Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Halibut Abundance-Based Management of Amendment 80 Prohibited Species Catch Limit, 75570-75585 [2022-26337]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 87, Number 236 (Friday, December 9, 2022)]
[Proposed Rules]
[Pages 75570-75585]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26337]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 221128-0250]
RIN 0648-BL42


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

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

ACTION: Proposed rule; request for comments.

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

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

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

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

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

SUPPLEMENTARY INFORMATION:

[[Page 75571]]

Table of Contents

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

I. Authority for Action

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

II. Background

    In December 2021, the Council voted to recommend Amendment 123 to 
link the halibut PSC limit to halibut abundance for the Amendment 80 
(i.e., non-pollock) commercial groundfish trawl fleet in the BSAI 
groundfish fisheries. In recommending Amendment 123, the Council 
intended to minimize halibut PSC to the extent practicable as required 
by section 303(a)(11) and National Standard 9 of the Magnuson-Stevens 
Act and to continue achieving optimum yield in the BSAI groundfish 
fisheries on a continuing basis under National Standard 1. The Council 
weighed and balanced the Magnuson-Stevens Act's legal requirements, 
including the ten national standards. Based on public comment, the 
analysis prepared pursuant to the National Environmental Policy Act 
(NEPA), and analyses under Executive orders and related laws that were 
included in the NEPA documentation, the Council selected to recommend 
Amendment 123 to NMFS.
    This action would provide incentives for the Amendment 80 fleet to 
minimize halibut mortality at all times. Achievement of these 
objectives would conserve the halibut resource by improving bycatch 
management and could result in additional harvest opportunities in the 
directed commercial and subsistence halibut fisheries. To implement 
Amendment 123, in this action, NMFS proposes regulations that would 
link the halibut PSC limit to halibut abundance for the Amendment 80 
commercial groundfish trawl fleet in the BSAI groundfish fisheries.
    Pacific halibut is fully utilized in Alaska as a target species in 
subsistence, personal use, recreational (sport), and commercial halibut 
fisheries. Halibut has significant social, cultural, and economic 
importance to fishery participants and fishing communities throughout 
the geographical range of the resource. Halibut is also incidentally 
taken as bycatch in commercial groundfish fisheries. The Magnuson-
Stevens Act defines bycatch as fish that are harvested in a fishery, 
but are not sold or kept for personal use, and includes economic and 
regulatory discards. 16 U.S.C. 1802(2). The term does not include fish 
released alive under a recreational catch and release fishery 
management program.
    The International Pacific Halibut Commission (IPHC) adopts 
regulations governing the target fishery for Pacific halibut under the 
Convention between the United States and Canada for the Preservation of 
the Halibut Fishery of the Northern Pacific Ocean and Bering Sea 
(Convention), signed at Ottawa, Ontario, on March 2, 1953, as amended 
by a Protocol Amending the Convention (signed at Washington, DC, on 
March 29, 1979). As provided by the Northern Pacific Halibut Act of 
1982 (Halibut Act) (16 U.S.C. 773-773k), the Secretary of State, with 
the concurrence of the Secretary of Commerce, may accept or reject, on 
behalf of the United States, regulations recommended by the IPHC in 
accordance with the Convention. The Halibut Act provides the Secretary 
of Commerce with the authority and general responsibility to carry out 
the requirements of the Convention and the Halibut Act. After 
acceptance by the Secretary of State and concurrence by the Secretary 
of Commerce, NMFS publishes the IPHC regulations in the Federal 
Register as annual management measures pursuant to 50 CFR 300.62.
    Section 773c(c) of the Halibut Act also provides the Council with 
authority to develop regulations that are in addition to, and not in 
conflict with, approved IPHC regulations. The Council has exercised 
this authority in the development of Federal regulations for the 
halibut fishery such as (1) subsistence halibut fishery management 
measures, codified at 50 CFR 300.65; (2) the limited access program for 
charter vessels in the guided recreational fishery, codified at 50 CFR 
300.67; and (3) the Individual Fishing Quota (IFQ) Program for 
commercial halibut fisheries, codified at 50 CFR 679.40 through 679.45.
    In recent years, catch limits for the commercial halibut fishery in 
the BSAI have generally declined in response to decreasing halibut 
spawning biomass (though the catch limits increased slightly in 2021), 
while limits on the maximum amount of halibut bycatch allowed in the 
groundfish fisheries have remained the same since 2016, when they were 
reduced under BSAI FMP

[[Page 75572]]

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

A. The Halibut Resource

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

[[Page 75573]]

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

B. Halibut Fisheries in the BSAI

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

[[Page 75574]]

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

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

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

D. Halibut PSC Management in the BSAI Groundfish Fisheries

    The Magnuson-Stevens Act authorizes the Council and NMFS to manage 
groundfish fisheries in the Alaska EEZ that take halibut as PSC, or 
bycatch. Every FMP must minimize bycatch to the extent practicable, 16 
U.S.C. 1853(a)(11), and be consistent with the Act's ten national 
standards, 16 U.S.C. 1851(a)(1)-(10). The groundfish fisheries cannot 
be prosecuted without some level of halibut bycatch because groundfish 
and halibut occur in the same areas at the same times and no fishing 
gear or technique has been developed that can harvest commercial 
quantities of groundfish while avoiding all halibut bycatch. The 
Council has designated Pacific halibut and several other species 
(herring, salmon and steelhead, king crab, and Tanner crab) as 
``prohibited species'' (section 3.6.1 of the FMP). Regulations 
implement the Act's requirements and require that the operator of any 
vessel fishing for groundfish in the BSAI minimize the catch of 
prohibited species (50 CFR 679.21(a)(2)(i)).
    Halibut incidental catch rates are based on NMFS-certified 
fisheries observers' estimates of halibut incidental catch in the 
groundfish fishery. Discard mortality rates (DMR) are estimates of the 
proportion of incidentally caught halibut that do not survive after 
being returned to the sea. The cumulative halibut mortality that 
accrues to a particular halibut PSC limit is the product of a DMR 
multiplied by the estimated halibut PSC. DMRs are estimated using the 
best scientific information available in conjunction with the annual 
BSAI stock assessment process. The DMR methodology and findings are 
included as an appendix to the annual BSAI groundfish SAFE report 
beginning in 2022.
    Although halibut PSC results from all types of gear (trawl, hook-
and-line, pot, and jig gear), halibut PSC primarily occurs in the trawl 
and hook-and-line groundfish fisheries. NMFS minimizes halibut bycatch 
to the extent practicable in the BSAI by (1) establishing halibut PSC 
limits for trawl and non-trawl fisheries; (2) apportioning those 
halibut PSC limits to groundfish sectors, fishery categories, and 
seasons; and (3) managing groundfish fisheries to prevent PSC from 
exceeding the established limits. The following sections provide 
additional information on the process NMFS uses to establish, 
apportion, and manage halibut PSC limits in the BSAI.
    Halibut PSC limits in the groundfish fisheries provide a constraint 
on halibut PSC mortality and promote conservation of the halibut 
resource. With one limited exception for Atka mackerel at 50 CFR 
679.21(b)(4)(i)(A), groundfish fishing is prohibited once a halibut PSC 
limit has been reached for a particular sector or season. Therefore, 
halibut PSC limits are set to balance conservation of the halibut 
resource with the needs of fishermen, fishing communities, and U.S. 
consumers who depend on both halibut and groundfish resources.
1. Annual Halibut PSC Limits and the Amendment 80 Sector
    The Council and NMFS have taken a number of management actions to 
minimize halibut bycatch to the extent practicable in the BSAI 
groundfish fisheries. Most recently, the Council adopted, and NMFS 
approved, Amendment 111 to the FMP for Groundfish of the BSAI 
management area in 2016 (81 FR 24714, April 27, 2016). That amendment 
established the current halibut PSC limits for BSAI groundfish 
fisheries, which were considered to be an effective means to minimize 
bycatch to the extent practicable at that time. The current total 
annual halibut PSC limit for BSAI groundfish fisheries is 3,515 mt. 
From that total, 1,745 mt are apportioned to the Amendment 80 sector, 
which is comprised of non-pollock trawl vessels (see the next sections 
for more detail on the Amendment 80 sector). The BSAI trawl limited 
access sector, which is comprised of all other trawl catcher/processor 
and trawl catcher vessels, is apportioned 745 mt. The BSAI non-

[[Page 75575]]

trawl sector, which includes primarily hook-and-line catcher/
processors, is apportioned 710 mt. The remaining 315 mt are apportioned 
to the CDQ program, which is comprised of vessels fishing for CDQ 
groups.
    Of those four BSAI groundfish fishery sectors, the Amendment 80 
sector receives the largest proportion of halibut PSC limits in the 
BSAI (roughly 50 percent). Therefore, the Council recommended, and NMFS 
agrees, that this proposed action should focus on the halibut PSC limit 
for the Amendment 80 sector. Several reasons drove this decision, as 
discussed below.
    When it took final action on Amendment 111 in December 2015 to 
reduce the PSC limits for all fishing sectors in the BSAI, the Council 
considered the methods available to the fisheries and the 
practicability of reducing halibut bycatch and mortality at that time. 
The preamble to the proposed rule to implement Amendment 111 noted that 
the Council and NMFS believed that more stringent PSC limit reductions 
than those proposed were not practicable for the groundfish sectors at 
that time. However, at the same meeting, the Council noted that 
additional halibut bycatch reduction would be needed in the future and 
initiated analysis of means to link halibut PSC limits to halibut 
abundance, thereby indicating that additional efforts would be required 
beyond those established by Amendment 111 and utilized by the fisheries 
to reduce halibut bycatch and mortality. From 2015 (when the Council 
requested the Amendment 80 sector to proactively reduce halibut 
mortality ahead of Amendment 111's regulatory PSC limit reductions 
expected to be implemented in 2016) through 2020, the Amendment 80 
sector reduced its halibut mortality to levels well below the PSC limit 
of 1,745 mt established under Amendment 111. Those reductions resulted 
in halibut mortality levels close to or below the PSC limit that would 
be implemented by this proposed rule based on halibut abundance 
estimates derived from current survey indices described below (see 
section 3.4.1 of the Analysis).
    Notably, the ratio of estimated halibut PSC mortality (halibut 
bycatch with the DMR applied) to actual halibut bycatch (described in 
section 3.4.4 of the analysis as effective mortality) declined from 
2015 through 2019. A slight uptick in effective mortality in 2020 was 
an artifact of greatly reduced halibut bycatch; that is, the reduced 
bycatch resulted in a slight increase in the ratio of mortality to 
bycatch. While many variables may have contributed to that relative 
decline, section 3.4.1 of the Analysis provides a compelling 
correlation between effective mortality and halibut deck sorting 
effort, which allows halibut to be returned to the sea more quickly 
thereby reducing mortality. Deck sorting efforts were increasingly 
employed by the Amendment 80 sector beginning in 2015. Thus, the 
Council and NMFS's concerns in 2015 over a potential lack of effective 
tools to reduce mortality and the practicability of meeting more 
stringent PSC limit reductions at that time have significantly been 
alleviated, at least with respect to the Amendment 80 sector, as 
evidenced by successful halibut mortality reductions. This proposed 
rule and BSAI FMP Amendment 123 represent the continuation of the 
Council's and NMFS's intent, as envisaged at the time of adoption of 
Amendment 111, to further reduce halibut bycatch and mortality and link 
halibut PSC limits to halibut abundance.
    At its February 2020 meeting, the Council elected to focus its next 
step in halibut bycatch reduction on the Amendment 80 fleet. The 
Council's rationale was based on several factors: (1) the Amendment 80 
fleet halibut bycatch and mortality comprised the largest proportion of 
the BSAI halibut PSC; (2) halibut bycatch in some other sectors had 
been or was being addressed under separate actions, e.g., the trawl 
limited access (TLAS) halibut PSC, the second largest portion of 
halibut PSC, is mainly taken in the directed Pacific cod and yellowfin 
sole fisheries, and halibut bycatch in the BSAI TLAS yellowfin sole 
fishery was addressed under BSAI FMP Amendment 116 (83 FR 49994, 
October 4, 2018), and the Council has recommended to NMFS a Pacific Cod 
Trawl Cooperative Program (PCTC) which will address halibut bycatch in 
the directed Pacific cod fishery; (3) other sectors were removed from 
this action (e.g. freezer longline, catcher vessel hook-and-line, CDQ) 
because they are apportioned a relatively small proportion of the 
annual halibut PSC limit compared to the first two sectors; and (4) a 
step-wise approach by sector allowed for a simplified and more 
efficient approach. Because this proposed action directly impacts only 
the Amendment 80 sector's halibut PSC, no further discussion of the 
other sectors is provided in this preamble. That said, the Council has 
indicated that it may consider additional action to reduce other 
sectors' halibut PSC in addition to the past and present actions noted 
above.
    Fishing under the Amendment 80 Program began in 2008 (72 FR 52668, 
September 14, 2007). The Amendment 80 sector comprises trawl vessels in 
the BSAI active in groundfish fisheries other than Bering Sea pollock. 
The Amendment 80 species are identified in regulation (50 CFR 679.2) as 
the following six species: BSAI Atka mackerel, Aleutian Islands Pacific 
ocean perch, BSAI flathead sole, BSAI Pacific cod, BSAI rock sole, and 
BSAI yellowfin sole. The Amendment 80 Program allocates a portion of 
the TACs of these species between the Amendment 80 fleet and other 
fishery participants. The Amendment 80 Program also allocates crab and 
halibut PSC limits to constrain bycatch of these species while 
Amendment 80 vessels harvest groundfish.
    At its inception, the Amendment 80 Program allocated QS for the six 
specified species based on the historical catch of these species by 
Amendment 80 vessels. The Amendment 80 Program allows and facilitates 
the formation of Amendment 80 cooperatives among QS holders who receive 
an exclusive harvest privilege. This exclusive harvest privilege allows 
Amendment 80 cooperative participants to collaboratively manage their 
fishing operations and more efficiently harvest groundfish allocations 
and PSC limits.
    The Amendment 80 sector includes vessels that focus primarily on 
flatfish (i.e., flathead sole, rock sole, and yellowfin sole) and 
vessels that focus on Atka mackerel. In 2020, 22 fishing permits were 
issued to vessels in the Amendment 80 sector. Overall, 56 percent of 
the Amendment 80 sector's QS units were for flatfish (i.e., flathead 
sole, rock sole, and yellowfin sole), 29 percent were for Aleutian 
Island Pacific ocean perch or Atka mackerel, and 15 percent were for 
Pacific cod. Section 3.3 of the Analysis provides more detailed 
information on Amendment 80 sector participants, harvests, and revenues 
in the BSAI groundfish fisheries.
    Annually, each Amendment 80 QS holder elects to participate in 
either a cooperative or the Amendment 80 limited access fishery. 
Participants in the Amendment 80 limited access fishery do not receive 
an exclusive harvest privilege for a portion of the TACs allocated to 
the Amendment 80 Program. Since 2011, the Amendment 80 sector has been 
prosecuted exclusively by vessels operating as part of a cooperative, 
and all QS holders have participated in one of two cooperatives. From 
2011 to 2017 there were two cooperatives; since 2017, all active 
Amendment 80 vessels are part of a single cooperative, the Alaska 
Seafood Cooperative (AKSC).

[[Page 75576]]

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

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

    Amendment 123 and the proposed rule reflect requirements that NMFS 
balance several factors when establishing PSC limits. The Council and 
NMFS considered the detailed information provided in the Analysis, 
including the impacts from several action alternatives with different 
halibut PSC limits, on (1) the halibut stock, (2) directed halibut 
fishery participants and communities that are engaged in directed 
halibut fisheries in the BSAI and in other Areas, and (3) BSAI 
groundfish fishery participants, like the Amendment 80 sector, and 
communities that are engaged in the BSAI groundfish fisheries. In 
developing the proposed action, the Council and NMFS aimed to 
appropriately balance the Magnuson-Stevens Act's requirements and 
national standards, particularly the requirements to establish 
conservation and management measures that minimize bycatch to the 
extent practicable, achieve optimum yield on a continuing basis, and 
take into account the importance of fishery resources to fishing 
communities. Section 5.3.2.3.1 of the Analysis provides additional 
detail on the balancing of the national standards. The Council 
believes, and NMFS agrees, that the proposed PSC limit reductions are 
consistent with the national standards and other Magnuson-Stevens Act 
requirements.
    Halibut is fully utilized in the BSAI. Therefore, consistent with 
the Council's purpose and need statement for this

[[Page 75577]]

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

A. Methods for Analysis of Impacts

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

[[Page 75578]]

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

B. Impacts on the Halibut Stock

    The Council and NMFS considered the impacts the proposed rule would 
have on the halibut stock as detailed in the Analysis. While reducing 
halibut bycatch mortality is a conservation measure, the Analysis 
concluded that, under all the alternatives considered, the impact on 
exploitable, coastwide halibut biomass and the halibut female spawning 
biomass was not likely to be significant. This is because the halibut 
resource in the BSAI is fully utilized, and the Council and NMFS assume 
that, under this proposed action, a dynamic balance between halibut 
allocated to directed halibut fisheries by the IPHC on one hand and PSC 
limits assigned to the Amendment 80 fleet (plus fixed halibut PSC 
limits for other sectors) on the other, would always result in full 
utilization, but not over-utilization of the halibut resource. 
According to the Analysis section 5.2, the IPHC's SPR-based management 
approach is expected to conserve spawning biomass across differing 
patterns in fishery selectivity and/or allocation among different 
fisheries. As such, there is likely to be little difference among the 
average future halibut spawning biomass under levels of PSC anticipated 
across all of the alternatives considered, including the proposed 
action.
    At the Very Low/Low and Very Low/High index states, the proposed 
action would reduce the Amendment 80 halibut PSC limit by 35 percent 
from the current limit. Should the IPHC setline survey results fall 
into the very low abundance state, the Council and NMFS concluded that 
this halibut PSC limit reduction would be important to promote 
conservation and equitable use of the halibut stock and consistency 
with the abundance-based process for establishing directed halibut 
fishery catch limits.

C. Impacts on Directed Halibut Fishery Participants and Fishing 
Communities

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

D. Impacts on Amendment 80 Participants and Fishing Communities

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

[[Page 75579]]

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

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

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

[[Page 75580]]

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

[[Page 75581]]

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

IV. The Proposed Rule

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

[[Page 75582]]

this proposed rule would revise 50 CFR 679.21.
    The proposed rule would revise paragraph (b)(1) by adding 
paragraphs (b)(1)(i)(A) through (C) to establish the process for 
determining the annual BSAI halibut PSC limits for the Amendment 80 
sector, including Amendment 80 cooperatives and the Amendment 80 
limited access fishery. The proposed rule would specify that halibut 
biomass estimates derived from results of the most recent IPHC setline 
and the AFSC EBS shelf trawl surveys be applied to a specified table of 
index ranges for each survey (proposed Table 58). The value at the 
intercept of those survey indices within the table would be the BSAI 
halibut PSC limit for the Amendment 80 sector for the following year. 
The annual limit would be published in the draft and final harvest 
specifications each year.
    The proposed rule would also revise 50 CFR 679.91, which 
establishes Amendment 80 Program annual harvester privileges and the 
process for assigning halibut PSC to the Amendment 80 sector, 
cooperatives, and limited access fishery. The proposed rule would 
revise paragraphs (d)(1), (d)(2)(i), and (d)(3) to clarify that the 
amount of halibut PSC limit for the Amendment 80 sector for each 
calendar year is specified and determined according to the procedure in 
Sec.  679.21(b)(1)(i), replacing the references in those paragraphs to 
Table 35 to this part that stipulates the annual fixed amount of 1,745 
mt for the Amendment 80 sector as a whole.
    NMFS would modify Table 35 to Part 679 (Apportionment of Crab PSC 
and Halibut PSC Between the Amendment 80 and BSAI Trawl Limited Access 
Sectors) to indicate that the Amendment 80 sector halibut PSC would be 
determined annually, rather than set at a fixed amount. NMFS would add 
Table 58 to Part 679--Amendment 80 Sector Annual BSAI Pacific Halibut 
PSC Limits to establish the IPHC setline and the AFSC EBS shelf trawl 
survey index ranges in a table with the corresponding PSC limit at the 
intercepts of each survey range.

V. Classification

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

A. Regulatory Impact Review (RIR)

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

B. Initial Regulatory Flexibility Analysis (IRFA)

    This IRFA was prepared for this proposed rule, as required by 
section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 603), to 
describe the economic impact this proposed rule, if adopted, would have 
on small entities. The IRFA is required to describe why this action is 
being proposed; the objectives and legal basis for the proposed rule; 
the number of small entities to which the proposed rule would apply; 
any projected reporting, recordkeeping, or other compliance 
requirements of the proposed rule; any overlapping, duplicative, or 
conflicting Federal rules; and any significant alternatives to the 
proposed rule that would accomplish the stated objectives, consistent 
with applicable statutes, and that would minimize any significant 
adverse economic impacts of the proposed rule on small entities. 
Descriptions of this proposed rule, its purpose, and the legal basis 
are contained earlier in this preamble and are not repeated here.
1. Number and Description of Small Entities Regulated by This Proposed 
Rule
    NMFS has determined that vessels that are members of a fishing 
cooperative are affiliated when classifying them for the RFA analysis. 
In making this determination, NMFS considered the Small Business 
Administration (SBA) ``principles of affiliation'' at 13 CFR 121.103. 
Specifically, in 50 CFR 121.103(f), SBA refers to ``[a]ffiliation based 
on identity of interest,'' which states that affiliation may arise 
among two or more persons with an identity of interest. Individuals or 
firms that have identical or substantially identical business or 
economic interests (such as family members, individuals or firms with 
common investments, or firms that are economically dependent through 
contractual or other relationships) may be treated as one party with 
such interests aggregated. If business entities are affiliated, then 
the threshold for identifying small entities is applied to the group of 
affiliated entities rather than on an individual entity basis. NMFS has 
reviewed affiliation information for Amendment 80 cooperative members 
that are directly regulated by this action and has determined that all 
directly regulated catcher/processors are large via cooperative 
affiliation, with one exception discussed below.
    This action also affects the six Western Alaska CDQ entities that 
are non-profit corporations, are not dominant in the BSAI non-pollock 
fishery, and are specifically identified as ``small'' entities in the 
regulations implementing the RFA. The CDQ entities have made direct 
investments in fishing vessels by creating wholly owned for-profit 
fishing companies, several of which are directly regulated by this 
action. However, as for-profit ventures, these companies are not 
automatically defined as small entities due to CDQ ownership, and this 
analysis has determined that they are all Amendment 80 cooperative-
affiliated. Thus, while this proposed action directly regulates these 
for-profit CDQ owned companies, they are considered to be large 
entities for RFA purposes.
    The thresholds applied to determine if an entity or group of 
entities are ``small'' under the RFA depend on the industry 
classification for the entity or entities. Businesses classified as 
primarily engaged in commercial fishing are considered small entities 
if they have combined annual gross receipts not in excess of $11.0 
million for all affiliated operations worldwide. 50 CFR 200.2. 
Businesses classified as primarily engaged in fish processing are 
considered small entities if they employ 750 or fewer persons on a 
full-time, part-time, temporary, or other basis at all affiliated 
operations worldwide. Since at least 1993, NMFS Alaska Region has 
considered catcher/processors to be predominantly engaged in fish 
harvesting rather than fish processing. Under this classification, the 
threshold of $11.0 million in annual gross receipts is appropriate.
    One additional vessel, the Golden Fleece, has been identified as a 
potentially directly regulated small entity based on revenue analysis. 
The Golden Fleece is Amendment 80-eligible but has chosen not to 
utilize its right to an Amendment 80 permit. Thus,

[[Page 75583]]

it is not Amendment 80 cooperative-affiliated or Amendment 80 
ownership-affiliated, as it is an independent company. The Golden 
Fleece is a member of a marketing cooperative called Golden-Tech 
International, Inc. This cooperative markets the catch of several 
Amendment 80 catcher/processors; however, NMFS does not have access to 
information regarding contractual relationships necessary to determine 
whether membership in this marketing cooperative also affiliates the 
Golden Fleece with Amendment 80 vessels. Therefore, the Golden Fleece 
is considered to be the only small entity directly regulated by this 
action. However, since the Golden Fleece has not participated in the 
Amendment 80 fishery, it is not possible to quantify adverse impacts 
other than to acknowledge that the proposed rule may constrain its 
halibut PSC limits should it choose to do so in the future. In times of 
lower halibut abundance, that constraint may mean that there is not 
adequate PSC quota to allocate to the Amendment 80 limited access 
fishery to allow a directed fishery to be opened by NMFS in-season 
management should the Golden Fleece choose to register for that 
fishery. Were the Golden Fleece to register in the Amendment 80 fishery 
as a cooperative of one, their ability to fish would be similarly 
constrained by the potentially lower halibut PSC limit.
    In sum, based on the foregoing analysis, NMFS preliminarily 
determines that there is one catcher/processor entity, the Golden 
Fleece, that may be considered small and would potentially be directly 
regulated by this action. NMFS has carefully considered whether a 
single entity represents a ``substantial number'' of directly regulated 
entities. When Amendment 80 was enacted, there were 27 original 
issuances of License Limitation Permits (LLPs). That is the same number 
of Amendment 80 LLPs issued currently. The Golden Fleece does not hold 
one of the 27 original or current LLPs issued, having, having not 
applied for an Amendment 80 LLP to date. Through consolidation and 
vessel replacement, all of the LLPs participating in the Amendment 80 
fishery are presently owned by five distinct corporations that are all 
cooperative-affiliated large entities. NMFS acknowledges that the 
corporation owning the LLPs is the proper consideration for determining 
whether a substantial number of directly regulated entities is 
affected. While one of 28 does not appear to represent a substantial 
number of directly regulated entities, one of six directly regulated 
entities may give the appearance of a substantial number. Thus, NMFS 
has prepared this IRFA, which provides potentially affected small 
entities an opportunity to provide comments. NMFS will evaluate any 
comments received regarding the potential for significant economic 
impact on a substantial number of small entities in the final RFA 
contained within the final rule.
Recordkeeping, Reporting, and Other Compliance Requirements
    No small entity is subject to reporting requirements that are in 
addition to or different from the requirements that apply to all 
directly regulated entities.
    Under this proposed rule, requirements for recording and reporting 
would not be changed. Therefore, this proposed action will not change 
recordkeeping and reporting costs for fishery participants or impose 
any additional or new costs on participants.
2. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Action
    NMFS has not identified any duplication, overlap, or conflict 
between this proposed rule and existing Federal rules.
3. Description of Significant Alternatives That Minimize Adverse 
Impacts on Small Entities
    No significant alternatives were identified that would accomplish 
the stated objectives for implementing a halibut abundance-based 
management via regulation, be consistent with applicable statutes, 
would minimize costs to potentially affected small entities more than 
the proposed rule. The Council considered five alternatives for action 
in this proposed rule along with three sub-options that could apply to 
all action alternatives. Alternative 1 is the no action alternative and 
would continue the static annual halibut PSC limit of 1,745 mt for the 
Amendment 80 sector.
    The Council's recommended Preferred Alternative (Alternative 5) 
bases the determination of the annual PSC limit on the most recent 
survey values for the IPHC setline survey and the EBS shelf trawl 
survey using an index table that links PSC limits to survey abundance 
index states (see Table 2-8 of the Analysis). The two abundance indices 
are measures of the survey estimate of halibut either in metric tons 
(NMFS AFSC EBS shelf trawl survey) or population-density as measured by 
weight per unit effort (IPHC setline survey). These indices will be 
used to track halibut abundance and to guide setting the PSC limit for 
the Amendment 80 sector. The selected indices are based on the EBS 
shelf trawl survey and the IPHC setline survey covering IPHC Areas 
4ABCDE. Both indices represent the best available scientific 
information. Alternatives 2 through 4 would use the same style of index 
table as proposed in the Preferred Alternative but would use different 
ranges of halibut PSC limits for the survey index levels. Alternative 2 
includes a range from the current halibut PSC limit of 1,745 mt to 
1,396 mt or 20 percent below the current limit. Alternative 3 includes 
a range from 2,007 mt or 15 percent above the current limit to 1,222 mt 
or 30 percent below the current limit. Alternative 4 includes a range 
from the current limit of 1,745 mt to 960 mt or 45 percent below the 
current limit.
    The Preferred Alternative reflects requirements for the Council, 
and NMFS, to balance several factors when establishing PSC limits, 
including the likely impacts on the halibut stock and affected 
participants in the Amendment 80 and directed halibut fisheries. The 
Preferred Alternative would specify halibut PSC limits that range from 
the current Amendment 80 halibut PSC limit to 35 percent below the 
current limit. This is within the range of halibut PSC limits 
considered for this action, which range from 15 percent above the 
current limit to 45 percent below the current limit. The Council has 
acknowledged that halibut is fully utilized in the BSAI and at the 
medium to very low survey index states, the Amendment 80 PSC limit 
should decline as halibut available for harvest for all users also 
declines. Under those conditions, reduced halibut mortality through 
lower PSC limits is likely to prevent halibut PSC from becoming a 
larger proportion of total removals in the BSAI, consistent with the 
Council's purpose and need statement.
    In recommending the Preferred Alternative, the Council 
appropriately considered the Magnuson-Stevens Act requirements. The 
Preferred Alternative balances the interests of the two largest halibut 
user groups in the BSAI, the directed commercial halibut fishery and 
the Amendment 80 sector, by establishing abundance-based halibut PSC 
limits for the Amendment 80 sector. This abundance-based approach is 
similar to the IPHC's management approach for the directed halibut 
fisheries off Alaska, which establishes annual catch limits that vary 
with established measures of halibut abundance.

[[Page 75584]]

4. Collection of Information Requirements
    This proposed rule does not require any collection of information 
(``recordkeeping and reporting'') requirements approved by the Office 
of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). 
This proposed rule does not amend existing information collections or 
create new information collections applicable to directly regulated 
entities. The Amendment 80 sector is subject to a comprehensive 
information collection in the form of the Economic Data Reporting (EDR) 
Program enacted in 2008. The Council reviewed the EDR for Amendment 80, 
and three other sectors, in February of 2022 and kept the Amendment 80 
EDR largely intact while adopting some agency recommendations for small 
changes to the information collection forms to reduce respondent 
burden.
    Send comments on these or any other aspects of the collection of 
information to NMFS Alaska Region at the ADDRESSES above, by email to 
[email protected], or by fax to (202) 395-5806.
    Notwithstanding any other provision of law, no person is required 
to respond to, and no person shall be subject to penalty for failure to 
comply with, a collection of information subject to the requirements of 
the PRA, unless that collection of information displays a currently 
valid OMB control number. All currently approved NOAA collections of 
information may be viewed at https://www.cio.noaa.gov/services_programs/prasubs.html.

C. Tribal Consultation

    E.O. 13175 of November 6, 2000, the Executive Memorandum of April 
29, 1994, the American Indian and Alaska Native Policy of the U.S. 
Department of Commerce (March 30, 1995), and the Department of Commerce 
Tribal Consultation and Coordination policy (78 FR 33331, June 4, 2013) 
outline the responsibilities NMFS has for tribal consultations related 
to Federal policies that have tribal implications. Further, section 161 
of Public Law 108-199 extends the consultation requirements of E.O. 
13175 to Alaska Native corporations. Under E.O. 13175 and agency 
policies, NMFS is required to give the opportunity for meaningful and 
timely input by tribal officials and representatives of Alaska Native 
corporations in the development of regulatory policies that have tribal 
implications. To that end, NMFS will provide a copy of this proposed 
rule to all potentially impacted federally recognized tribal 
governments in Alaska and Alaska Native corporations to notify them of 
the opportunity to comment or request a consultation on this proposed 
action.
    Section 5(b)(2)(B) of E.O. 13175 requires NMFS to prepare a 
``tribal summary impact statement'' for any regulation that has tribal 
implications, imposes substantial direct compliance costs on Native 
tribal governments, and is not required by statute. The tribal summary 
impact statement must contain (1) a description of the extent of the 
agency's prior consultation with tribal officials, (2) a summary of the 
nature of their concerns, (3) the agency's position supporting the need 
to issue the regulation, and (4) a statement of the extent to which the 
concerns of tribal officials have been met. If the Secretary of 
Commerce approves this proposed action, a tribal impact summary 
statement that addresses the four questions above will be prepared and 
included in the final rule.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Halibut, Reporting and recordkeeping 
requirements.

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

    For reasons set out in the preamble, NMFS proposes to amend 50 CFR 
part 679 as follows:

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

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

    Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; 
Pub. L. 108-447; Pub. L. 111-281.
0
2. In Sec.  679.21, revise paragraph (b)(1) introductory text, and add 
paragraphs (b)(1)(i)(A) through (C) to read as follows:


Sec.  679.21  Prohibited species bycatch management.

* * * * *
    (b) * * *
    (1) Establishment of BSAI halibut PSC limits. Subject to the 
provisions in paragraphs (b)(1)(i) through (iv) of this section, the 
following three BSAI halibut PSC limits are established, which total 
1,770 mt: BSAI trawl limited access sector--745 mt; BSAI non-trawl 
sector--710 mt; and CDQ Program--315 mt (established as a PSQ reserve). 
An additional amount of BSAI halibut PSC limit for the Amendment 80 
sector will be determined for each calendar year according to the 
procedure in paragraph (b)(1)(i) of this section.
    (i) * * *
    (A) General. The Amendment 80 sector BSAI halibut PSC limit applies 
to Amendment 80 vessels while conducting any fishery in the BSAI and is 
an amount of halibut determined annually according to the procedure in 
paragraph (b)(1)(i)(B) of this section.
    (B) Annual procedure. By October 1 of each year, the Alaska 
Fisheries Science Center will provide the Regional Administrator an 
estimate of halibut biomass derived from the most recent Alaska 
Fisheries Science Center Eastern Bering Sea shelf trawl survey index. 
Each year, NMFS will request that the International Pacific Halibut 
Commission provide to the Regional Administrator, by December 1 of that 
year, an estimate of halibut biomass derived from the most recent 
International Pacific Halibut Commission setline survey index. NMFS 
will apply both halibut biomass estimates to Table 58 of this part, 
such that the value at the intercept of those survey indices in Table 
58 is the Amendment 80 sector halibut PSC limit for the following 
calendar year. NMFS will publish the new Amendment 80 sector halibut 
PSC limit in the proposed annual harvest specifications.
    (C) Allocation of BSAI halibut PSC to Amendment 80 cooperatives and 
the Amendment 80 limited access fishery. For Amendment 80 cooperatives 
and the Amendment 80 limited access fishery, BSAI halibut PSC limits 
will be allocated according to the procedures and formulas in Sec.  
679.91(d) and (f) (not paragraph (b)(1)(i)(B) of this section). If 
halibut PSC is assigned to the Amendment 80 limited access fishery, it 
will be apportioned into PSC allowances for trawl fishery categories 
according to the procedure in paragraphs (b)(1)(ii)(A)(2) and (3) of 
this section.
* * * * *
0
3. In Sec.  679.91, revise paragraphs (d)(1), (d)(2)(i), and (d)(3) to 
read as follows:


Sec.  679.91  Amendment 80 Program annual harvester privileges.

* * * * *
    (d) * * *
    (1) Amount of Amendment 80 halibut PSC for the Amendment 80 sector. 
The amount of halibut PSC limit for the Amendment 80 sector for each 
calendar year is determined according to the procedure in Sec.  
679.21(b)(1)(i). That halibut PSC limit is then assigned to Amendment 
80 cooperatives and the Amendment 80 limited access fishery

[[Page 75585]]

pursuant to paragraphs (d)(2) and (3) of this section. If one or more 
Amendment 80 vessels participate in the Amendment 80 limited access 
fishery, the halibut PSC limit assigned to the Amendment 80 
cooperatives will be reduced pursuant to paragraph (d)(3) of this 
section.
    (2) * * *
    (i) Multiply the amount of annual halibut PSC established according 
to the procedure in Sec.  679.21(b)(1)(i) by the percentage of the 
Amendment 80 halibut PSC apportioned to each Amendment 80 species as 
established in Table 36 to this part. This yields the halibut PSC 
apportionment for that Amendment 80 species.
* * * * *
    (3) Amount of Amendment 80 halibut PSC assigned to the Amendment 80 
limited access fishery. The amount of Amendment 80 halibut PSC limit 
assigned to the Amendment 80 limited access fishery is equal to the 
amount of halibut PSC assigned to the Amendment 80 sector, as 
established according to the procedure in Sec.  679.21(b)(1)(i), less 
the amount of Amendment 80 halibut PSC assigned as CQ to all Amendment 
80 cooperatives as determined in paragraph (d)(2)(iv) of this section, 
multiplied by 80 percent.
* * * * *
0
4. Revise Table 35 to part 679 to read as follows:

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

* * * * *
0
5. Add Table 58 to Part 679 to read as follows:

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

[FR Doc. 2022-26337 Filed 12-8-22; 8:45 am]
BILLING CODE 3510-22-P