the
best available information from both the EBS and the northern Bering
Sea trawl surveys to establish its abundance-based bycatch limit.
Response: NMFS disagrees. After substantive and lengthy
consideration during the public Council process, the Council
recommended and this action implements an annual process for
determining the Amendment 80 sector halibut PSC limit that links the
PSC limit to halibut abundance using two indices of halibut abundance.
The two indices selected (IPHC index and the NMFS EBS index) were
determined by the Council's SSC to be the best scientific information
available. Data from the northern Bering Sea trawl survey is an input
into the model used to generate the IPHC index, so the data are
incorporated into the process for establishing the Amendment 80 halibut
PSC limits implemented under this action; however, it was not selected
as a primary index upon which to base the annual PSC limits. A summary
of the NMFS EBS index and the IPHC index are provided above in the
preamble to this final rule as well as a detailed description is
provided in Section 1.6 of Analysis.
Comment 27: By providing an ``average'' estimate of costs for the
entire sector based on a limited set of years, not incorporating
estimates of all direct and indirect costs, and not examining the true
potential costs of the proposed action, NMFS presents an inaccurate
assessment of the impacts that does not consider all of the best
scientific information available and is otherwise arbitrary.
Response: NMFS disagrees. NMFS recognizes that the impacts of this
action on the Amendment 80 sector and their efficiency and
profitability will vary by year, depending on environmental conditions,
economic conditions, and other variables. This variability is analyzed
and accounted for in the development of this action. The Council and
NMFS chose to use the 2016 through 2019 dataset because it is more
likely to be predictive of potential future costs as explained in
Section 5.3.2 of the Analysis.
National Standard 3
Comment 28: NMFS provides no rational explanation for how the
halibut stock is managed as a unit throughout its range consistent with
National Standard 3. National Standard 3 requires that stocks be
managed as a unit throughout its range to the extent practicable.
National Standard 3 also encourages NMFS to coordinate with other
governments, agencies, and councils to develop an FMP for any stock
overlapping jurisdictions.
Response: Management of the halibut stock is not regulated by the
Magnuson-Stevens Act or its National Standards, including National
Standard 3. The Convention for the Preservation of the Halibut Fishery
of the Northern Pacific Ocean and Bering Sea and the Northern Pacific
Halibut Act of 1982 established the governing body (IPHC) and processes
for managing halibut throughout its range. Section 5(c) of the Halibut
Act provides that the Council may develop regulations within U.S.
waters over halibut provided that they are not in conflict with the
IPHC's regulations and that they are approved by the Secretary of
Commerce.
The IPHC manages Pacific halibut as a single stock between
California and the upper reaches of its range in Alaska. This action
does not change the direct management of the halibut stock in any way.
Rather, this action modifies management of the BSAI groundfish
fisheries and links the halibut PSC limit for the Amendment 80 sector
to halibut abundance. As explained below, through the BSAI groundfish
FMP, NMFS manages groundfish stocks consistent with National Standard
3.
Comment 29: The proposed action would manage groundfish stocks very
differently depending on who is fishing them in violation of National
Standard 3. The BSAI yellowfin sole fishery would have more restrictive
halibut PSC provisions when being fished by trawl vessels in the
Amendment 80 sector than in the TLAS fishery.
Response: The Council and NMFS determined that Amendment 123 and
this final rule are consistent with National Standard 3, as explained
in Section 7.1 of the Analysis. National Standard 3 states that, to the
extent practicable, an individual stock of fish shall be managed as a
unit throughout its range, and interrelated stocks of fish shall be
managed as a unit or in close coordination (16 U.S.C. 1851(a)(3)).
National Standard 3 guidelines explain how to structure appropriate
management units for stocks and stock complexes (Sec. 600.320). The
Guidelines state that the purpose of the standard is to induce a
comprehensive approach to fishery management (Sec. 600.320(b)). The
guidelines define ``management unit'' as ``a fishery or that portion of
a fishery identified in an FMP as relevant to the FMP's management
objectives,'' and state that the choice of a management unit ``depends
on the focus of the FMP's objectives and may be organized around
biological, geographic, economic, technical, social, or ecological
perspectives'' (Sec. 600.320(d)). National Standard 3 does not require
an FMP to treat different sectors the same because they fish the same
stock, and it does not preclude setting bycatch limits that differ by
sector.
The BSAI halibut PSC limit is assigned to three sectors and the CDQ
Program. The halibut PSC limit is apportioned to the Amendment 80
sector to execute all their fisheries, not only yellowfin sole. The
Amendment 80 cooperative decides how, among the fisheries that are open
for directed fishing, to use their PSC limit. In years where there is
an Amendment 80 limited access fishery, halibut PSC is assigned to the
Amendment 80 limited access fishery, and it is apportioned into PSC
allowances for trawl fishery categories according to the procedure in
Sec. 679.21(b)(1)(ii)(A)(2) and (3). The BSAI trawl limited access
sector's halibut PSC limit is also apportioned into PSC allowances for
trawl fishery categories according to the procedure in Sec.
679.21(b)(1)(ii)(A)(2) and (3).
Due to the high PSC use by the Amendment 80 sector, the Council
chose to focus this action only on the Amendment 80 sector; see
response to
[[Page 82751]]
Comment 13 for details. For more information about halibut management
and bycatch in the different fishery sectors, see the preamble for the
proposed rule (87 FR 75570, December 9, 2022). See the response to
Comment 16 for an explanation of other actions to reduce halibut PSC
limits in other fisheries.
National Standard 4
Comment 30: NMFS fails to determine whether the proposed action is
an allocation. NMFS's failure to determine whether the proposed action
is an allocation as a threshold matter violates the Magnuson-Stevens
Act and is arbitrary. NMFS muddles the record with statements
suggesting that the proposed action is and is not an allocation.
Response: NMFS disagrees. National Standard 4 states that
conservation and management measures shall not discriminate between
residents of different states and provides guidance regarding fair and
equitable distribution of fishing privileges if it becomes necessary.
NMFS does not consider this action to be an allocation of fishing
privileges under National Standard 4 but has provided analysis to show
that, even if it were an allocation, it is consistent with National
Standard 4. To be an allocation of fishing privileges, the National
Standard 4 guidelines state there must be a direct and deliberate
distribution of the opportunity to participate in a fishery among
identifiable, discrete user groups or individuals. While management
measures can have indirect allocative effects, only those that result
in direct distribution of fishing privileges are allocations for
purposes of National Standard 4. The Analysis states that, under the
set of alternatives considered, there is no direct allocation or
assignment of fishing privileges to the directed halibut fishery
participants, nor any other allocation under National Standard 4.
At times, the Analysis may refer to a ``PSC allocation'' e.g.,
Analysis at page 242 (``When a PSC allocation is reached''). In that
context, allocation carries its plain meaning (apportionment or
distribution) which is distinct from National Standard 4's usage, i.e.,
direct and deliberate distribution of fishing privileges. NMFS
acknowledges that it might have been able to avoid some confusion had
it used the terms ``limit'' or ``apportionment'' where appropriate in
that context.
Comment 31: The proposed action violates National Standard 4
because it allocates or assigns fishing privileges among various U.S.
fishermen, but this allocation is not ``[f]air and equitable to all
such fishermen.'' Any allocation of halibut from the Amendment 80
sector to the directed halibut fishery is not fair or equitable because
the negative effect on the Amendment 80 sector is extremely
disproportionate to any benefit that could be realized by the directed
halibut fishery. NMFS also fails to provide any interpretation of the
term ``fair and equitable,'' and its application of that term in its
analysis is, at best, cursory and conclusory. NMFS's assertion that
this proposed action provides a fair and equitable allocation is both
baseless and unexplained.
Response: As explained above (see response to Comment 30), this
action is not an allocation under National Standard 4. But even if it
were, it is fair and equitable and consistent with National Standard 4.
As explained in the response to Comment 12, the reason for focusing on
the Amendment 80 sector is due to the high proportion of the halibut
PSC used in that sector. While the action could impose regulatory costs
to one sector, the actual cost borne does not determine whether the
action is fair, equitable, reasonably calculated to promote
conservation, or provides an excessive share to anyone. NMFS determined
that the costs were reasonable when balanced with the purpose and need,
and the conservation, social, management, and environmental impacts.
NMFS also determined that the action is fair and equitable because this
action links halibut PSC limit for the Amendment 80 sector to levels of
halibut abundance. Allocation of halibut to the directed halibut
fishery is not the purpose of this action, and this action makes no
such allocation. The Analysis makes clear that under the existing
management regulations applicable to the directed halibut fleet, the
IPHC establishes the annual catch limits for the directed halibut
fishery. Any benefit to the directed halibut fishery is a potential,
secondary benefit to the action. See the response to Comments 32
through 38 below for further discussion on the consistency of the
alternatives with National Standard 4.
Comment 32: Amendment 123 will begin to address conservation and
equity issues in halibut management and will provide benefits to coast-
wide North Pacific stakeholders and communities in both the short- and
long-term. The amendment allows more of the harvesters of BSAI halibut
to share in its conservation by establishing abundance-based measures
for catch limits. It also provides much needed equity for Alaskans who
rely on halibut for not only income but also food security, cultural
traditions, and many other aspects of community well-being that cannot
be captured in economic data alone. This is a more equitable mechanism
for allocating conservation responsibilities and, therefore,
complements the intent of National Standard 2 and National Standard 4.
Response: NMFS agrees. The problematic nature of the no-action
alternative for directed halibut fishery participants under halibut low
abundance conditions is recognized in the Council's purpose and need
statement. The action alternatives propose a range of halibut PSC limit
reductions under high to low abundance conditions. Amendment 123
includes reductions under all but high IPHC index conditions and, in
that case, proposes no change to the halibut PSC limit, thus providing
equality for all users at times of reduced halibut abundance. Between
1998 and 2016, the PSC limit for the Amendment 80 sector would have
ranged between 1,745 mt and 1396 mt (20% reduction). In years after
2016 the IPHC index shows a decline in overall halibut abundance in
Area 4 that has resulted in notable harvest reductions among the direct
halibut fishery participants and would have resulted in a 25% reduction
in the Amendment 80's PSC limit had this action been in place.
Comment 33: The proposed action cannot be reasonably expected to
result in any increase in harvest opportunities in Area 4 because the
IPHC establishes catch limits in Area 4. If there are any increases in
abundance in Area 4, there is no guarantee that the directed halibut
users in Area 4 would benefit. By relying on such contingencies over
which NMFS has no control, and that are not subject to the Magnuson-
Stevens Act, the purpose and need statement is irrational,
insufficient, uncertain, and unlawful.
Response: This comment mischaracterizes the action's purpose and
need. The purpose of this action is to link the halibut PSC limit for
the Amendment 80 sector to halibut abundance. This action will ensure
that the Amendment 80 sector's use of halibut PSC does not become a
larger proportion of the overall halibut PSC in the BSAI in years of
lower levels of halibut abundance which will promote conservation of
the halibut stock. This action does not allocate halibut harvest
opportunities in Area 4. Halibut management is explained in Section 4.4
of the Analysis. The purpose and need statement includes the possible
indirect result that the action may provide additional harvest
opportunities in the directed halibut fisheries. However, that
[[Page 82752]]
would be an ancillary effect if it occurred, not the primary purpose of
the action. Though there is much uncertainty about the magnitude and
timing of possible benefits to the directed halibut fishery in Area 4,
it is reasonable to recognize the possibility of these indirect
benefits in the purpose and need statement for this action.
Comment 34: NMFS provides no interpretation of the term
``reasonably calculated to promote conservation'' and otherwise fails
to rationally explain why the proposed action is ``reasonably
calculated to promote conservation.'' The Analysis contradicts NMFS's
conclusion that this action will promote conservation, because the
proposed action will have no effect on the conservation of the halibut
stock. Amendment 123 is not consistent with National Standard 4 because
it does not improve conservation of halibut.
Response: The National Standard guidelines define the ``promotion
of conservation'' at 50 CFR 600.325(c)(3)(ii), and the definition
includes actions that encourage a rational, more easily managed use of
the resource. An action may also promote conservation (in the sense of
wise use) by optimizing the yield in terms of size, value, market mix,
price, or economic or social benefit of the product.
The Council and NMFS determined that Amendment 123 and this final
rule are consistent with National Standard 4, as explained in Section
7.1 of the Analysis. NMFS notes that the Analysis indicates that none
of the alternatives will affect overall halibut spawning stock biomass,
which is measured coastwide from California to Alaska. Each action
alternative, however, would set the Amendment 80 sector's halibut PSC
limit at or below the current level depending on indices of halibut
abundance. The reduction of halibut bycatch mortality is a conservation
measure; by definition, lower halibut PSC limits will result in lower
halibut mortality, which is expected to provide benefits to the
coastwide halibut stock, the directed halibut fisheries, or both. Given
typical past IPHC practice, NMFS expects that much of the biomass
conserved by this measure will accrue to the directed commercial
halibut fishing limits. Later harvest of conserved halibut does not
affect this action's conservation benefit. The IPHC's action with
regard to halibut conserved under this action is neither necessary nor
detrimental to this action or its analysis. Given the economic and
cultural value of halibut and the competing interests of the
commercial, recreational, sport, and subsistence users, the Council and
NMFS's decision to create a bycatch management program that restricts
bycatch further when halibut abundance is low represents a more
rational approach to managing the halibut resource and promotes its
wise use.
In addition, the halibut ``stock'' is distinct from and broader
than the ``spawning stock biomass'' and is defined in the Magnuson-
Stevens Act at 16 U.S.C. 1802(42) (``stock of fish'') as a species,
subspecies, geographical grouping, or other category of fish capable of
management as a unit. Conserved fish may benefit the stock even if they
do not immediately increase the spawning stock biomass, including by
greater survival of small halibut, i.e., under 26 inches in size, which
are expected to have longer-term positive impacts on the stock and
directed fishing.
Comment 35: It is unfair that under the static PSC limit of 1,745
mt, when BSAI halibut abundance declines PSC in Amendment 80 fisheries
can become a larger proportion of total halibut removals in the BSAI,
particularly in Area 4CDE, and can reduce the proportion of halibut
available for harvest in directed halibut fisheries. This has had
disproportionately negative impacts on local participants in the
directed halibut fishery.
This action would see PSC limits rise and fall based on the
abundance of halibut. This is a compromise that establishes a measure
of social equity and resource conservation. Bering Sea halibut
fishermen will see immediate benefits of increased directed catch
limits which will support Bering Sea communities.
Response: NMFS acknowledges the support for this action. The
purpose and need statement recognizes that when BSAI halibut abundance
declines, halibut PSC in Amendment 80 fisheries can become a larger
proportion of total halibut removals in the BSAI, particularly in Area
4CDE, and can reduce the proportion of halibut available for harvest in
directed halibut fisheries. The full purpose and need statement is
available in Section 1.2 of the Analysis (see ADDRESSES). NMFS agrees
that Bering Sea halibut fishermen may benefit from this action;
however, the timing and magnitude of those benefits are uncertain.
Comment 36: NMFS fails to explain why it must take action to
achieve ``equity'' or how this action improves equity.
Response: The Council recommended, and NMFS is implementing, this
action to link Amendment 80 halibut PSC limits to levels of halibut
abundance. This action reduces bycatch of halibut to the extent
practicable and also reflects equitable considerations between
groundfish fishermen and directed halibut users. This action will
reduce Amendment 80 halibut PSC limits when halibut abundance
decreases, which is analogous to what typically happens to the harvest
limits of the direct halibut fishery when abundance decreases. This
action will reduce the disparity between the directed halibut fishery
and the Amendment 80 sector by implementing PSC limits for the
Amendment 80 sector that fluctuate according to halibut abundance. This
will mean that, annually, indices of halibut abundance will be used to
establish the Amendment 80 PSC limit. The IPHC will also use indices of
halibut abundance to establish the directed halibut fishery catch
limits. This action may benefit the stock and it may result in
increased opportunities for directed halibut fishing among the
recreational, sport, subsistence, and commercial users.
This action minimizes halibut bycatch in the Amendment 80 sector to
the extent practicable. There is no specific requirement that a bycatch
minimization measure achieve ``equity.'' Equitable considerations,
however, serve varying roles in the development of actions under the
Magnuson-Stevens Act. For example, section 303(a)(14) of the Magnuson-
Stevens Act requires FMPs to allocate any fishery harvest restrictions
or recovery benefits fairly and equitably among the commercial,
recreational, and charter fishing sectors in the fishery. Similarly,
under National Standard 4 and its guidelines, allocations of fishing
privileges must be fair and equitable. Equitable considerations are
also relevant to determinations made under E.O. 12866 and E.O. 13563.
It was well within the Council's purview to require lower bycatch
levels during times of low abundance given that the directed fishery is
expected to have lower harvest levels at times of low abundance. The
Council and NMFS view this as a more equitable approach. The term
``equitable'' in this case has its common meaning and does not carry a
particularized statutory or regulatory definition.
Comment 37: The purpose and need statement does not mention
``equity.'' Thus, NMFS's stated justification for the proposed action
(i.e., that it is ``equitable'') arbitrarily and unlawfully fails to
satisfy or otherwise address the stated purpose and need. It is
arbitrary for NMFS to conclusively determine that the proposed action
is ``fair and equitable'' (presumably on National
[[Page 82753]]
Standard 4 grounds) without even determining whether its proposed
action constitutes an allocation.
Response: NMFS does not consider this action to be an allocation as
described in response to Comment 30. The Council's purpose and need
statement for this action is included in Section 1.2 of the Analysis.
This action links the halibut PSC limit for the Amendment 80 sector to
levels of halibut abundance. Section 5 of the Analysis addresses how
this action achieves such conservation through the minimization of the
Amendment 80 sector's halibut bycatch to the extent practicable and
improves consistency with the IPHC's management of halibut.
This final action also achieves an equitable outcome because, at
decreasing levels of halibut abundance, NMFS expects the IPHC to reduce
total halibut mortality limits which will directly influence the
directed halibut catch limits and under this action the Amendment 80
sector's PSC limit will also be reduced. This is in contrast to the
previous static PSC limit of 1,745 mt, which meant that the Amendment
80 sector's PSC constituted a greater proportion of overall halibut
mortality in the BSAI when halibut abundance decreased. This was
exemplified in 2018 when the Amendment 80 halibut PSC limit accounted
for 49 percent of the IPHC's 3,559 mt halibut mortality limit for Area
4. By diminishing that effect, this action conserves halibut and also
achieves a more fair and equitable outcome.
Comment 38: This proposed action violates National Standard 4
because it discriminates against residents of different states by
establishing a regulation that would limit the harvesting activities of
only one sector, and effectively one ``person'' (the Amendment 80
cooperative), which is incorporated in only one state. Amendment 80
would be the only sector or fishery subject to an abundance-based PSC
limit.
Response: NMFS disagrees. While the Amendment 80 cooperative may be
incorporated in Washington, the residency of the Amendment 80
cooperative or any of its members, employees, or associated people is
not the basis of this action. This action is a conservation and
management measure, applicable to the entire Amendment 80 sector
without regard to state of incorporation or residency. The Analysis on
pages 17 and 85 and the response to Comment 16 explain the rationale
behind focusing this action on the Amendment 80 sector.
National Standard 5
Comment 39: NMFS did not consider efficiency in the utilization of
fishery resources, as National Standard 5 requires. The Analysis
describes the various ways in which the proposed action would reduce
efficiency. The proposed action increases inefficiency and cost and
results in a negative net benefit to the Nation.
Response: NMFS disagrees. The Council and NMFS determined that
Amendment 123 and this final rule are consistent with National Standard
5, as explained in Section 7.1 of the Analysis. National Standard 5
states that conservation and management measures shall, where
practicable, consider efficiency in the utilization of fishery
resources; except that no such measure shall have economic allocation
as its sole purpose. Efficiency under National Standard 5 is a broad
concept that considers efficiency not just in one sector or solely in
costs but includes utilization of fishery resources (Sec. 600.330(b)).
This means that, in terms of aggregate costs, efficiency becomes a
conservation objective, where conservation constitutes wise use of all
resources involved in the fishery, not just the directed fishery
stocks. While a perfectly efficient fishery would harvest the OY with
the minimum use of economic inputs such as labor, capital, interest,
and fuel, these economic concerns are not the only aspects to consider
when analyzing the potential impacts of a management action. National
Standard 5 says the measures must consider efficiency but does not
mandate the most efficient structure. Efficiency may be reduced to
reach the BSAI FMP's social or biological objectives, which includes
the reduction of bycatch and waste.
National Standard 6
Comment 40: NMFS fails to explain how the proposed action is
consistent with National Standard 6 because the proposed action would
create highly restrictive PSC limits for only the Amendment 80 sector
and would hinder the ability of the Amendment 80 sector to adapt to the
uncertain effects of climate change on fish stocks in the region.
Response: NMFS disagrees. National Standard 6 states that
conservation and management measures shall take into account and allow
for variations among, and contingencies in, fisheries, fishery
resources, and catches. Amendment 123 and this final rule take into
account the variability in and contingencies for Amendment 80 sector
fishery operations. The Analysis discusses these at length, including
the creation of table 58 to part 679, which provides for yearly
flexibility, takes into account changes in environmental and other
factors, and provides for variability. Changes in methods used by
fishermen to avoid halibut PSC are noted as a possibility for improving
halibut avoidance by the Amendment 80 sector, in that new developments
may help make PSC limits less constraining. Changes in the environment
and economics are discussed to the extent practicable in the Analysis.
Section 3.3 of the Analysis gives evidence that the Amendment 80 sector
has been in a near-constant state of change during the analyzed period
and that the way in which historical fishery data were used for the
impact analysis in Section 5.3.2 should be carefully considered, which
they were.
Comment 41: Amendment 123 is highly likely to cause the
consolidation of the majority of Amendment 80 harvest opportunities
into fewer vessels, because many vessels will not have adequate halibut
PSC limits to harvest their allocations and may lead to even greater
consolidation in the fishery, and this important factor is ignored by
NMFS.
Response: In Section 5.3.2.3 of the Analysis, NMFS analyzed the
practicability of meeting the PSC limits considered, including the
possibility that this action may cause consolidation of harvest
opportunities into fewer vessels in the fishery. In Section 5.3.2.5 of
the Analysis, NMFS recognizes that this is a possible outcome and did
not overlook it.
Comment 42: The proposed action is not consistent with National
Standard 6 because NMFS relies on the ``average'' impact of the
proposed action, and this does not comply with requirements at Sec.
600.335(b). NMFS fails to consider the variations that occur in the
fishery and the highly variable impacts on the Amendment 80 sector.
Using average PSC use from the years 2016 through 2019 does not capture
the full range of inter-annual variability in halibut PSC use by the
Amendment 80 sector as well as the full range of reasons why this
variability occurs.
Response: The Council and NMFS determined that Amendment 123 and
this final rule are consistent with National Standard 6, as explained
in Section 7.1 of the Analysis. Here, NMFS did not rely on the average
impacts in its decision-making but considered the range of impacts. To
account for variability and in consideration of a range of impacts,
NMFS and the Council use a matrix of various abundance levels derived
from two indices and they
[[Page 82754]]
generate a range of halibut PSC limits. Table 58 to part 679 was
specifically designed to be flexible in response to the abundance of
the halibut stock.
The Analysis includes the most recent data available at the time of
publication, and notes that the Council considered 2016 through 2019 to
be the appropriate time period to evaluate halibut PSC use because it
reflects Amendment 80 sector operations under their Halibut Avoidance
Plan and deck sorting, along with other available tools to avoid
halibut and reduce halibut mortality. In Section 5.3.2.2.3 of the
Analysis, NMFS acknowledges that halibut PSC use is variable due to a
wide range of factors, including ocean conditions. Section 5.3.2.3.2 of
the Analysis discusses potential impacts of changing environmental
conditions on the practicability of the Amendment 80 sector to avoid
bycatch, particularly as it relates to warmer Bering Sea water
temperatures and spatial patterns of target fisheries. Further, Section
5.3.2.5 of the Analysis notes that external factors, such as climate
change, are also anticipated to have an impact on Amendment 80 halibut
mortality rates. Table 2-5 in Section 2.1 of the Analysis describes the
variation of PSC use found in those years.
Comment 43: NMFS's disapproval of Amendment 22 to the Mackerel,
Squid, and Butterfish Fishery Management Plan is instructive when
analyzing consistency with National Standard 6. This action is
inconsistent with National Standard 6 for similar reasons: it will
result in reduced fishing opportunities and inefficiencies without
conservation need or other rationale; it will hinder the Amendment 80
sector's ability to adapt to climate change effects; it will reduce
flexibility needed to respond to shifting and evolving markets; and it
is likely to cause consolidation of the fishery.
Response: NMFS notes that Amendment 22 to the Mackerel, Squid, and
Butterfish Fishery Management Plan (Amendment 22) is from the Mid-
Atlantic Fishery Management Council. Amendment 22 would have removed
vessels from the fishery by regulation to consolidate the fleet and
NMFS disapproved it because there was insufficient evidence to support
the purpose and need and Council's rationale for the action. Each
Fishery Management Council develops fishery management plans and
management measures independently for the specific management goals and
objectives for each fishery. Therefore, comparison across regions,
Councils, and fisheries is not a useful means of assessing the merits
of a specific action. Amendment 22 should be viewed in context and
based on the NMFS analysis prepared for that action. At the time of
disapproval, NMFS offered five reasons for its disapproval in broad
terms. Those circumstances and the analysis, decision, and proposed
Amendment 22 are very different from the circumstances, analysis, and
decision at issue in this action. The disapproval of Amendment 22 is
neither comparable nor instructive to this action.
National Standard 7
Comment 44: The proposed action is not consistent with National
Standard 7 because it is expected to increase Amendment 80 operating
costs and reduce fishing opportunities in years of low halibut
abundance. This action is not practicable and does not minimize costs
because NMFS envisions bankruptcy as a viable and reasonable outcome.
NMFS should follow the example of disapproved Amendment 22 to the
Mackerel, Squid, and Butterfish FMP. That action was found to not be
necessary for conservation, did not solve the perceived race to fish,
and reduced flexibility through restrictive possession limits and, as a
result, was determined to be directly contrary to the intent of
National Standard 7.
Response: NMFS disagrees. The Council and NMFS determined that
Amendment 123 and this final rule are consistent with National Standard
7, as explained in Section 7.1 of the Analysis. National Standard 7
promotes the greatest freedom of action in business and recreation, to
the extent such action is consistent with ensuring wise use of the
resources and reducing conflict in the fishery. This action seeks to
ensure the wise use of the resource by reducing halibut PSC when
abundance of halibut is low. As described in Section 3.3 of the
Analysis, the Amendment 80 sector operates as a cooperative, so when
operational challenges arise within the cooperative, the cooperative
may implement resolutions and improvements. Section 5.3 of the Analysis
describes how operating costs may increase for the Amendment 80 sector
and that the potential for revenue decreasing exists.
Despite the potential for decreasing revenue, the Analysis does not
conclude that the bankruptcy of the fleet is likely to occur. The Mid-
Atlantic Fishery Management Council Illex squid fleet action (Amendment
22) referenced by commenters would have removed vessels by regulation
to consolidate the fleet, which is a very different type of action than
this action to implement Amendment 123. As explained in response to
Comment 43, each Fishery Management Council develops fishery management
plans and management measures independently for the specific management
goals and objectives for each fishery. Therefore, comparison across
regions, Councils, and fisheries is not useful in this context and the
disapproval of Amendment 22 is neither comparable nor instructive to
this action.
Comment 45: The proposed action fails to ensure wise use of fishery
resources or reduce conflict as required under National Standard 7. The
Amendment 80 fishery is responsible for a fraction of the overall
coastwide halibut bycatch. In 2021 and 2022, halibut bycatch in the
directed halibut fishery was at record low amount (in pounds) and
represented approximately 10 percent and 9 percent, respectively, of
total halibut removals from all sources. Halibut bycatch throughout the
coastwide range of the halibut stock is at a record low of only 9
percent of total halibut removals.
Response: Halibut bycatch in the BSAI accounts for more than half
of the coastwide total halibut bycatch. In the years 2010 through 2019,
the Amendment 80 sector accounted for approximately 60 percent of the
halibut bycatch mortality in the BSAI groundfish sectors (see Table 3-
18 in the Analysis). By reducing the Amendment 80 sector halibut PSC
limit in years of low halibut abundance, this action ensures the wise
use of fishery resources. Halibut bycatch in the directed halibut
fishery or by other fisheries is outside the scope of this action. As
explained in response to Comment 16, other actions have or will address
some of that bycatch. The fact that it will continue to occur, however,
does not mean that this bycatch reduction action fails to ensure the
wise use of fishery resources. Otherwise, NMFS could never take any
discrete or incremental action to solve wise use concerns in one
fishery.
National Standard 8
Comment 46: NMFS erroneously concluded that this action provides
for the sustained participation of fishing communities and minimizes
adverse economic impacts on such communities while balancing the
requirements of the Magnuson-Stevens Act. This conclusion is not
supported by the Analysis prepared for this action and does not fully
consider the significant adverse impacts of the proposed action on the
fishing communities that rely upon the Amendment 80 sector. NMFS does
not analyze the certain and adverse impact of the proposed action on
communities reliant on the Amendment 80 fishery,
[[Page 82755]]
compared to any benefits to communities reliant on the directed halibut
fishery (which are uncertain).
Response: NMFS disagrees. National Standard 8 requires conservation
and management measures shall take into account the importance of
fishery resources to fishing communities by utilizing economic and
social data that are based upon the best scientific information
available in order to provide for the sustained participation of such
communities; and to the extent practicable, minimize adverse economic
impacts on such communities. NMFS analyzed the impacts of this action
on communities in Appendix 1 and in Section 5.5 of the Analysis,
including impacts to communities that rely on the Amendment 80 sector
as well as other communities, including subsistence users. While NMFS
looked at possible benefits to communities that rely on directed
fishing for halibut, those benefits were only seen as a possible
indirect benefit of this action, as increasing allocation to the
directed halibut fleet is a function of the IPHC and outside the scope
of this action. This action takes into account those competing
interests and strikes a balance among them and among the National
Standards.
Comment 47: Much of the analysis of community impacts is
specifically focused on either a single community, Saint Paul, or a
small group of discrete communities. NMFS's effort to reallocate
halibut to benefit these communities (or Saint Paul individually)
violates National Standard 8.
Response: The Council and NMFS determined that Amendment 123 and
this final rule are consistent with National Standard 8, as explained
in Section 7.1 of the Analysis. The social impacts analyzed address a
number of communities with directed halibut fisheries or other impacts
and are not solely focused on Saint Paul. Saint Paul is discussed at
length, however, because it is within a region with some of the highest
halibut revenues and halibut dependency, meaning the potential indirect
benefits of this action could more significantly affect this specific
community. Further, as explained in response to Comment 31, this action
is not an allocation, and it does not reallocate halibut to
communities. The purpose of this action is to link the halibut PSC
limit for the Amendment 80 sector to halibut abundance. This action
will minimize halibut bycatch to the extent practicable and thus
contribute to the conservation of the halibut resource, especially at
times of low abundance.
National Standard 9
Comment 48: NMFS provided no guidance to the Council or the public
on the interpretation of the term ``practicability'' during
consideration of this action, as required by National Standard
guidelines. When Congress enacted the term in 1996, it stated that
Regional Fishery Management Councils should make reasonable efforts in
their management plans to prevent bycatch and minimize mortality, but,
in so doing, could not ban a type of fishing gear or a type of fishing.
Furthermore, Congress stated that practicability requires an analysis
of the cost of imposing a management action.
Response: Guidance on the interpretation of National Standard 9 is
given in Sec. 600.350, which discusses a number of considerations
relevant to the practicability analysis (63 FR 24212, May 1, 1998). As
stated in the National Standard guidelines, inconvenience is not an
excuse; bycatch must be avoided as much as practicable, and bycatch
mortality must be reduced until further reductions are not practicable.
Adherence to the National Standards is not discretionary, and the
Councils are required to re-examine the conservation and management
measures contained in their FMPs for ways to reduce bycatch on a
continuing basis to ensure that bycatch is minimized to the extent
practicable. This action is the result of NMFS's consideration of the
costs and benefits of the PSC limit reductions at low abundance, and
while NMFS agrees that there may be costs associated with the action,
those costs do not exceed what is practicable. This analysis is
consistent with National Standard 9, including the guidelines and the
Magnuson-Stevens Act.
Comment 49: The proposed action is feasible and practicable because
existing halibut avoidance tools are not fully utilized within the
Amendment 80 sector. Because of the individual vessel discretion
inherent in the application of existing bycatch reduction tools,
available data cannot establish the extent to which existing tools may,
or may not, have been fully utilized in recent years. The Amendment 80
sector could have chosen to not fully use available halibut avoidance
measures to artificially inflate halibut PSC rates to improve their
argument against this action by alleging that further halibut
reductions are infeasible and impracticable.
Response: NMFS acknowledges this comment.
Comment 50: The proposed action is inconsistent with National
Standard 9 because the Amendment 80 sector has already reduced halibut
PSC usage to the maximum extent practicable using all available tools.
The sector has reduced its halibut PSC usage by nearly 35 percent since
2014. Amendment 123 would impose substantial operational costs at a
time when costs are already rising, and it does not provide additional
tools to help the fleet achieve the bycatch reductions expected to be
imposed by this action.
Response: The Council and NMFS determined that Amendment 123 and
this final rule are consistent with National Standard 9, as explained
in Section 7.1 of the Analysis. The Council recommended and NMFS agrees
that further halibut bycatch reductions are practicable through the
improved use of existing bycatch reduction tools. In the Analysis
prepared for Amendment 123, NMFS acknowledged that the Amendment 80
sector has already undertaken efforts and expenditures to reduce
halibut bycatch and that dramatic increases in halibut avoidance or
reductions in halibut mortality are not expected using existing bycatch
reduction tools. However, additional incremental improvements are
anticipated to be realized under lower halibut PSC limits and, if not
realized, the Amendment 80 sector may forgo some amount of
profitability to continue to reduce halibut mortality.
New bycatch reduction tools are not necessary for this action to be
practicable. The amount of halibut deck sorting varied during the 2016
through 2019 period and decreased in 2020. When deck sorting was
reported on a vessel during any week from 2016 through 2019, the vessel
was deck sorting about 70 to 80 percent of halibut that were brought
onboard the vessel. A change occurred in 2020 that resulted in the
percentage of halibut that were deck sorted falling to 61 percent; in
2021 (through mid-April) the percentage of halibut deck sorted was
estimated to be 49 percent. Some have attributed the declining use of
halibut deck sorting after 2019 to lower bycatch of halibut, meaning
that individual Amendment 80 vessels did not need to deck sort to
reduce halibut mortality because they were not encountering halibut at
rates where it was necessary to deck sort. It is possible that with
under a lower PSC limit, the Amendment 80 sector could increase their
use of halibut deck sorting. As illustrated in Section 5.3.2.4 of the
Analysis, the range of PSC limits established by the action are
expected to have differential impacts on Amendment 80 firms. Throughout
the Analysis, NMFS acknowledges that there are many factors, including
choices at the individual firm level and
[[Page 82756]]
vessel operational level that contribute to realized PSC use.
The amount of mortality reduction that may be expected with
associated increased costs or reduced efficiency cannot be quantified
with any certainty. If substantial reduction in halibut mortality is
realized, it is likely to be derived from the development and
implementation of new technologies. The Council and NMFS considered the
potential negative economic and social impacts to the Amendment 80
sector and concluded that this action strikes a balance between
potential costs to the Amendment 80 sector and conservation of the
halibut resource from reductions in bycatch. As explained in the
response to Comment 71, NMFS has analyzed the potential costs
associated with meeting the new bycatch limits and responded to similar
comments in Section 8.4.2 of the Analysis. The Council and NMFS
concluded that increased costs do not mean that further bycatch
reductions are impracticable.
Comment 51: NMFS fails to adhere to Magnuson-Stevens Act section
303(a)(11) because Amendment 123 prioritizes the minimization of
bycatch mortality over the minimization of bycatch overall, while the
statute requires the reverse order of priority.
Response: The purpose of this action is to link the halibut PSC
limit for the Amendment 80 sector to halibut abundance. This action
minimizes halibut bycatch to the extent practicable. Bycatch generally
refers to catching non-targeted fish, while bycatch mortality more
specifically refers to situations where those non-targeted fish die
from their capture. Minimization of halibut bycatch is a purpose of the
action, as stated in the purpose and need in Section 1.2 of the
Analysis. Minimization of both halibut bycatch and bycatch mortality
are expected results of the action, in that lower PSC limits will
require Amendment 80 vessels to avoid halibut bycatch and, to the
extent they cannot reasonably achieve further reductions in bycatch,
use available tools to reduce the mortality of the halibut caught. This
is consistent with the Magnuson-Stevens Act, including section
303(a)(11) and National Standard 9.
Comment 52: The proposed action is not consistent with National
Standard 9, because, as indicated in the Analysis, this action could
shift the location and timing of fisheries, which may result in shifts
of bycatch. As a result the proposed action is not expected to reduce
the bycatch of other species, such as crab, or enhance the resulting
population or ecosystem effects. The impacts on other species were not
analyzed.
Response: The Analysis considers that there may be shifts in timing
and location of fishery operations consistent with the current
operations of bycatch avoidance of multiple species and inter annual
variability in fishing timing and location across sectors. Section 3 of
the Analysis describes crab PSC management in the groundfish fisheries
and the Amendment 80 sector and concludes that no change to crab PSC
management in the Amendment 80 sector is anticipated. Discussion of
potential impacts to bycatch rates for other species in Section 5.6 of
the Analysis is theoretical and identifies that as a possible result of
any bycatch action. Section 6.0 describes impacts to marine mammals,
seabirds, habitat and ecosystem. The Analysis does not indicate that
this action is expected to result in increased bycatch of other species
because this action will not shift the timing and location of fishing
beyond the footprint already analyzed and implemented under the current
management structure. Therefore, NMFS does not expect this action to
increase the bycatch of other species beyond levels already encountered
under existing management measures.
Comment 53: The Proposed Action violates National Standard 9
because it will impose substantial economic impacts on one fleet (the
Amendment 80 sector), which will result in negative net benefits to the
Nation. Additionally, the economic impacts to the Amendment 80 sector
are underestimated according to the SSC's review of the draft Analysis
in April 2021.
Response: NMFS disagrees. Under National Standard 9, the Council
and NMFS considered the net benefits to the Nation, including a range
of economic and non-economic impacts. NMFS analyzed the impacts of this
action on the Amendment 80 sector, the halibut stock, and the directed
halibut fishery in Section 5 of the Analysis. Appendix 1 to the
Analysis includes the SIA, which evaluated community and regional
participation patterns as well as community level impacts and potential
impacts to regional subsistence and sport halibut fisheries.
The SSC April 2021 Minutes on the draft Analysis noted that the
analysis provided an adequate discussion of the important assumptions
that underlie the analysis and their implications for interpreting the
estimated economic impacts. However, the SSC's comments indicated that
the range of revenue impacts may be considerably larger than those
estimated in the Analysis. This implied that uncertainty associated
with revenue impacts may be higher than predicted and that the
Amendment 80 sector's ability to predict and avoid halibut bycatch is
uncertain given the weak correlation with halibut abundance.
Input from the SSC received in April 2021 was taken into account in
subsequent revisions to the Analysis during the Council process.
Section 5.6 of the Analysis concludes that Amendment 123 is likely to
result in a negative net economic benefit to the Nation; however, after
considering the totality of potential impacts, including quantifiable
and non-quantifiable economic and non-economic impacts, the Council and
NMFS concluded that Amendment 123's overall benefits outweigh the
negative economic impacts of this action and that Amendment 123
maximizes the net benefits to the Nation.
Comment 54: NMFS fails to consider the levels of halibut bycatch
that currently exist, or that could exist under this proposed action,
relative to other fisheries that have much higher rates of bycatch that
NMFS has determined are fully compliant with National Standard 9.
NMFS's own National Bycatch Report provides summaries of bycatch in
each region, and in some regions, total bycatch exceeds total catch,
and yet these regions are operating dozens of fisheries that NMFS has
deemed meet the requirement to ``minimize bycatch to the extent
practicable'' and are fully compliant with National Standard 9.
Response: Each Fishery Management Council develops fishery
management plans and management measures independently for the specific
management goals and objectives for each fishery. Therefore, comparison
across regions, Councils, and fisheries is not a useful means of
assessing whether this action's conservation and management measure, to
reduce bycatch at low levels of abundance, minimizes such bycatch to
the extent practicable.
Comment 55: When NMFS implemented Amendment 111, reductions in
halibut PSC were also considered, but large reductions were rejected as
too costly. The Amendment 111 final rule concluded that alternatives
that would have reduced the halibut PSC limit by 30, 35, 40, 45, or 50
percent in the Amendment 80 sector would have come at significant
economic cost to the Amendment 80 sector and fishing communities
participating in the Amendment 80 fisheries. NMFS proposes to impose
costs that are 6 to 14 times higher than those deemed acceptable in
2015 when halibut harvesting opportunities in Area
[[Page 82757]]
4 are 60 percent higher than they were in 2015, and halibut bycatch in
the Amendment 80 sector is 35 percent lower than it was in 2015. NMFS
fails to acknowledge and provide rationale to support its arbitrary and
dramatic reversal in its rationale for imposing such enormously high
costs on a single fishery.
Response: The practicability analysis and determination for
Amendment 111 were particular to the existing time and circumstances at
issue there. The current analysis was conducted with years of
additional information after the approval of Amendment 111. As a
result, NMFS has the benefit of observing and accounting for the
sector's ability to fish under a 1,745 mt PSC limit following Amendment
111 and its ability to adopt and expand existing tools for halibut
avoidance and release to minimize bycatch and bycatch mortality during
that period. The Amendment 111 analysis explained why NMFS decided
against further reductions at that time but did not bind future
decisions using additional and new information. The explanation for the
determination of practicability concerning Amendment 123 is extensively
discussed in the Analysis and includes discussion of Amendment 111 and
its findings (see response to comment 8.3-9 on page 319 of the
Analysis).
National Standard 10
Comment 56: NMFS failed to consult with the U.S. Coast Guard and
industry as required under National Standard 10 to ensure they
recognize any impact on the safety of human life at sea and minimize or
mitigate that impact where practicable.
Response: NMFS disagrees. The National Standard 10 guidelines
encourage consultation with the U.S. Coast Guard if an action might
affect safety of human life at sea. This can be done through a Council
advisory panel, committee, or other review of the FMP amendment or
regulations. The U.S. Coast Guard has a seat at the Council table and
was engaged during the Council process for this FMP amendment.
Throughout the numerous years Amendment 123 and this action were in
development through the Council process, a substantial amount of public
input was received from the affected industry sector.
Economic Impacts
Comment 57: The proposed action will impose certain and substantial
additional costs ranging from 86 to more than 100 million dollars on
the Amendment 80 sector while only providing speculative benefits to
the directed halibut fishery. NMFS has concluded these impacts will
result in negative net benefits to the Nation.
Response: NMFS did not conclude that Amendment 123 will result in
negative net benefits to the Nation. NMFS analyzed the potential costs
and benefits of the proposed action in Section 5 of the Analysis. The
quantitative analysis of economic net benefits is limited to purely
economic impacts and does not account for non-economic or
unquantifiable impacts. The Council and NMFS weighed the potential for
the Amendment 80 sector to mitigate negative economic impacts through
operational choices; weighed the retrospective estimate of revenue
impacts included in the Analysis; and weighed the non-quantifiable
conservation, social, and management benefits of the abundance-based
management of halibut PSC. The Analysis encompassed consideration of
estimated economic impacts and predicted actual economic impacts and
potential non-economic impacts of the action. NMFS analyzed the range
of possible economic costs to the Amendment 80 sector for the range of
possible PSC limits at different levels of halibut abundance. To the
extent the Amendment 80 fishery can improve implementation of existing
halibut avoidance and survival strategies, or find more efficient ways
to avoid halibut PSC, the expected costs associated with reduced PSC
limits may be mitigated. As described below, if they cannot be
mitigated, the Analysis provides a comparison of what those costs would
have been based on historical catch and bycatch levels. These numbers
were created to compare costs among the alternatives; they do not try
to estimate what the actual, future costs of reducing bycatch will be.
The Analysis used an analytical approach that produced cost
estimates by hindcasting past results as if the alternatives considered
had been in effect in previous years and looked at the potential effect
of the range of PSC limits on Amendment 80 revenues in past years.
Table ES-1-11 on page 42 (and Table 5-21) of the Analysis illustrates
the results of the revenue analysis at the range of PSC limits
analyzed. NMFS acknowledges in the Executive Summary and Section 5 of
the Analysis that, based on historical catch and bycatch levels, had
this action been in place in previous years, it could result in an
average estimated revenue reduction for the Amendment 80 sector of 100
million dollars or more. However, these revenue estimates do not
represent stand-alone predictions of future Amendment 80 revenues under
each PSC limit; rather, the Council and NMFS used these estimates to
illustrate the potential differences in direction and magnitude of
impacts among the alternatives considered. The revenue estimates
included in the Analysis do not capture behavioral adjustments such as
changes in targeting, fishing location, or other halibut avoidance
strategies that might have been employed if the various PSC limits were
in effect during those years, nor do they include the costs associated
with such avoidance strategies. The impact estimates are ``upper
bound'' estimates due to the assumption that the Amendment 80 sector
will utilize their entire PSC limit despite historic evidence that
shows that they have not. Further, the estimates contained within the
impact scenarios are not actual impacts, as the response of the
Amendment 80 sector in applying tools such as halibut deck sorting and
spatial redeployment of effort to avoid halibut have not been modeled
and will affect both halibut PSC rates and attainment of TAC, albeit
with potentially reduced efficiency and increased costs of production
leading to negative impacts on producer surplus.
Additionally, the revenue estimates reported in the analysis do not
represent the full scope of the economic impacts associated with the
proposed action alternatives (see Section 5.6 of the Analysis). The
economic impact estimates represent the upper bound of potential lost
harvest opportunity for the Amendment 80 sector as compared to status
quo revenue (Table 5-6 of the Analysis). The economic net benefits
assessment must also be considered within the greater context of all
relevant factors, including distributional impacts, human dignity, and
equity. The Analysis states that the overall economic net benefits are
expected to be negative during future conditions of low halibut
abundance. However, there are instances when there are zero impacts
estimated on Amendment 80 sector revenue such as when halibut abundance
is relatively high.
The Council was clear that the economic impacts of the alternatives
should be compared across alternatives and within the Amendment 80
sector and not used to compare the economic costs to the non-quantified
benefits to the directed halibut fishery. This approach is a cost
effectiveness analysis, which is an economic tool that compares
alternatives to determine which can achieve a desired result at the
lowest cost. In the Analysis prepared for this action, the impacts are
compared to each other for their relative effect of reducing halibut
mortality
[[Page 82758]]
versus their relative scale of the potential effects on annual revenue
of the Amendment 80 sector.
Analysis of the economic net benefits does not imply that the
social, cultural, or environmental impacts and benefits discussed in
the Analysis are not relevant, nor that they can be excluded when
considering overall costs and benefits. To the contrary, the Analysis,
particularly Section 5 of the Analysis, contains extensive discussion
of both economic impacts and impacts that cannot be assessed
monetarily, such as social and cultural impacts.
Benefits to the directed fishery are supported by conservation of
the halibut resource. To the extent halibut PSC can be reduced, the
conserved biomass may be included in the directed fishery catch limit,
as the IPHC has done since 2017 under its spawner per recruit-based
strategy. To the extent such biomass is not harvested by the directed
fishery, it is expected to accrue to the stock, resulting in a long-
term potential increase in the amount of halibut available to the
directed fishery.
Comment 58: The proposed action will negatively impact the
Amendment 80 sector, crew members, and numerous types of support
service businesses. Members of the Amendment 80 sector, a CDQ group, as
well as numerous companies that support the Amendment 80 sector,
provided specific information about the direct negative financial
impacts to the Amendment 80 sector and Dutch Harbor tax revenue, as
well as a comparison of the benefits to halibut crew members and losses
to Amendment 80 crew members. Commenters expect the action to result in
lost harvesting opportunity for the Amendment 80 sector and increased
costs due to bycatch avoidance, longer tows, and processing time that
will reduce profits and limit the Amendment 80 sector in its ability to
replace or make technological upgrades to their vessels as they have in
recent years. As a result, numerous support businesses expect a
reduction in the demand for their services, such as welding, electronic
support, stevedoring, fuel, packaging supplies, general supplies, and/
or other support services.
The proposed action will have substantial adverse impacts on the
Amendment 80 sector crew, the majority of whom are minorities and
people of color. As indicated in the Analysis, Amendment 80 companies
that cannot remain viable under this action will eventually exit the
fishery. Amendment 80 vessels provide middle class and blue collar
American men and women career-path jobs, and the painful impacts of
contraction of the sector will be borne by these hard-working American
fishermen and their families.
Response: NMFS analyzed the impacts of this action, the community
and regional participation patterns in the Amendment 80 fishery and the
BSAI halibut commercial fishery, and the potential community level
impacts of this action in Section 5 and Appendix 1 of the Analysis. The
Analysis included a qualitative analysis of potential downstream
economic impacts and a quantitative analysis of potential revenue
impacts to the Amendment 80 sector. The analytical approach used to
evaluate the impacts to the Amendment 80 sector is described in Section
5.3.1 of the Analysis. The Analysis notes there may be an impact to the
Amendment 80 sector if they cannot reduce their halibut bycatch, but
the exact financial amount could not be determined as Amendment 80
companies did not share their financial data for a detailed analysis.
In any event, the revenue impacts are only one portion of the
analysis that the Council considered in selecting the preferred
alternative. The Council considered the impacts of alternative ranges
of halibut PSC limit reductions on: (1) the halibut stock, (2) directed
halibut fishery participants and communities that are engaged in
directed halibut fisheries in the BSAI and in other Areas, and (3) BSAI
groundfish fishery participants and communities that are engaged in the
BSAI groundfish fisheries. In particular, Section 5.5 on Social and
Environmental Justice summarizes results of Appendix 1, the SIA, which
evaluates community and regional participation patterns in Amendment 80
fishery (including minority population demographics) and the Area 4
halibut commercial fishery as well as potential community level impacts
from the alternatives. The Council considered the detailed information
provided in the analysis for the proposed action.
The costs associated with avoiding halibut are discussed
quantitatively and qualitatively throughout the document, particularly
in Section 5.3.2.3 of the Analysis, where it is stated that all of the
measures that could be implemented to reduce halibut mortality would
have a cost to the fleet and the increased costs limit how those tools
can be implemented while keeping the fleet economically viable. The
gross or net cost directly associated with reducing halibut mortality
is not estimated in the analysis.
The Analysis did not incorporate generally understood but poorly
quantified economic multipliers that would allow for an estimate of the
total economic contributions of the Amendment 80 fishery or the
directed halibut fishery in terms of output, income, employment or
other economic measures. The broad, downstream economic impacts of
commercial fishing can be understood and appreciated without drawing an
equivalency between metrics or existing studies that have fundamentally
different scopes.
Comment 59: In the Analysis, NMFS used different methods to
generate the revenue estimates for the Amendment 80 sector and the
directed halibut fishery sector. Revenues are estimated separately
using different methodologies and are meant to compare impacts across
alternatives within each sector and should not be used to compare
impacts across sectors. By using different methods, NMFS has made it
impossible to measure benefits of this action or compare the impacts
across sectors.
Response: NMFS explains the revenue estimation methodology in
Section 5.3.1 of the Analysis and why it is the best available data.
The methodology used to estimate revenue impacts was reviewed on
several occasions by the Council's SSC, and the SSC concurred with the
methodology used in the Analysis, as noted in the SSC Minutes from May
2021 (see ADDRESSES). The SSC concurred with the assessment of the
inappropriateness of comparing revenue impacts across the two sectors
and recommended that estimated revenue impacts be used only for
comparing across alternatives for a given sector and not for comparing
impacts across sectors. The SSC was concerned that, in its current
form, reporting revenue estimates for each fleet would invite readers
to make inaccurate comparisons across fleets and suggested the analysts
consider whether it may be better to provide no estimate than a
misleading one. In comparing the alternatives, it is not necessary to
be able to directly compare the revenue impacts between the two fleets;
it is merely necessary to compare the relative impacts of each
alternative on each affected fleet.
Comment 60: NMFS should have used the most complete available
dataset that included the years 2010 through 2021 for estimating impact
revenues to the Amendment 80 sector. This wider range of years better
reflects environmental and operational conditions than the dataset used
by NMFS. Using the dataset that narrowly includes 2016 through 2019
does not consider the effects of annual variation and events that
significantly influenced the proportion of the halibut PSC limit used
in 2016 and 2017. These events include the 45 percent reduction in
flatfish
[[Page 82759]]
harvested in 2016 than in the previous 4 years by the Alaska Groundfish
Cooperative and the limited fishing by three Fishing Company of Alaska
vessels in the first quarter of 2017.
Response: As discussed in the Analysis in Section 5.3.2.2, NMFS did
not rely on a single dataset; rather, the analysis includes a number of
different datasets and potential outcomes, as well as their likelihood
of accurately representing future outcomes. After extensive input from
the public, the affected industry, and the Council's SSC, NMFS
concluded that the 2016 through 2019 dataset is likely the best
predictor of potential revenue impacts for the reasons stated in the
Analysis. Data from years prior to Amendment 111's implementation (that
is, prior to 2016) have higher PSC limits and less PSC avoidance
behavior, meaning the 2016 through 2019 period is likely to be more
reliable in predicting future results under lower PSC limits and more
PSC avoidance behavior. As described in Section 5.3.2.2.3 of the
Analysis, NMFS recognizes that the analytical approach used to quantify
potential revenue impacts to the Amendment 80 sector is only
representative of the time period analyzed and it does not incorporate
fishing adaptations or behavioral changes that may occur in the future
since those are too speculative to predict. Additionally, the 2016
through 2019 dataset was not considered in isolation.
Comment 61: The resampling approach used in the Analysis to
estimate revenue impacts to the Amendment 80 sector assumes 100 percent
of the Amendment 80 sector's halibut PSC limit is used each year. In
reality, however, the Amendment 80 sector does not use 100 percent of
its halibut PSC limit and has not done so for the last 10 years. The
result of this evaluation of economic impacts grossly overstates the
likely effects on Amendment 80 sector revenues, and even lower PSC
limits in times of low halibut abundance (as considered under
Alternative 4 in the Analysis) are viable and appropriate.
Response: As explained in Section 5.3 of the Analysis, NMFS agrees
that the economic impact estimates represent the upper bound of
potentially forgone catch and revenue impact as compared to status quo
revenue because this action will reduce halibut PSC at times of low
halibut abundance. The Council and NMFS concluded that the results are
most easily understood by showing 100 percent use to illustrate maximum
adverse impact. Section 5.3.2.1 of the Analysis provides a detailed
discussion on the assumptions and evaluation on the assumption that 100
percent of the PSC limit would be used. Forecasting fleet behavior
under a constraining PSC limit is a challenge in analyses considering
alternative PSC limits; thus, in this case, the Analysis includes an
estimate of the maximum adverse impact.
The revenue estimates reported in Section 5.3.2 of the Analysis
compare the estimates of different alternatives under the same
scenarios to inform the reader of the relative difference in direction
and magnitude of the alternatives. As stated in the Analysis, these
results are not stand-alone predictions of future Amendment 80 revenues
under each PSC limit established by this action. A limitation of this
analytical approach is that estimates reflect only the environmental
conditions and fishing behavior that occurred during the past 10 years.
The Amendment 80 sector is expected to make strategic choices in
harvesting behavior (i.e., prevalence of halibut avoidance strategies
such as deck sorting) that are different from the randomized or
stratified random selection of hauls used in the Analysis.
Given reductions in PSC limits and expected operational changes
such as increased deck sorting, it is most likely that future PSC use
will be similar to what has been seen in the years since 2015 (i.e.,
estimates using 2016 through 2019 or 2017 through 2018 data are most
likely to represent future PSC use). Revenue data for 2020 and beyond
were not available when the Analysis first analyzed revenue impacts.
NMFS did not subsequently include revenue data for 2021 because
Amendment 80 sector operations, along with other fisheries in Alaska,
were negatively affected by COVID-19 mitigation measures and pandemic-
related upheavals in international supply chains and markets.
Comment 62: The Analysis provides only a cursory consideration of
the potential impact of the proposed action on cooperative dynamics and
misstates the potential viability of the Amendment 80 limited access
fishery. The proposed action will effectively eliminate the Amendment
80 limited access fishery as a viable management option.
Response: The Amendment 80 proposed rule (72 FR 30052, May 30,
2007) states that the Council recommended the Amendment 80 Program
specifically to discourage fishing practices that accelerate the race
for fish in the Amendment 80 limited access fishery, and requiring a QS
holder to fully commit to a cooperative would provide additional
incentives to achieve the Amendment 80 Program's objectives. The
Amendment 80 Program was implemented in 2008. Since 2010 there has been
no participation in the Amendment 80 limited access fishery and the
regulations implementing the Amendment 80 limited access fishery remain
unchanged by this final rule. The amount of Amendment 80 halibut PSC
assigned to the Amendment 80 limited access fishery will continue to be
determined as specified in regulations at Sec. 679.91(d)(3).
Comment 63: This action will benefit Alaska communities because the
directed halibut fishery is largely prosecuted by community-based
vessels supporting Alaska-based families and businesses, many times
with few income-producing alternatives. By contrast, the Amendment 80
sector is composed of large Seattle-based factory trawlers doing nearly
all of their rigging, supplying, and support services in the state of
Washington, leaving a minimum of monetary exchange onshore in Alaska.
The high level of Alaskan ownership of the directed halibut fleets
means that most halibut fishing revenues and earnings are spent locally
on goods and services generating benefits for local economies.
Response: NMFS acknowledges the support for this action. See the
responses to comments under the ``Economic impacts'' and ``Directed
Halibut Fishery'' headings for additional discussion of the expected
impacts of this action on the Amendment 80 sector and the directed
halibut fishery, as well as the responses under the ``National Standard
4'' heading for a discussion of state residency.
NEPA
Comment 64: The Analysis fails to utilize a wealth of available and
highly relevant scientific information on how climate change in the
Bering Sea will affect the Amendment 80 sector's ability to catch its
target species under the lower PSC levels of the proposed action.
Response: NMFS is aware of the rapid ecosystem changes in the
Bering Sea ecosystem and the impacts this has had, and will continue to
have, on the spatial extent of the Amendment 80 fishery. Section
5.3.2.3.2 of the Analysis provides a summary of the potential impact of
warming Bering Sea waters on flatfish CPUE as targeted by the Amendment
80 sector and resultant halibut PSC. This summary notes that there is
considerable variation in halibut mortality rates by week, and the
greater use of deck sorting to reduce mortality in years when halibut
could not be avoided makes drawing conclusions difficult. The Analysis
also includes a
[[Page 82760]]
section (Section 6.4) on the status of the ecosystem, and the Ecosystem
Status Report is incorporated by reference into the Analysis. Climate
change uncertainties can be inferred from different time frames used in
the analysis and the discussion of uncertainties in halibut population
dynamics. See Section 8.4.3 on page 381 of the Analysis Comments on
Climate change/Greenhouse gas emissions for additional information.
NMFS acknowledges that changes in the distribution and abundance of
fish stocks due to climate change may affect all sectors of the fishing
industry to varying degrees going forward, and we do not expect the
lower halibut PSC limits due to this action will measurably increase
those effects for the Amendment 80 sector.
Comment 65: NMFS should have written a supplemental EIS, as there
is ample, significant new information that indisputably bears on the
proposed action and its impacts, requiring supplementation of the
Analysis. Such information includes relevant Amendment 80 sector and
halibut fishery data for the years 2020, 2021, and 2022 and
consideration of the implications of recent red king crab biomass
changes on the fleet's ability to avoid halibut. The Analysis should
have evaluated whether a reduced red king crab PSC limit will influence
halibut bycatch rates.
Response: NEPA implementing regulations at 40 CFR 1502.9(d)
instruct agencies to prepare supplements to either draft or final
environmental impact statements if: (1) the agency makes substantial
changes to the proposed action that are relevant to environmental
concerns; or (2) there are significant new circumstances or information
relevant to environmental concerns and bearing on the proposed action
or its impacts.
Not every change requires a supplemental EIS; only those changes
that cause significantly different effects from those already studied
require supplementary consideration. The Supreme Court directs that
``an agency need not supplement an EIS every time new information comes
to light after the EIS is finalized. To require otherwise would render
agency decision-making intractable.'' Marsh v. Oregon Nat. Res.
Council, 490 U.S. 360, 373 (1989). On the other hand, if a major
Federal action remains to occur, and if new information indicates that
the remaining action will affect the quality of the human environment
in a significant manner or to a significant extent not already
considered, a supplemental EIS must be prepared. Ultimately, an agency
is required ``to take a `hard look' at the new information to assess
whether supplementation might be necessary.'' Norton v. S. Utah
Wilderness All., 542 U.S. 55, 72-73 (2004).
NEPA implementing regulations at 40 CFR 1502.9(d)(4) stipulate that
an agency may find that new circumstances or information relevant to
environmental concerns are not significant and therefore do not require
a supplement to an EIS.
NMFS issued its Analysis in December 2022; some of the information
the commenter references was not available to NMFS during the
development of the Analysis. NMFS considered relevant fishery data for
the Amendment 80 sector and directed halibut fishery in approving
Amendment 123 and developing this final rule. Based on this public
comment, NMFS assessed the information from the years 2020, 2021, and
2022 that were not available prior to the publication of the Analysis
on December 9, 2022. NMFS concluded that this new information is not of
a scale nor scope that requires NMFS to supplement the EIS. The new
information does not indicate that the action will affect the quality
of the human environment in a significant manner or to a significant
extent not already considered in the Analysis. Therefore, a
supplemental EIS is not necessary.
Comment 66: The purpose and need statement is unlawfully narrow and
forecloses the consideration of viable alternatives. By narrowing the
purpose in this fashion, the Analysis forecloses the consideration of
other types of bycatch reduction that, if needed, may be more rational,
as well as forecloses consideration of revised or new halibut bycatch
limits for any other fisheries or sectors or by any U.S. West Coast
fisheries (that also have halibut bycatch).
Response: NMFS disagrees that the purpose and need statement is too
narrow, thereby foreclosing the consideration of reasonable
alternatives. In the Analysis, NMFS considered and analyzed five
alternatives, including three options. Throughout the lengthy public
Council and NEPA processes (described in Section 1.3 of the Analysis),
many other ideas were considered and eliminated. Specific alternatives
that were considered but not carried forward are noted in the Analysis
in Section 2.8, including the reasons they were not further analyzed.
The commenter did not offer other alternatives to the proposed action,
and alternatives considering halibut PSC limits for other fisheries are
outside the scope of this action but, as noted above in response to
Comment 16, separate actions have been taken to address halibut PSC in
some other fisheries.
The purpose and need statement was crafted after substantial
consideration by the Council and NMFS. It is reasonably tailored to
meet the identified conservation needs, while balancing other equities.
Agencies have considerable discretion in defining the purpose and need
for their proposed actions, provided that they are reasonable. A
purpose and need statement is unreasonable if the agency defines it so
narrowly as to allow only one alternative from among the
environmentally benign options in the agency's authority, such that the
Analysis becomes essentially a formality. A purpose and need statement
can also be unreasonable if the agency draws it so broadly that an
unreasonably large number of alternatives would accomplish it, and the
project would collapse under the weight of the possibilities. The
agency must strike a balance between the two, as NMFS has done here.
Comment 67: Although the purpose and need statement erroneously
says that the proposed action ``could also promote conservation of the
halibut stock,'' NMFS's findings elsewhere in the Analysis foreclose
that possibility altogether.
Response: NMFS disagrees that its findings in the Analysis
foreclose the possibility of conservation of the halibut stock. This
action promotes conservation of the stock by reducing the Amendment 80
sector's halibut PSC limit in the Bering Sea under conditions of lower
halibut abundance, and that conclusion is supported in the proposed
rule and the Analysis. Although the IPHC is responsible for the
management of the coastwide halibut stock, NMFS implements regulations
that apply to the harvest of halibut including establishing halibut PSC
limits in NMFS-managed groundfish fisheries under the Magnuson-Stevens
Act in the BSAI FMP and Federal regulations. It is appropriate to use
the Magnuson-Stevens Act definition for ``conservation and
management,'' at section 1802(5) to consider whether the reduction of
PSC promotes conservation of a fishery resource, such as the halibut
stock. That definition does not define conservation separately and
notes that the term ``conservation and management'' refers to all of
the rules, regulations, conditions, methods, and other measures: (1)
which are required to rebuild, restore, or maintain, and which are
useful in rebuilding, restoring, or maintaining, any fishery resource
and
[[Page 82761]]
the marine environment; and (2) which are designed to assure that a
supply of food and other products may be taken and that recreational
benefits may be obtained, on a continuing basis, are irreversible or
long-term adverse effects on fishery resources and the marine
environment are avoided, and that there will be a multiplicity of
options available with respect to future uses of these resources. The
Magnuson-Stevens Act does not assume that conservation means keeping a
managed resource in an unfished state, since its conservation and
management requirements are focused, in simple terms, on maintaining
the resources for the benefit of the Nation through achieving optimum
yield, while preventing overfishing and minimizing bycatch.
Where the annual Amendment 80 sector halibut PSC limit is reduced
under conditions of lower halibut abundance, the overall halibut
bycatch is reduced. This bycatch reduction measure helps maintain the
fully-utilized halibut fishery resource and the marine environment and
is designed to ensure that, on a continuing basis, a supply of food and
other products may be taken and recreational benefits may be obtained.
Further, the reduction of Amendment 80 halibut PSC limit at lower
halibut abundance levels helps ensure that irreversible or long-term
adverse effects on the halibut fishery resources and the marine
environment are avoided and that there will be a multiplicity of
options available with respect to future uses of these resources. As
noted in the proposed rule, halibut PSC limits in the groundfish
fisheries overall provide a constraint on halibut PSC mortality and
promote conservation of the halibut resource.
Because the annual catch limit for the directed halibut fishery is
established by the IPHC, it is uncertain whether the result of this
action will benefit the long-term status of stock itself or directly
benefit the directed halibut fishery. That result will mostly depend on
actions of the IPHC. Due to historical IPHC practices, NMFS expects
that the IPHC may establish higher catch limits for the directed
halibut fleet to the degree that this action results in conserved
halibut. This expectation is merely a prediction of likely impacts of
this action, and the action does not depend on that result. To the
extent that this action results in an overall reduction in halibut
mortality in the BSAI management area, NMFS expects this to benefit the
halibut stock.
Comment 68: The Analysis does not consider a reasonable range of
alternatives. The Council and NMFS unreasonably and unlawfully rejected
reasonable alternatives, including those that would cause far less
harm. NMFS unlawfully failed to consider other reasonable alternatives,
such as (1) other mechanisms for reducing halibut bycatch and (2) other
fisheries and sectors that have significant halibut bycatch. The public
should have been given an opportunity to, at the very minimum, review
and consider at least one alternative that would have addressed halibut
bycatch in a broader array of sectors and fisheries.
Response: The Council and NMFS considered a wide range of
alternatives during the development of Amendment 123. NEPA does not
require an agency to explicitly consider every possible alternative to
a proposed action. Under NEPA, NMFS can eliminate alternatives to FMP
amendments prior to conducting a comprehensive review of such
alternatives, as long as rationale is provided for its decision.
In the Analysis, five alternatives and three options were analyzed
to meet the purpose and need, and many other alternatives were
considered but eliminated from further analysis through the extensive
period of development for Amendment 123 (see Section 2 of the
Analysis). These alternatives were developed over numerous years with
extensive input from the public through Council process. The Council
and NMFS at one time considered including other fishery sectors but
chose to focus on the Amendment 80 sector for this action. Section 1.3
of the Analysis explains the rationale for why this action is limited
to the Amendment 80 sector. In short, the Amendment 80 sector comprises
the majority of the annual halibut PSC mortality in the BSAI groundfish
fisheries.
Comment 69: The Analysis fails to address incomplete or unavailable
information under 40 CFR 1502.22. For example, the Analysis fails to
consider fishery data for 2020, 2021, and 2022, and when evaluating
environmental justice impacts, NMFS stated that no recent information
from secondary sources on sector-wide catcher/processor crew
demographics is readily available. The Analysis does not address the
incomplete or unavailable information giving rise to these recognized
uncertainties. NMFS acknowledges that other categories of information
are unavailable but fails to perform analysis for them as required.
Response: NMFS noted in the Analysis where there was incomplete,
unavailable, and uncertain information to inform the effects analysis.
NEPA requires that the EIS contain high-quality information and
accurate scientific analysis, and, if there is incomplete or
unavailable relevant data, the EIS discloses that fact.
The regulation cited by the commenter (40 CFR 1502.22) requires
that when an agency is evaluating reasonably foreseeable significant
adverse effects on the human environment in an EIS, and there is
incomplete or unavailable information, the agency must make clear that
such information is lacking. If the unavailable information is
essential to the analysis and can be obtained without unreasonable
effort or cost, the agency should obtain it; if such information is
essential and the agency cannot obtain it, the agency needs to state
the information is unavailable, whether its relevant, and give a
summary of the existing information and state the agency's evaluation
of the current information based upon approaches or research methods
generally accepted in the scientific community.
The Analysis meets all requirements of NEPA and its implementing
regulations. Throughout the analyses, NMFS clearly discloses where
information is lacking, unavailable, or incomplete. If such information
could not be obtained, NMFS explains the approach taken in the Analysis
using the information available to the agency. No extra analysis is
required.
Comment 70: The Analysis's cursory treatment of cumulative effects
is insufficient and unlawful by including only those involving halibut,
while ignoring other cumulative effects that may affect the Amendment
80 sector. The Analysis has not but should have considered additional
impacts to fishing communities and the Amendment 80 sector due to: (1)
an increasing likelihood that the Area 4 catch limits will not be fully
harvested; (2) increased challenges in maintaining halibut fishery
processing operations throughout Area 4 that have historically relied
on offsetting costs with crab processing; (3) changes in distribution
of Area 4 halibut deliveries; (4) additional crab bycatch management
measures; (5) potential establishment of National Marine Sanctuaries
near the Pribilof Islands; (6) climate change; (7) future IPHC actions;
and (8) other factors including inflation, tariffs, and the market and
supply disruptions due to the war in Ukraine.
Response: As explained in response to Comment 65, NEPA requires
agencies to consider and give a hard look at the cumulative impacts of
proposed actions. NMFS did so in Section 5.8 of the Analysis (see
ADDRESSES). Cumulative impacts are effects on the environment that
result from the incremental impact
[[Page 82762]]
of the action when added to other past, present, and reasonably
foreseeable future actions. Some of the actions cited by commenters
occurred so close in time to the Analysis (e.g., inflation and other
market disruptions), were still under consideration and development by
the Council and/or NMFS (e.g., crab bycatch measures), or occurred
after publication of the Analysis (e.g., potential establishment of a
National Marine Sanctuary and future IPHC actions) that they could not
reasonably be considered and were therefore not ``reasonably
foreseeable.'' As noted above, NMFS considered whether some of these
new circumstances warranted supplementing the EIS and concluded they do
not.
Other actions and accompanying analyses (such as directed halibut
fishery catch) commenters cite were incorporated by reference either
from other analyses or from other sections of the Analysis. In
particular, the IPHC's setting of directed fishery catch limits is
noted as a reasonably foreseeable future action in this analysis, but
in conjunction with other direct impacts of this action, is not
considered to be cumulatively significant.
Some of the actions commenters cite are so uncertain or in such
early stages of development that the impacts cannot be considered
``reasonably foreseeable'' and/or there is not enough information for a
meaningful analysis. For further discussion on Climate change,
considerations are addressed in the responses to Comments 26 and 64.
Comment 71: In violation of NEPA, NMFS failed to consider the
additional economic impact from increased cost recovery fee percentages
as a result of reduced harvest opportunity expected under this action.
Specifically, the Analysis acknowledged that the Amendment 80 sector is
subject to cost recovery fees as a portion of its ex-vessel revenue for
costs directly related to the management of the fishery. However,
because the proposed action would significantly reduce the amount of
harvests in the fishery and the expected value to the fishery,
Amendment 80 sector participants would expect to pay considerably
higher percentage of their ex-vessel revenue to meet their required
cost recovery payments. This is not analyzed in the Analysis, but
effects on cost recovery fees are recognized in the proposed rule.
Response: In Section 5.9.1 of the Analysis, NMFS discussed and
considered the Amendment 80 cost recovery fee program. NMFS implemented
the Amendment 80 cost recovery fee program on February 4, 2016 (81 FR
150, January 5, 2016). The Magnuson-Stevens Act section 304(d) limits
total cost recovery fees to three percent of the ex-vessel value for a
fishery, which is consistent with the maximum fee percentage as
implemented in regulations applicable to the Amendment 80 fee program
at Sec. 679.95 that remain unchanged by this action. Additionally,
Section 3.3.2 of the Analysis discusses cost recovery in several places
and provides fee information from fiscal year 2017 through fiscal year
2020.
Comment 72: NMFS violated NEPA and the Administrative Procedure Act
(APA) by arbitrarily modifying the following true statement that was
included in the draft Analysis to imply an opposite conclusion, without
any factual support or rational explanation:
Because of the efforts and expenditures already undertaken by
the sector, dramatic increases in halibut avoidance or reductions in
mortality are not expected with the tools that are currently
available to the fleet. Some marginal improvements are anticipated
to continue to be realized, especially if halibut limits are further
reduced and the fleet forgoes some profitability to reduce halibut
mortality further. Reductions in halibut mortality are expected to
result from the [Amendment 80] sector increasing costs or reducing
efficiency.
Response: The statements made in the draft Analysis and the
Analysis prepared for this action are not significantly different. NMFS
modified and clarified the language from the draft Analysis text
referenced by the commenter in the Analysis in response to public
comments. The Analysis adds that reductions in halibut mortality in the
Amendment 80 sector could also come from ``. . . improving the use of
existing tools.'' As required by NEPA, changes from the draft to final
Analysis are documented and can be located in Section 8.8 on page 392
of the Analysis. While a number of substantive changes are detailed,
Analysis Section 8.8 notes that edits were made throughout the document
for clarification, in response to public comments, or both, and not all
of them were expressly identified in Section 8.8. NMFS does not
consider the change to imply an opposite conclusion from the draft text
and does not therefore consider it a substantive change to the
document. The clarified text found in the Analysis Section 5.3.2.5
states the following:
Efforts already undertaken by the sector have shown that
increases in halibut avoidance or reductions in mortality are
possible with the tools that are currently available to the fleet.
Additional improvements are anticipated to continue to be realized,
especially if halibut limits are further reduced and the fleet
forgoes some amount of profitability to reduce halibut mortality
further. Reductions in halibut mortality that are realized are
expected to result from the sector increasing costs or reducing
efficiency. The amount of mortality reductions cannot be quantified
with any certainty. If substantial reductions in halibut mortality
are realized, they are likely to be derived from the development and
implementation of new technologies.
Directed Halibut Fishery
Comment 73: There is no FMP for the management of halibut.
Response: True, there is no FMP for halibut because the halibut
stock is managed by the IPHC under the Convention. The Council and NMFS
have the authority to develop and implement regulations under the
Halibut Act, including limited access regulations that are in addition
to, and not in conflict with, IPHC regulations. The Council and NMFS
manage groundfish fisheries under FMPs pursuant to the Magnuson-Stevens
Act. Section 1.1 of the Analysis discusses how the IPHC and NMFS manage
halibut.
Comment 74: There is no rational basis for NMFS's continuing
prohibition on the Amendment 80 sector's ability to retain and sell the
halibut it catches below the PSC limits.
Response: Removing halibut from the list of prohibited species or
changing the provisions regarding the prohibition on retention would
involve a departure from longstanding policy and is beyond the scope of
this action. Section 1.1 of the Analysis discusses how the IPHC and
NMFS manage halibut. This section discusses prohibition on the
retention of a category of species that are valuable to other users and
fully utilized by them, known as ``prohibited species.'' That category
includes salmon, herring, crab, and halibut. Through the FMP process
and regulation, NMFS and the Council have determined that the capture
of species in this category must be avoided, and they prohibit their
retention except when authorized by other law.
Comment 75: The halibut stock is considered to be stable and not
subject to overfishing or overfished by the IPHC, even though those
terms are not applicable to halibut because it is not managed under the
Magnuson-Stevens Act or an FMP. The halibut stock declined in the 1990s
to approximately 2012. After 2012, the stock's spawning biomass
stabilized around 100,000 mt and has remained stable since 2012.
Response: NMFS acknowledges this comment. The halibut spawning
stock biomass has remained stable since 2012 at a historically low
level.
Comment 76: The proposed action will not result in any identifiable
[[Page 82763]]
economic, social, or cultural benefits to the directed halibut fishery.
Response: The relationship between this action's PSC limit
reductions and benefits to the directed halibut fishery is complex and
depends on a number of factors, as discussed in Section 5.4 of the
Analysis. NMFS expects that there may be benefits to the directed
fishery resulting from reduced halibut PSC by the Amendment 80 sector.
NMFS considered benefits to other communities and users. Benefits from
conserved halibut are likely to be indirect instead of direct, due to
the limited scope of the action, and because the IPHC annually
establishes halibut catch limits applicable to each regulatory area.
Impacts to communities, including social and cultural impacts, as well
as impacts to Alaska Native and subsistence users, are considered in
Section 5.5.2.1.5 of the Analysis.
Comment 77: Halibut is not fully utilized in the BSAI. The fact
that utilization rates (percent harvested) in the Area 4 halibut
fishery are at a record low of 66 percent is not addressed or analyzed
by NMFS.
Response: The total allowable catch for halibut is completely
assigned to user groups; thus, it is considered fully utilized. Halibut
is targeted by commercial, recreational, charter, and subsistence
users. The IPHC allocates halibut to achieve Total Constant
Exploitation Yield or TCEY. Halibut is thus fully utilized even though
a portion of the commercial harvest allocation may not be fully
harvested every year. A portion of the distributed TCEY within Area 4
goes unharvested each year for a number of reasons. The exact amount of
unharvested quota varies from year to year, area to area, and depending
upon how data is aggregated. The IPHC compiles harvest figures annually
in the Fisheries Data Overview presented at the Annual Meeting at the
end of January. The following portion of the total catch limits were
harvested in 2022 by Area: 4CDE (Bering Sea) = 91 percent; 4B (Central
& Western Aleutians) = 49 percent; and 4A (Eastern Aleutians) = 80
percent.
The largest proportion of halibut that remained unharvested in Area
4 is in Area 4B, and there is a smaller amount of quota remaining
unharvested in Area 4A. These areas represent remote sections of the
Western Aleutian Islands. Fishing in Area 4B is usually inconsistent,
resulting in directed fishing vessels spending a higher amount on fuel
not only to find halibut but to reach the fishing grounds. Further,
there is very little to no infrastructure out in the Western Aleutian
Islands to support a directed halibut fishing fleet resulting in
vessels having to return to Dutch Harbor to sell fish and resupply.
Comment 78: Halibut is culturally, socially, and economically
important to Alaska residents, a value that cannot be captured
monetarily. The proposed action can help coastal communities and
fishermen secure other directed fishing opportunities and be more
diversified, a critical step as U.S. fisheries face growing climate
impacts and uncertainty. The small-boat halibut fishery is the cultural
and economic lifeblood of Saint Paul, Alaska. It is a critical source
of employment (both direct and indirect). It is also an important and
historically significant subsistence fishery that is key to Saint Paul
Island's cultural heritage and well-being. Saint Paul identifies with
this ancient resource: the halibut harvest--and sharing the bounty with
the community--is an irreplaceable cultural touchstone. An abundance-
based PSC limit more fairly distributes conservation limits so as not
to jeopardize coastal community participants in the directed halibut
fishery in the BSAI area.
Response: NMFS acknowledges this comment.
Comment 79: In 2015, the commercial IFQ and CDQ catch limits in
Area 4 were 3.815 million net pounds. In 2022, the commercial IFQ and
CDQ catch limits in Area 4 were 5.1 million net pounds. This improved
harvest opportunity is nearly four times greater than the harvest
opportunities envisioned under Amendment 111 even though the overall
abundance of halibut on a coastwide basis has not changed substantially
since 2015.
Response: This action is expected to minimize halibut mortality,
and it may result in additional harvest opportunities for subsistence
and recreational fishermen, and commercial halibut fishermen in Area 4.
This action does not modify allocations of halibut under the IFQ
Program or the CDQ Program. Since 2015, the amount of halibut harvested
in Area 4 has remained fairly constant; however, the IPHC survey
indices (i.e., the estimated all-sizes WPUE time series) for Area 4
have shown a downward trend. While it may be true that there is an
increase in the Area 4 halibut catch limits from 2015 to 2022, these
data points are the low and high points in the time series, and this
comparison fails to examine the yearly harvest across this time series,
which varies drastically. As with catch limits, there is also a lot of
variation within the amount of halibut harvested; however, 2022 saw the
lowest harvest from 2015 to 2022 in Area 4 with only 3.37 million net
pounds harvested, well below the average TCEY for this time period of
3.71 million net pounds.
Comment 80: Canadian halibut catch limits are too high. NMFS should
stop giving Canada too many fish.
Response: Halibut catch limits apportioned to Canada are determined
by the IPHC and are outside the scope of this action.
Comment 81: Amendment 123 will benefit halibut users in IPHC Area
2A because reducing bycatch of small halibut in the Bering Sea will
benefit the halibut stock and support migration into IPHC Area 2A.
Response: NMFS acknowledges support for this action. Expected
benefits to the halibut stock are addressed in response to Comment 67.
Regulatory Process
Comment 82: It is unclear which agency official has been delegated
authority to approve the Proposed Action. The proposed rule is signed
by Samuel Rauch (Deputy Assistant Administrator for Regulations, NMFS).
The NOA for proposed Amendment 123 is signed by Kelly Denit, Director,
Office of Sustainable Fisheries, NMFS. The comment extension deadline
for the NOA is signed by Jennifer M. Wallace, Acting Director, Office
of Sustainable Fisheries, NMFS. The Analysis ``Dear Reviewer Letter''
is signed by Jon Kurland, Regional Administrator.
Response: Two delegations of authority are relevant: (1) Department
of Commerce Directive (DOO 10-15) delegates the functions prescribed in
the Magnuson-Stevens Act from the Secretary of Commerce to the NOAA
Administrator, and (2) NOAA delegation 61 (NOAA's Organizational
Handbook) delegates to the Assistant Administrator for Fisheries
authority to perform functions relating to the Magnuson-Stevens Act.
Pursuant to that authority, the Assistant Administrator issues and
approves rulemaking actions, including the proposed and final rules.
The Assistant Administrator authorizes subordinates to carry out
certain ministerial tasks associated with the Assistant Administrator's
issuance of rulemakings. The commenter refers to several ancillary
procedural actions related to the rulemaking. These ancillary actions
should not be confused with issuance of the relevant rule.
Comment 83: The Council never formally deemed the proposed
regulations ``necessary'' or ``appropriate,'' as the Magnuson-Stevens
Act requires.
Response: It is well documented that the Council deemed the
proposed
[[Page 82764]]
regulations to be necessary and appropriate in accordance with section
303(c) of the Magnuson-Stevens Act. In the Council Motion C2 Halibut
Abundance-Based Management (ABM) from December 13, 2021, the Council
deemed proposed regulations that clearly and directly flow from the
provisions of the motion to be necessary and appropriate in accordance
with section 303(c) of Magnuson-Stevens Act. Similar language appears
in the December 2021 Council Meeting Summary Report.
Further, the Council authorized the Executive Director and the
Chairman of the Council to review a draft of the proposed regulations
to ensure that the proposed regulations were consistent with its
instructions. On October 25, 2022, the Executive Director sent a letter
to NMFS notifying it that he and Chairman Kinneen reviewed the draft
FMP amendment text, notice of availability, proposed rule, initial
regulatory flexibility analysis, and Analysis and concluded that they
were consistent with the Council's action.
Comment 84: In the proposed rule published December 9, 2022, NMFS
erroneously concluded that Amendment 123 and the proposed rule are
consistent with the Magnuson-Stevens Act (87 FR 75570). NMFS has
unlawfully predetermined the result of the proposed action and rubber-
stamped the Council's ill-advised proposal before completing review of
public comments.
Response: NMFS disagrees. The Council considered, assessed, and
heard from the public on a number of different alternatives before it
selected the preferred alternative. Further, in the Classification
section of the proposed rule (87 FR 75570 and 75582, December 9, 2022),
NMFS states that the NMFS Assistant Administrator has determined that
the proposed rule was consistent with Amendment 123, other provisions
of the Magnuson-Stevens Act, and other applicable laws and was subject
to further consideration after public comment period. It is NMFS's
common practice and consistent with applicable law to provide such a
preliminary conclusion when publishing the proposed rule (see Magnuson-
Stevens Act section 304(b)(1)). Because any such conclusion is subject
to further consideration after public comments are received and
considered by NMFS, NMFS did not predetermine the result of the
proposed action.
Comment 85: If NMFS proceeds with the proposed action, it should be
implemented no earlier than January 1, 2025.
Response: NMFS did not delay implementation of this action in
response to this comment. The Council recommended Amendment 123 on
December 13, 2021, with the clear expectation that NMFS implement it as
soon as possible. In routine reports to the Council during its
regularly scheduled meetings, NMFS provided status updates to the
Council and the public about the ongoing rulemaking process, and, after
approval of Amendment 123 by the Secretary of Commerce on March 7,
2023, the expected timing of its implementation. During those meetings,
NMFS informed the public that NMFS will implement Amendment 123 as soon
as possible.
Other Applicable Laws and Executive Orders
Comment 86: NMFS fails to rationalize the enormous costs of the
proposed action with the requirements of E.O. 12866 and E.O. 13563.
Response: The analysis of potential social and economic impacts is
covered extensively in Sections 5.3 through 5.6 of the Analysis. In
addition, a SIA is provided in Appendix 1 to the Analysis. These
sections provide a thorough analysis of those E.O.s and potential
socioeconomic impacts.
Comment 87: The proposed action is a ``significant regulatory
action'' under E. O. 12866 and, therefore, should have been reviewed by
the Office of Information and Regulatory Affairs (OIRA), thus NMFS
unlawfully failed to comply with E.O. 12866.
Response: As noted in the Classification section of this final
rule, OIRA has determined both the proposed and this final rule to be
not significant for purposes of E.O. 12866 via the process outlined in
the executive order itself and pursuant to all applicable laws and
guidance.
Comment 88: The proposed action fails to address the statutory
Capacity Reduction Program (CRP). The CRP was a key component in
defining the parameters and limitations of participation in the
Amendment 80 sector and is referred to extensively in the Amendment 80
implementing rulemaking (72 FR 52668, September 14, 2007). Section
219(g)(2) of the CRP makes clear that the Council should ``take actions
that promote the stability of [the non-pollock BSAI groundfish
fisheries] consistent with the goals of this section and the purposes
and policies of the Magnuson-Stevens Fishery Conservation and
Management Act.''
Response: NMFS agrees that the CRP defines parameters and
limitations of participation on the Amendment 80 sector. The CRP, as
part of a consolidated appropriations bill, made available capacity
reduction funds to certain sectors, defining those sectors/subsectors
(including Amendment 80) and eligibility criteria. To this end, NMFS
did not address the CRP, as this action has nothing to do with the CRP
funding, definitions, or eligibility criteria. Further, section
219(g)(2) of the CRP, which was enacted in the Consolidated
Appropriations Act of 2005 (Pub. L. 108-447; 118 Stat. 2890; Dec. 8,
2004) provides the Council should continue on its path toward
rationalization of the BSAI non-pollock groundfish fisheries, complete
its ongoing work with respect to developing management plans for the
BSAI non-pollock groundfish fisheries in a timely manner, and take
actions that promote stability of these fisheries consistent with the
goals of this section and the purposes and policies of the Magnuson-
Stevens Act. The Council and NMFS have completed those actions and any
claim to the contrary is well beyond the scope of this action.
Comment 89: The proposed action violates the Information Quality
Act (IQA) because NMFS is using third-party data (i.e., IPHC data) to
make decisions that have a large impact on the public without showing
how the use of this data complies with the IQA. For example, NMFS does
not describe how it will review IPHC survey results, how it will
determine the data is of ``known quality,'' how it will determine the
data's consistency with NOAA's information policy guidelines, or how
the limitations of the data will be taken into account and disclosed.
Response: NMFS disagrees. The IQA directed the Office of Management
and Budget (OMB) to issue guidance to Federal agencies for ensuring and
maximizing the quality, objectivity, utility, and integrity of
information disseminated by Federal agencies. Pursuant to OMB guidance,
NOAA issued guidelines specifically for NOAA information to ensure
quality of information, an important management objective for NOAA and
NMFS. The Agency's information quality guidelines are not intended to
prevent the use of reliable outside information or full utilization of
the best scientific information available. Use of third-party
information from either domestic or international sources, such as the
IPHC, is a common practice in NMFS. IPHC scientists are highly-trained,
independent specialists. Their work is reviewed at least twice a year
by the IPHC Scientific Review Board, as well as an external review
conducted every 3 years. All findings of peer reviews are openly
discussed in public meetings and published online. As specified in
[[Page 82765]]
regulations at Sec. 679.21(b)(1)(i)(B) governing the annual procedure
for establishing the halibut PSC limit for the Amendment 80 sector,
NMFS will annually receive and review the indices of halibut abundance
produced by the IPHC and publish the resulting PSC limit in the annual
harvest specifications.
Comment 90: The proposed action is facially arbitrary and
capricious, in violation of the APA. It nonsensically premises a
halibut bycatch reduction measure on a metric that has little or no
correlation to halibut bycatch, intends to improve results at low
abundance states but then regulates all abundance states including one
(very low) that has never been observed, fails to explain rejection of
proposed options to adjust the alternatives, and fails to sufficiently
analyze the action and its consequences.
Response: The Council and NMFS have conducted extensive analysis
and consideration in reaching the decision on this action, as recorded
in the Analysis and the many documents incorporated into it. Most
comments regarding assertions of APA violations are addressed in other
applicable response sections, e.g., Response to Comment 72. This action
is well-supported and reasonable for the circumstances addressed.
Notably, the action's purpose and need statement required selection
of a suitable means of determining halibut abundance. The best
available science resulted in selection of the two indices included in
this action. Since those indices are intended to measure abundance, not
bycatch, any lack of correlation with bycatch does not affect their
suitability. The goal of the action is to link the Amendment 80's PSC
limit to halibut abundance, which essentially means that the annual PSC
limit will vary according to indices of halibut abundance, similar to
the harvest levels of other, regulated users of halibut. The fact that
past bycatch levels poorly correlate to halibut abundance means there
may be greater costs to reduce bycatch when halibut abundance is low,
i.e., the mere fact that halibut abundance is lower may not directly
translate into lower bycatch levels without changes in fleet behavior
to avoid the bycatch, or there may be forgone harvest of groundfish
because the fleet failed to sufficiently avoid it and hit the lower PSC
limit. The costs and benefits of the action are discussed extensively
in Section 5 of the Analysis. The Analysis also extensively describes
the alternatives and options considered and the reason for selecting
this action.
Comment 91: For the same reasons that the proposed action violates
the Magnuson-Stevens Act, the proposed action violates the Halibut Act.
Response: The comment does not raise specific objections with
regard to the Halibut Act. Therefore, no specific response is possible;
NMFS maintains that this action is consistent with the Halibut Act and
the Magnuson-Stevens Act.
Changes From the Proposed Rule
This final rule includes the following change from the proposed to
final rule to address the timing for when the abundance indices will be
available relative to the annual harvest specification process.
At Sec. 679.21(b)(1)(i)(B), NMFS removed the word ``proposed''
from the last sentence of the paragraph referring to the annual harvest
specification for BSAI groundfish fisheries. NMFS will publish the
Amendment 80 sector halibut PSC limit from table 58 to part 679 in the
annual harvest specifications and it is not necessary to specify
``proposed.'' This change is necessary to make these new halibut PSC
limit regulations consistent with the existing PSC regulations at Sec.
679.21. Additionally, because the final rule specifies that the IPHC
submit the IPHC index to NMFS by December 1 of each year, and the
proposed annual BSAI groundfish harvest specifications are prepared
prior to December 1 each year, the IPHC index may not be available for
inclusion in the proposed harvest specifications each year. NMFS will
make the indices available to the public and the Council when they are
provided by the AFSC and IPHC. The public can apply the indices to
table 58 to part 679 to see the applicable PSC limit for the upcoming
year prior to the publication of the final harvest specifications.
Classification
Pursuant to sections 304(b)(3) and 305(d) of the Magnuson-Stevens
Act, the NMFS Assistant Administrator has determined that this final
rule is consistent with the Amendment 123 to the BSAI FMP, other
provisions of the Magnuson-Stevens Act, and other applicable law.
NMFS prepared a final EIS (FEIS) for Amendment 123 to the BSAI FMP.
The FEIS for this action was filed with the Environmental Protection
Agency on November 28 and a notice of availability was published on
December 9, 2022 (87 FR 75625). In approving Amendment 123 on March 7,
2023, NMFS issued a ROD identifying the selected alternative. A copy of
the ROD is available from NMFS (see ADDRESSES).
This final rule has been determined to be not significant for the
purposes of E.O. 12866.
Regulatory Impact Review (RIR)
An RIR was prepared to assess all costs and benefits of available
regulatory alternatives. A copy of this analysis is available from NMFS
(see ADDRESSES). NMFS implements Amendment 123 and the regulatory
revisions in this final rule based on those measures that maximize net
benefits to the Nation. Specific aspects of the economic analysis are
discussed below in the Final Regulatory Flexibility Analysis section.
Small Entity Compliance Guide
NMFS has posted a small entity compliance guide on the NMFS Alaska
Region website (<a href="https://alaskafisheries.noaa.gov/sustainablefisheries/bycatch/default.htm">https://alaskafisheries.noaa.gov/sustainablefisheries/bycatch/default.htm</a>) to satisfy the Small Business Regulatory
Enforcement Fairness Act of 1996, which requires a plain language guide
to assist small entities in complying with this rule.
Final Regulatory Flexibility Analysis (FRFA)
Section 604 of the Regulatory Flexibility Act (RFA, 5 U.S.C. 604)
requires that, when an agency promulgates a final rule under section
553 of title 5 of the U.S. Code, after being required by that section
or any other law to publish a general notice of proposed rulemaking,
the agency shall prepare a FRFA. The following constitutes the FRFA
prepared for the regulations implementing Amendment 123. This FRFA
incorporates the initial regulatory flexibility analysis (IRFA), a
summary of the significant issues raised by the public comments in
response to the IRFA, NMFS's responses to those comments, and a summary
of the analyses completed to support this action.
Section 604 of the RFA describes the required contents of a FRFA:
(1) a statement of the need for, and objectives of, the rule; (2) a
statement of the significant issues raised by the public comments in
response to the initial regulatory flexibility analysis, a statement of
the assessment of the agency of such issues, and a statement of any
changes made in the proposed rule as a result of such comments; (3) the
response of the agency to any comments filed by the Chief Counsel for
Advocacy of the Small Business Administration (SBA) in response to the
proposed rule, and a detailed statement of any change made to the
proposed rule in the final rule as a result of the comments; (4) a
description of and an estimate of the number of small entities
[[Page 82766]]
to which the rule will apply or an explanation of why no such estimate
is available; (5) a description of the projected reporting,
recordkeeping, and other compliance requirements of the rule, including
an estimate of the classes of small entities which will be subject to
the requirement and the type of professional skills necessary for
preparation of the report or record; and (6) a description of the steps
the agency has taken to minimize the significant economic impact on
small entities consistent with the stated objectives of applicable
statutes, including a statement of the factual, policy, and legal
reasons for selecting the alternative adopted in the final rule and why
each one of the other significant alternatives to the rule considered
by the agency that affect the impact on small entities was rejected.
A description of this action, its purpose, and its legal basis is
included in the preamble to this final rule and is not repeated here.
Public and Chief Counsel for Advocacy Comments on the IRFA
An IRFA was prepared in the Classification section of the preamble
to the proposed rule (87 FR 75570, December 9, 2022). The Chief Counsel
for Advocacy of the SBA did not file any comments on the proposed rule.
NMFS has evaluated the two comments received from CDQ groups. Those
comments are discussed above in the Comments and Responses section of
this final rule.
Two CDQ groups provided comment letters and the substantive points
of those comments were incorporated with other similar comments and
responded to in this final rule. One CDQ group commented that they and
many others advocated more restrictive PSC limits to further reduce
halibut bycatch. They also noted the extraordinary challenge the
Council faced with determining what action to recommend and that the
process was informed by extensive and often divergent written comment
and testimony. The central theme of their comment letter was that they
strongly urge NMFS to move forward with Amendment 123 and this final
rule, as crafted by the Council, without substantive alterations from
NMFS.
The second CDQ group comment stressed support for liming halibut
bycatch and highlighted their efforts to do so. However, the c
[…truncated; see source link]Indexed from Federal Register on November 24, 2023.
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