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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-25513

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** November 24, 2023
- **Citation:** 88 FR 82740

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket Number: 231114-0267]
RIN 0648-BL42
Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Halibut Abundance-Based Management of Amendment 80 Prohibited Species Catch Limit

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

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

DATES:

This rule is effective January 1, 2024.

ADDRESSES:

Electronic copies of the Environmental Impact Statement (EIS) and the Social Impact Assessment (SIA) (collectively referred to as the “Analysis”) and the Record of Decision (ROD) prepared for this final rule may be obtained from
https://www.regulations.gov
or from the NMFS Alaska Region website at
https://www.fisheries.noaa.gov/region/alaska.

Electronic copies of Tribal consultation and listening summaries prepared for this action may be obtained from the NMFS Alaska Region website at:
https://www.fisheries.noaa.gov/alaska/consultations/alaska-fisheries-tribal-consultation-documents-and-workgroup.

Electronic copies of North Pacific Fishery Management Council (Council) documents referenced in this final rule are available on the Council website at
https://npfmc.org.

Electronic copies of International Pacific Halibut Commission (IPHC) documents referenced in this final rule are available on the IPHC website at
https://iphc.int.

FOR FURTHER INFORMATION CONTACT:

Gretchen Harrington, 907-586-7228.

SUPPLEMENTARY INFORMATION:

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

Background

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

Halibut PSC Management in the BSAI Groundfish Fisheries

Halibut is an iconic, highly valued fish among commercial, recreational, charter, and subsistence fishermen. For the commercial fisheries that do not directly target halibut, NMFS regulates their PSC or bycatch of halibut. Every FMP must minimize bycatch (16 U.S.C. 1853(a)(11)), to the extent practicable. The groundfish fisheries cannot be prosecuted without some level of halibut bycatch because of spatiotemporal overlap of groundfish and halibut. Regulations require the operator of any vessel fishing for groundfish in the BSAI to minimize the catch of prohibited species (§ 679.21(a)(2)(i)).

Although halibut PSC results from all types of gear (
i.e.,
trawl, hook-and-line, pot, and jig gear), halibut PSC primarily occurs in the trawl and hook-and-line groundfish fisheries. NMFS minimizes halibut bycatch to the extent practicable in the BSAI by: (1) establishing halibut PSC limits for trawl and non-trawl fisheries; (2) apportioning those halibut PSC limits to groundfish sectors, fishery categories, and seasons; and (3) managing groundfish fisheries to prevent PSC from exceeding the established limits. The following sections provide additional information on the process NMFS uses to establish, apportion, and manage halibut PSC limits in the BSAI.

Halibut PSC limits in the groundfish fisheries provide a constraint on halibut PSC mortality and promote conservation of the halibut resource. Groundfish fishing is prohibited once a halibut PSC limit has been reached for a particular sector or season.

The Council and NMFS have taken a number of management actions to minimize halibut bycatch to the extent practicable in the BSAI groundfish fisheries. Most recently, the Council adopted, and NMFS approved, Amendment 111 to the FMP in 2016 (81 FR 24714, April 27, 2016). That amendment established the current halibut PSC limits for BSAI groundfish fisheries, which were considered to be an effective means to minimize bycatch to the extent practicable at that time. The current total annual halibut PSC limit for BSAI groundfish fisheries is 3,515 metric tons (mt); from that total, 1,745 mt are apportioned to the Amendment 80 sector, which is composed of non-pollock trawl vessels.

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

The Amendment 80 Sector and Associated Fisheries

Fishing under the Amendment 80 Program began in 2008 (72 FR 52668, September 14, 2007). The Amendment 80 sector is comprised of trawl vessels, mostly owned by entities in the Seattle, Washington area, that participate in the BSAI groundfish fisheries other than the Bering Sea pollock fishery. The Amendment 80 species are identified in regulation (§ 679.2) as the following 6 species: BSAI Atka mackerel, Aleutian Islands Pacific ocean perch, BSAI flathead sole, BSAI Pacific cod, BSAI rock sole, and BSAI yellowfin sole. The Amendment 80 Program allocates a portion of the total allowable catch (TAC) limits of these species between the Amendment 80 sector and other fishery participants. The Amendment 80 Program also apportions crab and halibut PSC limits to constrain bycatch of these species while Amendment 80 vessels harvest groundfish.

At its inception, the Amendment 80 Program allocated quota share (QS) for the six specified species based on the historical catch of these species by Amendment 80 vessels. The Amendment 80 Program allows and facilitates the formation of Amendment 80 cooperatives among QS holders who receive an exclusive harvest privilege. This exclusive harvest privilege allows Amendment 80 cooperative participants to collaboratively manage their fishing operations and more efficiently harvest groundfish allocations while staying under PSC limits.

As specified in Section 3.7.5.2 of the FMP and at § 679.21, NMFS annually establishes a halibut PSC limit of 1,745 mt for the Amendment 80 sector. This halibut PSC limit is apportioned between the Amendment 80 cooperative(s) and the Amendment 80 limited access fishery according to the process specified at § 679.91. Amendment 80 cooperatives are responsible for coordinating members' fishing activities to ensure the halibut PSC limit apportioned to the cooperative is not exceeded. Federal regulations at § 679.91(h)(3)(xvi) prohibit each Amendment 80 cooperative from exceeding the halibut PSC limit specified on its annual Amendment 80 Cooperative Quota (CQ) permit.

Of the four BSAI groundfish fishery sectors, the Amendment 80 sector receives the largest proportion of halibut PSC limits in the BSAI (roughly 50 percent). Therefore, the Council recommended, and NMFS agrees, that Amendment 123 and this final rule should focus on the halibut PSC limit for the Amendment 80 sector. Several reasons drove this decision, as discussed below.

When the Council took final action on Amendment 111 in December 2015 to reduce the PSC limits for all fishing sectors in the BSAI, the Council considered the methods available to the fisheries and the practicability of reducing halibut bycatch and mortality at that time. The preamble to the proposed rule to implement Amendment 111 noted that the Council and NMFS believed that more stringent PSC limit reductions than those proposed as part of Amendment 111 were not practicable for the groundfish sectors at that time. However, at the same meeting, the Council noted that additional halibut bycatch reduction would be needed in the future and initiated an analysis of the means to link halibut PSC limits to halibut abundance, thereby indicating that additional efforts would be required beyond those established by Amendment 111, and utilized by the fisheries, to reduce halibut bycatch and mortality. From 2015 (when the Council requested the Amendment 80 sector to proactively reduce halibut mortality ahead of Amendment 111's regulatory PSC limit reductions expected to be implemented in 2016) through 2020, the Amendment 80 sector reduced its halibut mortality to levels well below the PSC limit of 1,745 mt established under Amendment 111. Those reductions resulted in halibut mortality levels close to or below the PSC limits that are implemented by this rule based on halibut abundance estimates derived from current survey indices described below (see Section 3.4.1 of the Analysis).

Amendment 123

The Council recommended Amendment 123 in December 2021 to link the halibut PSC limit for the Amendment 80 sector to halibut abundance. In recommending Amendment 123, the Council intended to minimize halibut PSC to the extent practicable as required by section 303(a)(11) and National Standard 9 of the Magnuson-Stevens Act and to continue achieving optimum yield in the BSAI groundfish fisheries on a continuing basis under National Standard 1. The Council then weighed and balanced the Magnuson-Stevens Act's legal requirements and considerations, including the ten National Standards. Based on public comment, the EIS prepared pursuant to the National Environmental Policy Act (NEPA), and analyses under E.O.s and related laws, the Council recommended Amendment 123 to NMFS.

This final rule implements Amendment 123 and requires the Amendment 80 sector to reduce halibut mortality at times of low halibut abundance. Achievement of these objectives will conserve the halibut resource by improving bycatch management and could result in additional harvest opportunities in the directed commercial, subsistence, and recreational halibut fisheries. The implementation of Amendment 123 and this final rule changes the annual process to determine the halibut PSC limit for the Amendment 80 sector to a PSC limit based on two indices of halibut abundance. An index of abundance is a relative measure of the abundance of the halibut population (or subpopulation—
e.g.,
size) calculated using an accepted scientific data collection method (
e.g.,
survey with standardized stations and bait) and calculation method for the indices.

This action specifies halibut PSC limits for the Amendment 80 sector based on fishery-independent indices of halibut abundance derived from scientific survey data. The two survey indices recommended by the Council and implemented in this final rule are the International Pacific Halibut Commission (IPHC) setline survey index in Area 4ABCDE and the NMFS Alaska Fisheries Science Center (AFSC) Eastern Bering Sea (EBS) shelf trawl survey index. Throughout this preamble, the IPHC setline survey index in Area 4ABCDE is referred to as the IPHC index, and the NMFS EBS shelf trawl survey index is referred to as the NMFS EBS index. The Council, its Scientific and Statistical Committee (SSC), and NMFS reviewed and recommended use of the IPHC index and the NMFS EBS index for this action, taking into account and noting limitations, assumptions, collection methods, and uncertainties in the Analysis. All information on the data and analysis is available to the public through meetings of the IPHC, the Council, or online (see
ADDRESSES
).

Each year, the IPHC will calculate an index of halibut biomass in Area 4ABCDE, which it will provide to NMFS. NMFS will categorize the resulting index into one of four

abundance index ranges: very low, low, medium, or high. Similarly, the AFSC will use the most recent results from the EBS shelf trawl survey to calculate an index of halibut biomass and NMFS will categorize the resulting index into one of two ranges: low or high. The value at the intercept of those separate indices in table 58 to part 679 will be the Amendment 80 sector's halibut PSC limit for the following calendar year. NMFS has requested that the IPHC and AFSC provide the most recent annual index of halibut abundance, including a summary of the methods, data, and analysis used to calculate the index, to the Regional Administrator by December 1 (for the IPHC index), and October 1 (for the NMFS EBS index) of each year. NMFS will provide this information to the Council and the public at the Council's regularly scheduled meetings.

The Council and NMFS also considered that there has been relative stability of the halibut abundance indices in recent years and concluded that if there were sampling changes, or that no sampling occurred in a given year, the abundance value produced by the IPHC model would still be robust and could be used for abundance-based management of halibut prohibited species catch limits. As indicated in Section 2.7 of the Analysis, the Council clarified that the most recent survey data available should be used to set annual PSC limits in the absence of one or more years of survey data.

NMFS EBS Index

Annually, NMFS uses data from the EBS shelf bottom trawl survey (EBS survey) to estimate halibut biomass (mt) in the EBS (NMFS EBS index). The NMFS EBS index is calculated from halibut catch at the EBS survey stations and accounts for the total survey area. The EBS survey is conducted during the summer (May through August), and the processed data are made available during the fall, at which time the NMFS EBS index can be calculated. Results of the EBS survey provide up-to-date estimates of biomass, abundance, distribution, and population structure of groundfish populations in support of stock assessment and ecosystem forecast models that form the basis for groundfish and crab harvest advice. The EBS survey has been conducted annually since 1982 (with one exception in 2020) and has included the current number of stations (376) since 1987. Results from this survey are used to calculate a relative abundance (catch per unit effort) and size and/or age composition for halibut and many groundfish and crab species. Data collected on the survey are also used to improve understanding of life history of the fish and invertebrate species, as well as the ecological and physical factors affecting their distribution and abundance. In absence of a survey, NMFS will use the halibut abundance index calculated from the most recent EBS survey.

IPHC Index

The IPHC has collected and analyzed data through a robust scientific process (
i.e.,
performed stock assessments) to determine the abundance of halibut coastwide from California to the Bering Sea. Each proposed survey undergoes scientific review and public inspection through a variety of channels.

The IPHC analyzes and combines data from the IPHC's Fishery-Independent Setline Survey (FISS), NMFS Eastern and Northern Bering Sea trawl survey, and Alaska Department of Fish and Game (ADF&G) Norton Sound trawl survey using a space-time model to create relative indices of halibut abundance and biomass in different units (
e.g.,
numbers or weight) for use in the annual halibut stock assessment. The EBS shelf survey has different size-selectivity than setline gear. To address this, the EBS shelf trawl survey is calibrated to the setline survey selectivity before it is incorporated into the calculation of the setline survey indices. Therefore, the setline survey does not index smaller halibut (mostly under 26 inches (66 cm) in fish length, called U26). Three important indices created annually include (1) a relative index of halibut abundance expressed as a number of fish that is used in the halibut stock assessment; (2) a relative index of halibut biomass for all sizes of fish expressed as weight per unit effort (WPUE) in in each IPHC Regulatory Area, including areas 4A, 4B, and 4CDE, which is also referred to as the IPHC index that is used in table 58 to part 679 for the purpose of annually establishing Amendment 80 halibut PSC limits; and (3) a relative index of halibut biomass in each IPHC Regulatory Area for fish over 32 inches (O32) in length overall that is used by the IPHC in the annual process to establish halibut mortality limits in each IPHC Regulatory Area.

The IPHC uses a scientific approach to survey data analysis in the space-time model that has been peer reviewed by the IPHC's Scientific Review Board (SRB). Similar space-time models are used to create the indices of abundance from NMFS Bering Sea trawl survey for the Pacific cod and Walleye pollock stock assessments. The IPHC index was selected by the Council as one dimension of table 58 to part 679.

The space-time modeling approach incorporates information from nearby observations in space and time to improve the prediction of WPUE at a particular sampling station. Such an approach allows the IPHC to annually generate an index of halibut abundance and estimate biomass (with associated variance estimates) even when FISS sampling coverage is not complete in all geographic areas. This means that for areas which are not sampled directly by the FISS in a given year, a statistically valid index of abundance is available, although the quantified uncertainty around the index would likely increase.

When assessing the robustness of the IPHC index during the development of Amendment 123, NMFS, the Council, and its SSC examined what would happen if there were changes in the surveys, including in a situation if no survey was to occur. They noted that the optimized use of the information from the sampled data reduces uncertainty and allows for the estimation of a consistent time-series over all years, even for areas that were not sampled in a particular year, with appropriate estimated uncertainty. Those estimates are the best scientific information available.

The survey coverage has varied over time and has been adjusted for both scientific reasons (
e.g.,
to enhance accuracy and precision) as well as to adjust for cost and logistical reasons. Annually, the FISS survey design represents a subset of the full survey design of 1890 stations coastwide. Station allocation among IPHC Areas, station density within Areas, and sampling effort (number of skates) per station in a given year are adjusted to meet the stated objectives to: (1) sample halibut for stock assessment and stock distribution estimation, (2) achieve long-term revenue neutrality, and (3) minimize removals, and assist others where feasible on a cost-recovery basis. The IPHC relies on its SRB to provide independent scientific peer review of the IPHC science process, including the annual FISS design development and refinement. The annual FISS design is routinely reviewed by the Commission and the public during the IPHC annual process.

Regulatory Changes Implemented by This Action

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

• The halibut PSC limit for the Amendment 80 sector is determined annually;

• Halibut biomass estimates derived from the most recent IPHC index and the NMFS EBS index are applied to a specified set of ranges for each index to establish the halibut PSC limit for the Amendment 80 sector for the following year;

• The halibut PSC limits range from 1,745 mt when abundance is characterized as “high” for the IPHC index, down to 1,134 mt (35 percent reduction) when abundance is characterized as “very low” for the IPHC index; and

• Each year the Amendment 80 sector halibut PSC limit is included in the annual harvest specifications for the BSAI.

This rule revises § 679.21(b)(1), which establishes halibut PSC limits for the Amendment 80 sector. This rule adds § 679.21(b)(1)(i)(A) through (C) to establish the process for determining the annual halibut PSC limits for the Amendment 80 sector, including Amendment 80 cooperatives and the Amendment 80 limited access fishery. This rule specifies that halibut indices derived from the most recent IPHC index and the NMFS EBS index be applied to a specified table of index ranges (table 58 to part 679). The value at the intercept of those indices within the table will be the halibut PSC limit for the Amendment 80 sector for the following year.

This rule also revises § 679.91, which establishes Amendment 80 Program annual harvester privileges and the process for assigning halibut PSC limits to the Amendment 80 sector, cooperatives, and limited access fishery. This rule revises § 679.91(d)(1), (d)(2)(i), and (d)(3) to clarify that the amount of halibut PSC limit for the Amendment 80 sector for each calendar year is specified and determined according to the procedure in § 679.21(b)(1)(i) by replacing the references to table 35 to part 679 in those paragraphs to this part that stipulates the annual fixed amount of 1,745 mt for the Amendment 80 sector as a whole.

This rule revises table 35 to part 679 (Apportionment of Crab PSC and Halibut PSC between the Amendment 80 and BSAI Trawl Limited Access Sectors) to indicate that the Amendment 80 sector halibut PSC limit will be determined annually, rather than set at a fixed amount.

This rule adds table 58 to part 679 (Amendment 80 Sector Annual BSAI Pacific Halibut PSC Limits) to establish the IPHC index and the NMFS EBS index ranges in a table with the corresponding PSC limit at the intercepts of each index range.

Comments and Responses

NMFS received 69 comment letters on the Amendment 123 Notice of Availability and proposed rule. NMFS responds to 91 substantive comments below.

NMFS received comment letters from 12 individuals, 3 fishermen, 1 guide service, 2 CDQ groups, 36 industry support businesses, 4 Amendment 80 companies, 7 industry associations, 2 non-governmental organizations (NGO), and 1 anonymous submission. Of the seven industry associations, one represents the Amendment 80 sector, one represents Bering Sea crabbers, three represent halibut and sablefish fishermen, one represents fishermen in the Homer, Alaska area, and one represents Prince William Sound and Central Gulf of Alaska fishermen. Of the 69 comment letters, 43 were opposed to the action and 26 were in support. Commenters who opposed the action were from the Amendment 80 sector, their industry association, members of the business community who provide support services to the Amendment 80 sector, and one CDQ group. Comment letters that voiced support for the action came from individuals, fishermen in halibut fisheries, an industry association representing crabbers, those who represent a wide range of fishermen in the Cordova area, a charter company, two NGOs, and the anonymous submission.

In responding to these comments, when NMFS refers to Amendment 123, unless otherwise noted, NMFS is referring to Amendment 123 and this final rule implementing Amendment 123. There were no public comments asserting that the proposed rule is not consistent with Amendment 123. Numerous comments address information included in the draft Analysis prepared for this action. Throughout the responses below, when NMFS refers to the “Analysis,” NMFS is referencing the EIS including the SIA prepared for this action. NMFS refers to the Draft Environmental Impact Statement as the “draft Analysis.”

Halibut Abundance Indices

Comment 1:
The current fixed halibut PSC limit fails to respond to varying abundances of halibut. The Council recommended Amendment 123 to the Secretary of Commerce as a responsive process to establish annual halibut PSC limits for the Amendment 80 sector based on halibut abundance. A PSC limit that responds to halibut abundance will allow halibut PSC limits to rise and fall based on abundance indices calculated with inputs from the IPHC fishery-independent setline survey and the annual NMFS trawl surveys in the BSAI area. We support NMFS implementing this action to reduce waste of the important halibut and bring the years-long process of crafting an equitable and scientifically supported abundance-based management plan to conclusion.

Response:
NMFS acknowledges this comment. The need for an abundance-based management system is laid out in the preamble to the proposed rule.

Comment 2:
In recommending the abundance indices included in Amendment 123, the Council contradicted recommendations from its own scientific peer-review body (
i.e.,
SSC) that specifically cautioned against the use of the recommended metrics in April 2021.

Response:
In April 2021, the SSC expressed concern with the potential impact of year-to-year changes to survey or abundance estimation methods; however, the SSC did not call into question whether the indices were the best scientific information available. Instead, the SSC provided important insight into the various factors affecting, and affected by, use of the indices as proposed. The Council and NMFS considered the SSC's recommendation of standardizing the indices of abundance as relative values rather than the absolute values included in this final rule as described in Section 2.8 of the Analysis. As with every scientific process, survey and abundance estimation methods are continuously reviewed and improved. Occasionally changes to survey and abundance estimation methods may affect the scale of an absolute value, whereas relative calculations (trends) are scaled such that changes are relative to the period being evaluated (
e.g.,
percent change).

The Council and NMFS acknowledged that there are tradeoffs with using absolute values versus using standardized relative values. We chose to use absolute values to improve transparency and public understanding because the alternative (standardized relative values) would make it more difficult for stakeholders to read reported survey indices in a given year and map those onto a table to anticipate the resulting Amendment 80 PSC limit. The absolute values for the abundance indices are dependent on the assumptions of the survey design and analysis, whereas a standardized relative index could show less year-to-year variability. The Council and NMFS recognized that, with absolute values, historical index values could change in the future because of potential improvements to index calculation

methods. For example, if there are improvements to understanding specific parameters used in calculating the index and those parameter values change (
e.g.,
increased precision in quantifying area sampled results in an overall increase in area sampled, or improvements to the length to weight ratio) could change the calculation method and historical index values. But by using easily understood absolute values, this approach creates greater transparency to the public and meets the objectives for the program set by the Council, recognizing that survey values could change in the future. This is similar to how other PSC limits are set in the BSAI.

Comment 3:
NMFS ignored the SSC advice regarding the use of absolute or relative indices of halibut abundance. The SSC stated that any change to the survey methods, area to which the survey applies, or methods and models used to convert the survey data into abundance values could result in changes in the Amendment 80 bycatch limits that result not from actual changes in halibut abundance but from changes in the survey design and methods used to calculate halibut abundance.

Response:
Model methods and surveys are expected to change over time and rely on scientifically accepted and statistically robust methods that consider changes in bias and precision in estimates to provide the best scientific information available for estimating halibut abundance indices. The Council and NMFS considered the SSC advice and selected the absolute index values because the combination of those two values adequately met the purpose and need for the action, is based on sound scientific survey methodology, and is transparent to regulated entities and the public. Year-to-year changes in indices of abundance due to methodology changes would have to be substantial enough to cross the breakpoints specified in table 58 to part 679 to influence the PSC limit set for the Amendment 80 sector each year, and this is a possibility in the future as the indices adjust due to changes in halibut abundance. This method accomplishes the purpose and need for the action by tying PSC limits to halibut abundance using the best scientific information available provided by the survey indices. Should issues arise in the future, the Council and NMFS will review the PSC limits established by this action during the periodic Amendment 80 program review or at any time that the Council wishes to initiate an action to consider an alternative approach as part of its normal process.

Comment 4:
NMFS's determination of the breakpoints in the lookup table to establish the halibut PSC limits that apply to the Amendment 80 sector is arbitrary, unexplained, and lacks a rational basis. The Analysis states that the breakpoints employed in these lookup tables were determined by visual inspection of relative trends in the survey indices historically.

Response:
The breakpoints identifying the different abundance states for the two indices of halibut abundance included in table 58 to part 679 reflect the cumulative input and decisions made throughout the 8 years of development of this action. The purpose of this action is to link the halibut PSC limit for the Amendment 80 sector to halibut abundance. As explained in the Analysis and the proposed rule, the breakpoints in the lookup table span recent trends in indices of halibut abundances, and the PSC limits in table 58 to part 679 reflect the Council's decision to establish a PSC limit from 0 to 35 percent below the existing limit, depending upon abundance.

The Council recommended, and NMFS agrees, that the chosen breakpoints reasonably represent the desired abundance states (high, medium, low, very low) in light of observed past survey trends. Based on IPHC survey data, the period of 1997 through 2002 is categorized as high abundance; 2003 through 2016 as medium abundance; and 2017 to present as low abundance. The very low abundance state captures the potential situation where abundance indices drop below historical levels.

The breakpoints and accompanying PSC limits established by Amendment 123 were selected to balance the goals of linking halibut PSC to abundance, reducing bycatch, and avoiding burdens that would make the rule impracticable. Any impacts that might arise from setting the abundance breakpoints at the selected levels were also addressed in consideration of the PSC limits set under the different alternatives. A greater impact from setting a breakpoint at a higher or lower level would affect the practicability of a given PSC limit. For example, if the breakpoints were set even lower at the “very low” state, such that this state would only occur when halibut abundances were catastrophically low, a much higher reduction to the PSC limit might be appropriate.

The Council recommended, and NMFS agrees, that the breakpoints included in this action are appropriate to accomplish the action's objectives. These conclusions are the result of the extensive analysis, public input, and consideration by the Council and NMFS that occurred during the development of this action.

Comment 5:
NMFS's use of the IPHC index in this action would impermissibly delegate to the IPHC the critical responsibilities of (1) conducting a survey for determining the abundance of halibut and (2) establishing the IPHC index for the abundance of that halibut, which is then used directly, by regulation, to determine the annual halibut PSC limit for the Amendment 80 sector. NMFS has directly linked its halibut PSC management for the Amendment 80 sector to actions and decisions of the IPHC that cannot be reviewed or otherwise second-guessed by NMFS. NMFS therefore proposes to delegate to the IPHC its authority to undertake the discretionary non-ministerial function of assessing, analyzing, and determining the abundance of halibut in a manner that requires the exercise of judgment.

Response:
The Council designed, and this final rule implements, an annual process for NMFS to determine Amendment 80 halibut PSC limits using halibut abundance indices provided by the IPHC and the AFSC. Each year, NMFS will rely on the IPHC index and the NMFS EBS index as the best available scientific information on halibut abundance.

In this action, NMFS relies on the IPHC to produce the IPHC index because the IPHC collects and analyzes scientific data necessary to estimate halibut abundance throughout its range. That is the IPHC's responsibility under Article III of the Convention for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea (Convention). NMFS participates in the IPHC annual process; the Regional Administrator of NMFS's Alaska Region serves as one of three U.S. Commissioners to the IPHC and is a voting member of the North Pacific Fishery Management Council. Both indices used in this action were reviewed by the Council's SSC and recommended by the Council. By relying on the IPHC to provide this type of scientific information, NMFS is not delegating management authority for any aspect of the groundfish fisheries to the IPHC. NMFS manages, and will continue to manage, the BSAI groundfish fisheries. In furtherance of that effort, NMFS will use information analyzed by the IPHC. Specifically, NMFS will use the IPHC index for halibut abundance, in conjunction with the NMFS EBS index, to apply the appropriate PSC limit. The Council and NMFS determined the halibut PSC limits established by this action are

necessary to achieve the program goals. NMFS will publish the PSC limit in the annual harvest specifications. That is clearly a management action undertaken by NMFS, and not the IPHC.

The IPHC independently conducts halibut surveys, collects data, and carefully models halibut abundance. The IPHC would continue these activities to estimate halibut abundance, whether or not NMFS implements Amendment 123. This action relies on two indices of halibut abundance derived from fishery-independent surveys which NMFS will use to determine the annual halibut PSC limit for the Amendment 80 sector. The IPHC index and the NMFS EBS index are described above in the preamble to this final rule. The two abundance indices are in table 58 to part 679, which will be used by NMFS to determine the Amendment 80 sector's halibut PSC limit each year. This process incorporates the best available scientific information available from both IPHC and AFSC each year.

The Magnuson-Stevens Act's mandate is to base decision-making on the best scientific information available, not on scientific information generated only by NMFS. NMFS commonly relies on and incorporates data, derived products, and modeling output from other entities. For instance, NMFS uses the annual Chinook salmon abundance estimate from the State of Alaska, which uses an established 3-System Index of Chinook salmon abundance in western Alaska, to determine the Chinook salmon PSC limit and performance standard applicable to vessels participating in the Bering Sea pollock fishery.

Comment 6:
The IPHC's annual abundance determinations will do the following: (1) bypass all U.S. laws that would otherwise be applicable if NMFS were making these determinations and any form of oversight by NMFS (or any other U.S. Government agency); and (2) not be subject to any of the standards for scientific integrity, such as peer review or a process for data review that would otherwise apply to the actions of U.S. agencies.

Response:
NMFS disagrees. The IPHC promulgates regulations governing the halibut fishery under the Convention. The IPHC's regulations applicable to the United States are subject to approval by the Secretary of State with the concurrence of the Secretary of Commerce. The North Pacific Halibut Act (Halibut Act), 16 U.S.C. 773c(a)-(b), provides the Secretary of Commerce with general responsibility for carrying out the Convention and the Halibut Act, including the authority to adopt regulations necessary to carry out the purposes and objectives of the Convention. The Halibut Act, 16 U.S.C. 773c(c), also provides the Council with authority to develop regulations, including limited access regulations, that are in addition to, and not in conflict with, IPHC regulations. Regulations the Council recommends may be implemented by NMFS only after approval by the Secretary of Commerce and in compliance with all applicable laws.

The IPHC's scientists produce halibut abundance indices through a robust process that involves the public and NMFS. IPHC scientists are highly-trained, independent specialists. Their work is regularly reviewed by the IPHC Scientific Review Board, and an external scientific review is periodically conducted. All findings of peer reviews are openly discussed in public meetings and published online (see
ADDRESSES
). Their models and abundance indices have been subject to peer review and will continue to be subject to peer review that is similar or identical to the peer review of data and models produced by NMFS staff or from other Federal agencies.

Based on advice from the SSC, the Council and NMFS concluded that the IPHC's annual setline indices are the best scientific information available to estimate the abundance of Pacific halibut. As with any Federal action, the best scientific information available might not stem from the work of a single agency or organization. Through the processes that have led to the development of Amendment 123 and this action, the public has had an opportunity to examine and assess the scientific underpinnings of the Federal action, and NMFS has fully considered associated public comments.

Comment 7:
It is arbitrary and capricious to base halibut PSC limits on an abundance index that does not reflect or correlate with halibut encounter rates in the Amendment 80 sector. The Amendment 80 sector's halibut encounter rates are not significantly correlated with either of the halibut abundance indices used in the proposed action to set annual halibut PSC limits. The halibut encounter rates are highly variable year-to-year. The likelihood of the Amendment 80 sector foregoing considerable groundfish catch based on the PSC limits established in the proposed action is also likely to be highly variable year-to-year. In October 2019, the SSC emphasized that a result of the analysis is that the groundfish fleet's ability to avoid halibut bycatch is poorly related to indices of halibut abundance.

Response:
The purpose of this action is to link the halibut PSC limit for the Amendment 80 sector to halibut abundance, which will ensure that the Amendment 80 sector's use of halibut PSC does not become a larger proportion of the overall halibut PSC in the BSAI in years of lower halibut abundance. The Council and NMFS considered a wide range of different abundance indices to use in the process for linking halibut abundance to halibut PSC limits during the development of this action. The SSC determined that the most scientifically appropriate indices for linking PSC limits to abundance are the NMFS EBS index and the IPHC index.

The Council and NMFS considered this issue extensively: Section 3.4.4 of the Analysis discusses a comparison of the Amendment 80 halibut encounter rates and mortality with survey trends (see
ADDRESSES
). Early in development of Amendment 123 (in October 2017), the Council reviewed a discussion paper that showed a high correlation between the NMFS EBS index of halibut biomass and the non-pelagic trawl (NPT) sector catch per unit effort (CPUE). However, over time, new information became available that changed our understanding of the correlation between the NMFS EBS index and the Amendment 80 encounter rates. As noted in Section 3.4.4 of the Analysis, there are many reasons why it would not be expected for Amendment 80 halibut PSC encounter rates to be consistently and positively correlated with fishery-independent indices of halibut biomass, including different temporal and spatial coverage, degree of halibut intermingling with target species, variable groundfish aggregation behavior across years, gear selectivity, and fishery behavior such as targeting of different species by the various fleets and companies within the sector.

The Analysis also recognizes that it is possible that higher encounter rates are at least partially attributable to environmental conditions (
e.g.,
comingling of species in an ocean environment with less temperature variation that could help separate species and guide time and area targeting of individual species). Section 5.3.2.3.2 of the Analysis discusses potential impacts of changing environmental conditions on the practicability of the Amendment 80 sector to avoid bycatch, particularly as it relates to warmer Bering Sea water temperatures and spatial patterns of target fisheries.

Regardless of these uncertainties, the purpose of this action is to link the halibut PSC limit for the Amendment 80

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

Magnuson-Stevens Act Compliance

Comment 8:
The proposed action violates section 303(a) of the Magnuson-Stevens Act that requires an amendment be necessary and appropriate for the conservation and management of a fishery because (1) it is arbitrary to base halibut PSC limits for the Amendment 80 sector on a metric of abundance that is negatively correlated to halibut encounter rates in the fishery, and (2) the proposed action will not constrain halibut PSC in other fisheries.

Response:
NMFS disagrees. The Council recommended and this final rule implements this action to link halibut PSC limits to levels of halibut abundance. The rationale for why it is appropriate to base halibut PSC limits for the Amendment 80 sector on the indices of halibut abundance included in this action is thoroughly discussed in the response to Comment 26. The Council and NMFS chose to focus this action on the Amendment 80 sector due to the high percentage of PSC assigned to this sector, as explained in Comment 13, and because other actions were underway or planned to address halibut bycatch in other fisheries, as explained in response to Comment 16.

Comment 9:
NMFS has not demonstrated that this action is necessary or appropriate for the conservation and management of the Amendment 80 sector, and this Magnuson-Stevens Act requirement is not reflected in the purpose and need statement for this action.

Response:
In section 3(5) of the Magnuson-Stevens Act, Congress defined “conservation and management” broadly. Minimizing halibut bycatch by a groundfish fishery to the extent practicable satisfies that definition, and is required and authorized by section 303 (see sections 303(a)(11) and (b)(3)). This action is a modification of an existing conservation and management measure necessary to limit the amount of halibut mortality caused by the Amendment 80 sector fisheries. The principal purpose of this action is to link the halibut PSC limit for the Amendment 80 sector to halibut abundance to reduce halibut bycatch to the extent practicable under National Standard 9 and improve conservation of the halibut fishery by reducing halibut PSC limits at times of low halibut abundance.

The Amendment 80 sector is managed under the BSAI FMP. The Magnuson-Stevens Act requires NMFS to manage the BSAI groundfish fisheries to minimize all bycatch to the extent practicable. Bycatch minimization is a central policy and mandate of the Magnuson-Stevens Act as specified in section 301(a)(9), and section 303(a)(11)(A) and (b)(14). Through National Standard 9, Congress directed that all FMPs and regulations developed pursuant to such FMPs must be consistent with the requirement to minimize bycatch to the extent practicable.

Comment 10:
NMFS failed to prepare a legally sufficient Fishery Impact Statement.

Response:
NMFS disagrees. NMFS prepared a Fishery Impact Statement that addresses all required components as specified in Magnuson-Stevens Act section 303(a)(9) and is included in Section 7.3 of Analysis (see
ADDRESSES
).

Comment 11:
NMFS and the Council failed to explain how biological constraints and human needs were balanced, or priorities were established, under the Magnuson-Stevens Act implementing regulations.

Response:
NMFS disagrees. NMFS and the Council explained how biological constraints and human needs are balanced and how priorities were established throughout the preamble to the proposed rule, the Analysis, and ROD (see
ADDRESSES
). See Section 2.4 and Appendix 1 of the Analysis and the ROD for details on how NMFS and the Council explained the biological constraints and human needs were balanced and how priorities were established and evaluated during the decision-making process.

Comment 12:
The proposed action cannot and will not prevent halibut PSC from becoming a larger proportion of total halibut removals in the BSAI because it does not constrain the PSC limits in any other BSAI groundfish fishery.

Response:
NMFS agrees that this action does not modify PSC limits for other non-Amendment 80 BSAI groundfish fisheries and does not limit halibut catch or bycatch in the directed halibut fishery or other groundfish fisheries that contribute to the total halibut removals in the BSAI. Other NMFS actions have done so or may do so in the future. This action is expected to ensure that the Amendment 80 sector's use of halibut PSC does not become a larger proportion of the overall halibut mortality in the BSAI in years of lower levels of halibut abundance. Amendment 80 PSC limits established in future years will be influenced by indices of halibut abundance according to the levels specified in table 58 to part 679. Therein, this action will reduce Amendment 80 halibut PSC in years of low halibut abundance, which is an improvement over the static PSC limit of 1,745 mt. This action focuses on the Amendment 80 fleet because of that sector's relatively large contribution to total halibut PSC in the BSAI management area.

The halibut PSC limits for all fisheries are specified according to regulations at § 679.21(b). Over the time period analyzed, the Amendment 80 sector accounted for 49.6 percent of the total PSC limits in the BSAI. The next closest fleet was the BSAI Trawl Limited Access Sector with 21.2 percent of the total PSC limit. See Table 1-1 of the Analysis. The Council and NMFS chose to focus this action on the Amendment 80 sector, because (1) at lower halibut abundance levels, the Amendment 80 sector's static PSC limit of 1,745 mt becomes a far larger proportion of the overall halibut removals in the BSAI than any other sector's PSC limit, as explained in response to Comment 12 and (2) other actions were underway or planned to address halibut bycatch in other fisheries or, the sectors not included in those actions receive a relatively small proportion of the halibut PSC limit. The current status of those actions is explained in response to Comment 16 below. The existing PSC limits for other fishery sectors will not increase; however, any sector can harvest halibut up to that sector's PSC limit in any given year and actual halibut bycatch can vary from year to year under the respective PSC limits. Accordingly, this action is expected to reduce halibut PSC at lower levels of halibut abundance for the Amendment 80 sector.

Comment 13:
This action is not consistent with Magnuson-Stevens Act implementing regulations at § 600.305(b)(3) because the action is not expected to positively impact halibut stock conservation or result in an increased allocation to the directed halibut fleet in Area 4. The only stated objective of this action is to impose constraints and associated costs on the Amendment 80 sector by establishing

halibut PSC limits that are expected to constrain the fishery at times of low halibut abundance.

Response:
NMFS disagrees. The regulatory guidelines for the Magnuson-Stevens Act's National Standards provide that each FMP should identify what the FMP is intended to accomplish. Among other things, those objectives should address the problems of a particular fishery and should be clearly stated, practicably attainable, and framed in understandable terms. The National Standard guidelines refer, at § 600.305(b)(3), to objectives of the FMP, which provide the context within which the Secretary of Commerce will judge the consistency of an FMP's conservation and management measures with the National Standards. The BSAI FMP objectives are found at Section 2.2.1 of the FMP and are not changed by this action.

Further, under the Magnuson-Stevens Act National Standard guidelines, fisheries management objectives should, among other things, be practicably attainable. This action is consistent with the BSAI FMP's objectives. Comments and responses below relating to National Standard 9 further address issues raised with the practicability of the PSC limits established by this action.

This action has clear, understandable, and attainable objectives. The Analysis and the proposed rule clearly state that the purpose of this action is to link the halibut PSC limit for the Amendment 80 sector to halibut abundance. This will change the previously static halibut PSC limit to one that may fluctuate annually in response to indices of halibut abundance. This approach will minimize bycatch to the extent practicable and prevent Amendment 80 PSC from becoming a significantly larger proportion of total halibut removals in the BSAI when halibut abundance decreases to specified thresholds. The achievement of the objective is measurable because the proposed Amendment 80 sector's annual PSC limits will be linked to a range of the halibut abundance levels depicted clearly in table 58 to part 679.

The BSAI FMP promotes conservation of the halibut resource by establishing halibut PSC limits in the groundfish fisheries. Reduction of halibut bycatch is a conservation benefit, as detailed on page 265 of the Analysis. As explained in response to Comment 53, NMFS must consider a range of economic and non-economic impacts including impacts to the halibut stock conservation and potential benefits to users of the halibut resource, including the directed halibut fleet in Area 4. Though NMFS must consider these factors, it is not a requirement that a bycatch reduction measure result in measurable positive impacts to the overall bycatch stock or to the catch allocations of the directed halibut fishery. In Section 5 of the Analysis, NMFS extensively evaluated the potential impacts on the halibut stock and directed halibut fishery. In light of the numerous variables that affect halibut biomass, this action may contribute to improvements to the halibut biomass, but that is not an expected result. It is expected that the conservation benefits achieved by this measure are more likely to result in greater use by the directed fishery, rather than improvement of the overall stock, but the result may not be binary, and whether this expected result occurs does not affect the analysis for this action.

Imposing costs is not an objective of this action. NMFS would prefer that bycatch minimization occur with little cost. However, Congress recognized that imposing costs may be necessary and directed NMFS to minimize bycatch to the extent practicable. Practicability determinations are made on a case-by-case basis for each fishery given the circumstances at the time. Additional comments and responses regarding the economic impacts of this action are included under the “Economic Impacts” heading below.

Comment 14:
To the extent the proposed action has an objective of either allocating halibut to the directed fishery or conserving halibut by reducing bycatch, the objective is not practically attainable. It is not reasonably certain that (1) overall halibut bycatch will be reduced as a result of this action, (2) the IPHC will increase catch limits in Area (4, or 3) any increase in catch limits will result in an increased commercial catch in the directed halibut fishery. To the extent conservation is a goal of the proposed action, NMFS has concluded that the proposed action has little or no conservation benefit to the halibut stock.

Response:
See the response to Comment 34 for a summary of the conservation benefits of this action. See the response to Comment 12 for a discussion of overall halibut bycatch. Allocation or re-allocation of halibut is not an objective of this action, as described in the responses to comments under the National Standard 4 heading. Management of the directed halibut fishery and expected impacts of this action are addressed in the responses to comments under the Directed Halibut Fishery heading.

Comment 15:
NMFS premises the proposed action on the supposed need to achieve equity in the specific circumstance when “the IPHC setline survey results fall into the very low abundance state.” But this is arbitrary because the proposed action addresses all abundance states and substantially reduces the Amendment 80 sector's halibut PSC limit under the status quo. The halibut stock has never been in a “very low” abundance state, which means the proposed action is chasing a phantom and doing so in an overly broad way by reducing the halibut PSC limit in all abundance states.

Response:
The proposed action is based on Congress's direction to minimize bycatch to the extent practicable while ensuring that that the action is consistent with all ten National Standards and other requirements of the Magnuson-Stevens Act. The result from linking halibut PSC limits to halibut abundance is a more equitable one than the current static PSC limit because, when abundance drops, a static level of halibut PSC represents a greater proportion of all halibut fishing mortality.

The Analysis considered various halibut abundance levels, not just those which have already been known to occur, in order to link Amendment 80 PSC limits to those various abundance levels. If the halibut stock never enters a very low level of abundance, the correlating PSC limit would not be imposed. However, including that limit in the event such a level occurs is reasonable. Including the very low abundance state ensures the Amendment 80 sector will minimize its halibut bycatch at all levels of halibut abundance and, if those abundance levels should drop to the very low state, the PSC limits become lower as well. At the Very Low/Low and Very Low/High index states, the proposed action would reduce the Amendment 80 halibut PSC limit by 35 percent from the current limit. Should the IPHC index fall into the very low abundance state, the Council and NMFS concluded that this halibut PSC limit reduction would be important to promote conservation and equitable use of the halibut stock and consistent with the abundance-based process for establishing directed halibut fishery catch limits. These measures are not overly broad; they apply in very specific conditions that will be known to the Amendment 80 sector before the fishing season begins. When abundance is categorized as high, the PSC limit will not be changed from current limits. See Comment 4 for discussion on the development of the breakpoints. In the period considered in the Analysis, the

annual Amendment 80 sector PSC limit would have been set at the maximum PSC limit of 1,745 mt in the years from 1998 through 2002 and 2008, had this action been in place. In years from 2003 through 2007 and 2009 through 2021, the Amendment 80 sector PSC limit would have been set at levels ranging from 1,309 mt to 1,571 mt representing a 10 percent to 25 percent reduction from the maximum PSC limit established by this action.

Comment 16:
Unlike the approach taken with BSAI FMP Amendment 111, the proposed action is a fragmentary and not a comprehensive approach to halibut and groundfish management. Halibut is managed on a coastwide basis, and halibut bycatch occurs in multiple fisheries and sectors across that wide range. Yet, the proposed action would myopically regulate the halibut bycatch of just one fishery sector in one area, and any benefit that might result from the proposed action is itself uncertain because any reallocation of halibut to the directed fishery hinges entirely on future unknown actions of the IPHC. This is a fragmentary approach to fisheries management and in violation of § 600.305(b)(3).

Response:
The BSAI FMP addresses halibut bycatch comprehensively, setting PSC limits for a variety of and sectors, as required by the Magnuson-Stevens Act and National Standard guidelines. This action adjusts the annual process to establish the Amendment 80 sector's PSC limit for halibut. The Council and NMFS recognize that there are ongoing and future plans to take or consider taking similar actions for other sectors, and that does not diminish or fragment the FMP's overall approach to bycatch management.

The Council established a comprehensive approach to halibut bycatch management, and it is routine for the Council to evaluate the scope of proposed adjustments based upon the problem statement and information available at the time. The scope of this action, which is applicable only to the Amendment 80 sector, was selected in February 2020 after considering the issues identified in the problem statement, the amount of halibut bycatch in each fishery sector, input at numerous public meetings, and other proposed actions that would reduce halibut PSC in other fishery sectors.

Other recent actions to reduce halibut bycatch in the BSAI include BSAI FMP Amendment 116 (83 FR 49994, October 4, 2018) and BSAI FMP Amendment 122 (88 FR 53704, August 8, 2023), which reduced halibut bycatch in the non-Amendment 80 trawl fishery (commonly known as the trawl limited-access, or “TLAS”, fishery) and Pacific cod trawl catcher vessel fishery, respectively. The Council decided, and NMFS agrees, that a step-wise approach by sector allows for a simplified and more efficient approach to adjusting halibut PSC management measures in the BSAI.

Comment 17:
The Analysis reflects a carefully considered balance by the Council of competing considerations under the National Standards. In reaching its conclusion, the Council carefully weighed all the information before it, including the benefits to the directed fishery, the need for conservation of the halibut resource, the practicability of bycatch reductions, and the potential impacts to Amendment 80 if halibut PSC limits implemented by this action were to constrain the fishery in future years. Based on the sum total of that information, the Council struck a middle ground by rejecting alternatives that considered setting PSC limits at levels higher than and lower than the halibut PSC limits included in this action.

Response:
NMFS acknowledges this comment.

Comment 18:
NMFS should uphold and approve the careful balance the Council struck. As the proposed rule correctly recognizes, Amendment 123 is consistent with all the National Standards, but most relevantly National Standards 1, 4, 8, and 9. It is also consistent with long-neglected principles of environmental justice, Administration guidance, and other relevant legal and statutory principles.

Response:
NMFS acknowledges this comment.

Comment 19:
NMFS must inform the Council of its interpretation of the Magnuson-Stevens Act's National Standards as required by the Magnuson-Stevens Act implementing regulations at § 600.305(a)(2). The proposed action is a novel approach to fishery management and is particularly reliant upon interpretations of terms in the National Standards that are not defined in statute or regulation, such as, but not limited to, the terms “reasonably calculated to promote conservation” and “fair and equitable” in National Standard 4 and “minimize bycatch to the extent practicable” in National Standard 9. NMFS did not provide the Council with the Secretary of Commerce's interpretation of these or any National Standard terms during the deliberations that resulted in the proposed action. In fact, the Council received contrary guidance. Without clear and appropriate required guidance, the Council did not receive the information required to lawfully develop and propose an action, as required by NMFS's regulations.

Response:
NMFS disagrees. The Secretary of Commerce published guidelines to the ten National Standards at §§ 600.305 through 600.355. The regulation cited in the comment, § 600.305(a)(2), states the purpose of the guidelines and is satisfied by publication of the guidelines themselves. The phrases cited as undefined by the comment are not specialized terms of art, and separate regulatory action to interpret terms within the guidelines is not necessary prior to implementing this action. NMFS has not applied the National Standards in any novel way in this rulemaking. For more discussion of the National Standards, see Section 7.1 of the Analysis (see
ADDRESSES
) and the responses to comments under the National Standard headings below.

Comment 20:
NMFS should disapprove Amendment 123 because: 1) it is not practicable under National Standard 9, consistent with its decision on Amendment 75 to the BSAI FMP (68 FR 52142, September 2, 2003); 2) NMFS did not prepare an adequate analysis, consistent with its decision on Amendment 23 to the Pacific Coast Groundfish FMP (76 FR 27508, May 11, 2011); and 3) the negative economic impacts of Amendment 123 on the Amendment 80 sector consistent with its decision on Amendment 18 (57 FR 23231, June 3, 1992).

Response:
NMFS disagrees. The Secretary of Commerce reviews each FMP amendment independently for consistency with all applicable law at the time the Council transmits the amendment for review by to the Secretary of Commerce. A decision on a past amendment is not binding in perpetuity, particularly in the context of new circumstances and requirements; therefore, the Secretary of Commerce's decision to disapprove or partially approve Amendments 75, 23, and 18 are not relevant to this action.

National Standard 1

Comment 21:
This action is not consistent with National Standard 1 because achieving optimum yield (OY) is not actually an objective of the proposed action and the action decreases the likelihood of achieving OY because halibut PSC limits included in this action at times of low halibut abundance are likely to constrain Amendment 80 fishing activity.

Response:
NMFS disagrees. The Council and NMFS determined that Amendment 123 and this final rule are consistent with National Standard 1 because, under all the PSC limits

established by this action, the BSAI groundfish fisheries will achieve OY on a continuing basis as described in Section 5.3.2.3.1 of the Analysis (see
ADDRESSES
). National Standard 1 states that conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the OY from each fishery for the U.S. fishing industry. A potential result of this action is that the Amendment 80 sector's harvests of groundfish could be constrained at the low and very low states of halibut abundance; however, this does not materially compromise the ability of the BSAI groundfish fisheries to continue harvesting between 1.4 and 2.0 million mt of groundfish annually. The phrase “achieving, on a continuing basis” is defined in the national standard guidelines at § 600.310(e)(3)(i)(B). Achieving OY does not place a requirement that every individual regulatory action must result in reaching OY. Rather, this standard is applied to the FMP as a whole.

The purpose of this action is to link halibut PSC limit for Amendment 80 sector to halibut abundance to minimize bycatch to the extent practicable. The Council and NMFS recognized in the Purpose and Need statement (see Section 1.2 of the Analysis) that NMFS must ensure the BSAI groundfish fisheries will continue to achieve optimum yield as required by the Magnuson-Stevens Act. The Analysis demonstrates that, after NMFS implements this final rule, those fisheries will do so.

Comment 22:
This action makes it less likely that the BSAI groundfish fisheries will continue to achieve OY on a continuing basis because there are reasonably foreseeable circumstances that were not considered by NMFS. In 2009 and 2010, the BSAI groundfish fisheries did not achieve OY because the total harvest was 1,335,116 mt and 1,354,662 mt, respectively, which is lower than the low range of OY at 1.4 million mt. The Amendment 80 sector fisheries harvest approximately 12 to 25 percent of the overall BSAI groundfish fisheries annually and generally at a higher percentage in years of low pollock abundance. This action is likely to constrain Amendment 80 sector harvests in years of low halibut abundance, and NMFS failed to consider the combined impacts of this action with the reasonably foreseeable event that pollock stocks could be low again in future years.

Response:
Under National Standard 1 guidelines, OY is a long-term average amount of desired yield from a stock, stock complex, or fishery. This means that, even if a fishery were to fail to reach harvest levels within the OY range for a few years over multiple decades of fishing, NMFS's management of that fishery would still be consistent with National Standard 1. The Analysis notes that the annual groundfish harvest can be highly variable across years for a variety of reasons (
e.g.,
changing ocean conditions, variability in recruitment or prey field, fisheries interactions, etc.) and that may result in years where catch is not within the OY range. However, in light of the regulations explaining National Standard 1's terms and purpose, the failure to harvest groundfish within the OY range for two out of several years of fishing does not mean that NMFS's management of the fishery fails to comply with National Standard 1.

The Analysis notes that the Council considered 2016 through 2020 to be the appropriate time period over which to evaluate halibut PSC use because it reflects Amendment 80 sector operations under their Halibut Avoidance Plan and deck sorting along with other available tools to avoid halibut and reduce halibut mortality. The example in the Analysis of a year without Amendment 80 harvest is meant to illustrate the conclusion that possible Amendment 80 harvest reductions due to PSC constraints do not cause an inability to achieve OY on a continuing basis. See Section 5.3.2.3.1 of the Analysis for further discussion on OY.

Comment 23:
NMFS's novel analytical approach to evaluating OY presumes that the Amendment 80 sector could be eliminated by the proposed action without running afoul of National Standard 1. There is nothing in the history of the development of OY for the BSAI groundfish fisheries that supports the notion that OY should be achieved by eliminating one of the fisheries.

Response:
NMFS does not expect this action to eliminate the Amendment 80 sector. The hypothetical example of achieving OY without contribution by Amendment 80 was used to illustrate why NMFS expects that, after this action, the BSAI groundfish fisheries will continue to achieve OY. See Comments 21 and 22 above.

NMFS expects that the halibut PSC limits established in table 58 to part 679 may prevent the Amendment 80 sector from fully harvesting TACs in years with low halibut abundance; however, changes in fishing behavior and effective use of available bycatch reduction tools, including halibut excluders, halibut avoidance plans, and deck sorting, could help mitigate potential negative economic impacts.

National Standard 2

Comment 24:
NMFS fails to consider the best scientific information available (contrary to National Standard 2) to assess reasonably foreseeable future environmental conditions that are likely to constrain harvests for the Amendment 80 sector in a manner that will result in a failure to achieve OY on a consistent basis. Such conditions include, but are not limited to, constraints on salmon bycatch that could limit the pollock fishery (a major contributor of the groundfish harvests), constraints due to low crab stock abundance that will likely result in tighter restrictions on crab PSC limits and/or new closed areas for Amendment 80 trawling, and increasing variability in oceanic and atmospheric conditions that scientists predict will shift flatfish and other Amendment 80 target species and result in more target species moving to areas where the Amendment 80 sector is not allowed to fish (
e.g.,
the Northern Bering Sea Research Area).

Response:
The Council and NMFS determined that Amendment 123 and this final rule are consistent with National Standard 2, as explained in Section 7.1 of the Analysis. National Standard 2 states that conservation and management measures shall be based upon the best scientific information available. NMFS used the best scientific information available to assess the likely impacts of this action and assessed future environmental conditions in this action. NMFS considered the cumulative effects of this action in the context of other reasonably foreseeable future actions in Section 5.8 of the Analysis. The Council is in the early stages of developing new potential actions to address bycatch of salmon and crab in BSAI groundfish fisheries, including the potential additional actions referenced in this comment; however, the Council has not yet made a recommendation to NMFS. Actions are considered reasonably foreseeable if some concrete step has been taken toward implementation, such as a Council recommendation or NMFS's publication of a proposed rule. Actions only “under consideration” are not generally included because they may change substantially before adoption or may not be adopted at all. They therefore cannot be reasonably described, predicted, or foreseen. See the response to Comment 64 for a discussion of NMFS's consideration of changes in oceanic and atmospheric conditions.

Comment 25:
NMFS did not use the best available information to evaluate the effects of the action on the halibut

stock because many tables in the Analysis do not include data available from 2020 and 2021. By not including catch and revenue information from these years in the Analysis, NMFS has failed to consider the expanded harvest opportunities available in Area 4 to the directed halibut fleet in 2021 and 2022. In 2022, the Area 4 halibut fishery received the largest catch allocation in 10 years, and catch data, available on NMFS's website, show a trend of decreasing utilization in the Area 4 halibut fishery that is not considered at all in the Analysis or anywhere else in the record. NMFS also inconsistently picks and chooses when it will use certain datasets in both the Analysis and the proposed rule. This inconsistent use of data is arbitrary and represents a failure to use the best scientific information available.

Response:
NMFS evaluated the data used in the Analysis. Some tables in the Analysis do not include data from 2020 through 2022 because it is likely that such data were significantly affected by the COVID-19 pandemic and, therefore, less illustrative of historical trends and future expectations. For example, allocation and utilization of halibut by the directed fishery may have been significantly affected by the pandemic. See Comments 27, 42, and 60 for further discussion about why these data sets were chosen.

Comment 26:
The proposed action is arbitrary and capricious because it fails to address the likely redistribution of halibut and use the best available information from both the EBS and the northern Bering Sea trawl surveys to establish its abundance-based bycatch limit.

Response:
NMFS disagrees. After substantive and lengthy consideration during the public Council process, the Council recommended and this action implements an annual process for determining the Amendment 80 sector halibut PSC limit that links the PSC limit to halibut abundance using two indices of halibut abundance. The two indices selected (IPHC index and the NMFS EBS index) were determined by the Council's SSC to be the best scientific information available. Data from the northern Bering Sea trawl survey is an input into the model used to generate the IPHC index, so the data are incorporated into the process for establishing the Amendment 80 halibut PSC limits implemented under this action; however, it was not selected as a primary index upon which to base the annual PSC limits. A summary of the NMFS EBS index and the IPHC index are provided above in the preamble to this final rule as well as a detailed description is provided in Section 1.6 of Analysis.

Comment 27:
By providing an “average” estimate of costs for the entire sector based on a limited set of years, not incorporating estimates of all direct and indirect costs, and not examining the true potential costs of the proposed action, NMFS presents an inaccurate assessment of the impacts that does not consider all of the best scientific information available and is otherwise arbitrary.

Response:
NMFS disagrees. NMFS recognizes that the impacts of this action on the Amendment 80 sector and their efficiency and profitability will vary by year, depending on environmental conditions, economic conditions, and other variables. This variability is analyzed and accounted for in the development of this action. The Council and NMFS chose to use the 2016 through 2019 dataset because it is more likely to be predictive of potential future costs as explained in Section 5.3.2 of the Analysis.

National Standard 3

Comment 28:
NMFS provides no rational explanation for how the halibut stock is managed as a unit throughout its range consistent with National Standard 3. National Standard 3 requires that stocks be managed as a unit throughout its range to the extent practicable. National Standard 3 also encourages NMFS to coordinate with other governments, agencies, and councils to develop an FMP for any stock overlapping jurisdictions.

Response:
Management of the halibut stock is not regulated by the Magnuson-Stevens Act or its National Standards, including National Standard 3. The Convention for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea and the Northern Pacific Halibut Act of 1982 established the governing body (IPHC) and processes for managing halibut throughout its range. Section 5(c) of the Halibut Act provides that the Council may develop regulations within U.S. waters over halibut provided that they are not in conflict with the IPHC's regulations and that they are approved by the Secretary of Commerce.

The IPHC manages Pacific halibut as a single stock between California and the upper reaches of its range in Alaska. This action does not change the direct management of the halibut stock in any way. Rather, this action modifies management of the BSAI groundfish fisheries and links the halibut PSC limit for the Amendment 80 sector to halibut abundance. As explained below, through the BSAI groundfish FMP, NMFS manages groundfish stocks consistent with National Standard 3.

Comment 29:
The proposed action would manage groundfish stocks very differently depending on who is fishing them in violation of National Standard 3. The BSAI yellowfin sole fishery would have more restrictive halibut PSC provisions when being fished by trawl vessels in the Amendment 80 sector than in the TLAS fishery.

Response:
The Council and NMFS determined that Amendment 123 and this final rule are consistent with National Standard 3, as explained in Section 7.1 of the Analysis. National Standard 3 states that, to the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination (16 U.S.C. 1851(a)(3)). National Standard 3 guidelines explain how to structure appropriate management units for stocks and stock complexes (§ 600.320). The Guidelines state that the purpose of the standard is to induce a comprehensive approach to fishery management (§ 600.320(b)). The guidelines define “management unit” as “a fishery or that portion of a fishery identified in an FMP as relevant to the FMP's management objectives,” and state that the choice of a management unit “depends on the focus of the FMP's objectives and may be organized around biological, geographic, economic, technical, social, or ecological perspectives” (§ 600.320(d)). National Standard 3 does not require an FMP to treat different sectors the same because they fish the same stock, and it does not preclude setting bycatch limits that differ by sector.

The BSAI halibut PSC limit is assigned to three sectors and the CDQ Program. The halibut PSC limit is apportioned to the Amendment 80 sector to execute all their fisheries, not only yellowfin sole. The Amendment 80 cooperative decides how, among the fisheries that are open for directed fishing, to use their PSC limit. In years where there is an Amendment 80 limited access fishery, halibut PSC is assigned to the Amendment 80 limited access fishery, and it is apportioned into PSC allowances for trawl fishery categories according to the procedure in § 679.21(b)(1)(ii)(A)(
2
) and (
3
). The BSAI trawl limited access sector's halibut PSC limit is also apportioned into PSC allowances for trawl fishery categories according to the procedure in § 679.21(b)(1)(ii)(A)(
2
) and (
3
).

Due to the high PSC use by the Amendment 80 sector, the Council chose to focus this action only on the Amendment 80 sector; see response to

Comment 13 for details. For more information about halibut management and bycatch in the different fishery sectors, see the preamble for the proposed rule (87 FR 75570, December 9, 2022). See the response to Comment 16 for an explanation of other actions to reduce halibut PSC limits in other fisheries.

National Standard 4

Comment 30:
NMFS fails to determine whether the proposed action is an allocation. NMFS's failure to determine whether the proposed action is an allocation as a threshold matter violates the Magnuson-Stevens Act and is arbitrary. NMFS muddles the record with statements suggesting that the proposed action is and is not an allocation.

Response:
NMFS disagrees. National Standard 4 states that conservation and management measures shall not discriminate between residents of different states and provides guidance regarding fair and equitable distribution of fishing privileges if it becomes necessary. NMFS does not consider this action to be an allocation of fishing privileges under National Standard 4 but has provided analysis to show that, even if it were an allocation, it is consistent with National Standard 4. To be an allocation of fishing privileges, the National Standard 4 guidelines state there must be a direct and deliberate distribution of the opportunity to participate in a fishery among identifiable, discrete user groups or individuals. While management measures can have indirect allocative effects, only those that result in direct distribution of fishing privileges are allocations for purposes of National Standard 4. The Analysis states that, under the set of alternatives considered, there is no direct allocation or assignment of fishing privileges to the directed halibut fishery participants, nor any other allocation under National Standard 4.

At times, the Analysis may refer to a “PSC allocation”
e.g.,
Analysis at page 242 (“When a PSC allocation is reached”). In that context, allocation carries its plain meaning (apportionment or distribution) which is distinct from National Standard 4's usage,
i.e.,
direct and deliberate distribution of fishing privileges. NMFS acknowledges that it might have been able to avoid some confusion had it used the terms “limit” or “apportionment” where appropriate in that context.

Comment 31:
The proposed action violates National Standard 4 because it allocates or assigns fishing privileges among various U.S. fishermen, but this allocation is not “[f]air and equitable to all such fishermen.” Any allocation of halibut from the Amendment 80 sector to the directed halibut fishery is not fair or equitable because the negative effect on the Amendment 80 sector is extremely disproportionate to any benefit that could be realized by the directed halibut fishery. NMFS also fails to provide any interpretation of the term “fair and equitable,” and its application of that term in its analysis is, at best, cursory and conclusory. NMFS's assertion that this proposed action provides a fair and equitable allocation is both baseless and unexplained.

Response:
As explained above (see response to Comment 30), this action is not an allocation under National Standard 4. But even if it were, it is fair and equitable and consistent with National Standard 4. As explained in the response to Comment 12, the reason for focusing on the Amendment 80 sector is due to the high proportion of the halibut PSC used in that sector. While the action could impose regulatory costs to one sector, the actual cost borne does not determine whether the action is fair, equitable, reasonably calculated to promote conservation, or provides an excessive share to anyone. NMFS determined that the costs were reasonable when balanced with the purpose and need, and the conservation, social, management, and environmental impacts. NMFS also determined that the action is fair and equitable because this action links halibut PSC limit for the Amendment 80 sector to levels of halibut abundance. Allocation of halibut to the directed halibut fishery is not the purpose of this action, and this action makes no such allocation. The Analysis makes clear that under the existing management regulations applicable to the directed halibut fleet, the IPHC establishes the annual catch limits for the directed halibut fishery. Any benefit to the directed halibut fishery is a potential, secondary benefit to the action. See the response to Comments 32 through 38 below for further discussion on the consistency of the alternatives with National Standard 4.

Comment 32:
Amendment 123 will begin to address conservation and equity issues in halibut management and will provide benefits to coast-wide North Pacific stakeholders and communities in both the short- and long-term. The amendment allows more of the harvesters of BSAI halibut to share in its conservation by establishing abundance-based measures for catch limits. It also provides much needed equity for Alaskans who rely on halibut for not only income but also food security, cultural traditions, and many other aspects of community well-being that cannot be captured in economic data alone. This is a more equitable mechanism for allocating conservation responsibilities and, therefore, complements the intent of National Standard 2 and National Standard 4.

Response:
NMFS agrees. The problematic nature of the no-action alternative for directed halibut fishery participants under halibut low abundance conditions is recognized in the Council's purpose and need statement. The action alternatives propose a range of halibut PSC limit reductions under high to low abundance conditions. Amendment 123 includes reductions under all but high IPHC index conditions and, in that case, proposes no change to the halibut PSC limit, thus providing equality for all users at times of reduced halibut abundance. Between 1998 and 2016, the PSC limit for the Amendment 80 sector would have ranged between 1,745 mt and 1396 mt (20% reduction). In years after 2016 the IPHC index shows a decline in overall halibut abundance in Area 4 that has resulted in notable harvest reductions among the direct halibut fishery participants and would have resulted in a 25% reduction in the Amendment 80's PSC limit had this action been in place.

Comment 33:
The proposed action cannot be reasonably expected to result in any increase in harvest opportunities in Area 4 because the IPHC establishes catch limits in Area 4. If there are any increases in abundance in Area 4, there is no guarantee that the directed halibut users in Area 4 would benefit. By relying on such contingencies over which NMFS has no control, and that are not subject to the Magnuson-Stevens Act, the purpose and need statement is irrational, insufficient, uncertain, and unlawful.

Response:
This comment mischaracterizes the action's purpose and need. The purpose of this action is to link the halibut PSC limit for the Amendment 80 sector to halibut abundance. This action will ensure that the Amendment 80 sector's use of halibut PSC does not become a larger proportion of the overall halibut PSC in the BSAI in years of lower levels of halibut abundance which will promote conservation of the halibut stock. This action does not allocate halibut harvest opportunities in Area 4. Halibut management is explained in Section 4.4 of the Analysis. The purpose and need statement includes the possible indirect result that the action may provide additional harvest opportunities in the directed halibut fisheries. However, that

would be an ancillary effect if it occurred, not the primary purpose of the action. Though there is much uncertainty about the magnitude and timing of possible benefits to the directed halibut fishery in Area 4, it is reasonable to recognize the possibility of these indirect benefits in the purpose and need statement for this action.

Comment 34:
NMFS provides no interpretation of the term “reasonably calculated to promote conservation” and otherwise fails to rationally explain why the proposed action is “reasonably calculated to promote conservation.” The Analysis contradicts NMFS's conclusion that this action will promote conservation, because the proposed action will have no effect on the conservation of the halibut stock. Amendment 123 is not consistent with National Standard 4 because it does not improve conservation of halibut.

Response:
The National Standard guidelines define the “promotion of conservation” at 50 CFR 600.325(c)(3)(ii), and the definition includes actions that encourage a rational, more easily managed use of the resource. An action may also promote conservation (in the sense of wise use) by optimizing the yield in terms of size, value, market mix, price, or economic or social benefit of the product.

The Council and NMFS determined that Amendment 123 and this final rule are consistent with National Standard 4, as explained in Section 7.1 of the Analysis. NMFS notes that the Analysis indicates that none of the alternatives will affect overall halibut spawning stock biomass, which is measured coastwide from California to Alaska. Each action alternative, however, would set the Amendment 80 sector's halibut PSC limit at or below the current level depending on indices of halibut abundance. The reduction of halibut bycatch mortality is a conservation measure; by definition, lower halibut PSC limits will result in lower halibut mortality, which is expected to provide benefits to the coastwide halibut stock, the directed halibut fisheries, or both. Given typical past IPHC practice, NMFS expects that much of the biomass conserved by this measure will accrue to the directed commercial halibut fishing limits. Later harvest of conserved halibut does not affect this action's conservation benefit. The IPHC's action with regard to halibut conserved under this action is neither necessary nor detrimental to this action or its analysis. Given the economic and cultural value of halibut and the competing interests of the commercial, recreational, sport, and subsistence users, the Council and NMFS's decision to create a bycatch management program that restricts bycatch further when halibut abundance is low represents a more rational approach to managing the halibut resource and promotes its wise use.

In addition, the halibut “stock” is distinct from and broader than the “spawning stock biomass” and is defined in the Magnuson-Stevens Act at 16 U.S.C. 1802(42) (“stock of fish”) as a species, subspecies, geographical grouping, or other category of fish capable of management as a unit. Conserved fish may benefit the stock even if they do not immediately increase the spawning stock biomass, including by greater survival of small halibut,
i.e.,
under 26 inches in size, which are expected to have longer-term positive impacts on the stock and directed fishing.

Comment 35:
It is unfair that under the static PSC limit of 1,745 mt, when BSAI halibut abundance declines PSC in Amendment 80 fisheries can become a larger proportion of total halibut removals in the BSAI, particularly in Area 4CDE, and can reduce the proportion of halibut available for harvest in directed halibut fisheries. This has had disproportionately negative impacts on local participants in the directed halibut fishery.

This action would see PSC limits rise and fall based on the abundance of halibut. This is a compromise that establishes a measure of social equity and resource conservation. Bering Sea halibut fishermen will see immediate benefits of increased directed catch limits which will support Bering Sea communities.

Response:
NMFS acknowledges the support for this action. The purpose and need statement recognizes that when BSAI halibut abundance declines, halibut PSC in Amendment 80 fisheries can become a larger proportion of total halibut removals in the BSAI, particularly in Area 4CDE, and can reduce the proportion of halibut available for harvest in directed halibut fisheries. The full purpose and need statement is available in Section 1.2 of the Analysis (see
ADDRESSES
). NMFS agrees that Bering Sea halibut fishermen may benefit from this action; however, the timing and magnitude of those benefits are uncertain.

Comment 36:
NMFS fails to explain why it must take action to achieve “equity” or how this action improves equity.

Response:
The Council recommended, and NMFS is implementing, this action to link Amendment 80 halibut PSC limits to levels of halibut abundance. This action reduces bycatch of halibut to the extent practicable and also reflects equitable considerations between groundfish fishermen and directed halibut users. This action will reduce Amendment 80 halibut PSC limits when halibut abundance decreases, which is analogous to what typically happens to the harvest limits of the direct halibut fishery when abundance decreases. This action will reduce the disparity between the directed halibut fishery and the Amendment 80 sector by implementing PSC limits for the Amendment 80 sector that fluctuate according to halibut abundance. This will mean that, annually, indices of halibut abundance will be used to establish the Amendment 80 PSC limit. The IPHC will also use indices of halibut abundance to establish the directed halibut fishery catch limits. This action may benefit the stock and it may result in increased opportunities for directed halibut fishing among the recreational, sport, subsistence, and commercial users.

This action minimizes halibut bycatch in the Amendment 80 sector to the extent practicable. There is no specific requirement that a bycatch minimization measure achieve “equity.” Equitable considerations, however, serve varying roles in the development of actions under the Magnuson-Stevens Act. For example, section 303(a)(14) of the Magnuson-Stevens Act requires FMPs to allocate any fishery harvest restrictions or recovery benefits fairly and equitably among the commercial, recreational, and charter fishing sectors in the fishery. Similarly, under National Standard 4 and its guidelines, allocations of fishing privileges must be fair and equitable. Equitable considerations are also relevant to determinations made under E.O. 12866 and E.O. 13563. It was well within the Council's purview to require lower bycatch levels during times of low abundance given that the directed fishery is expected to have lower harvest levels at times of low abundance. The Council and NMFS view this as a more equitable approach. The term “equitable” in this case has its common meaning and does not carry a particularized statutory or regulatory definition.

Comment 37:
The purpose and need statement does not mention “equity.” Thus, NMFS's stated justification for the proposed action (
i.e.,
that it is “equitable”) arbitrarily and unlawfully fails to satisfy or otherwise address the stated purpose and need. It is arbitrary for NMFS to conclusively determine that the proposed action is “fair and equitable” (presumably on National

Standard 4 grounds) without even determining whether its proposed action constitutes an allocation.

Response:
NMFS does not consider this action to be an allocation as described in response to Comment 30. The Council's purpose and need statement for this action is included in Section 1.2 of the Analysis. This action links the halibut PSC limit for the Amendment 80 sector to levels of halibut abundance. Section 5 of the Analysis addresses how this action achieves such conservation through the minimization of the Amendment 80 sector's halibut bycatch to the extent practicable and improves consistency with the IPHC's management of halibut.

This final action also achieves an equitable outcome because, at decreasing levels of halibut abundance, NMFS expects the IPHC to reduce total halibut mortality limits which will directly influence the directed halibut catch limits and under this action the Amendment 80 sector's PSC limit will also be reduced. This is in contrast to the previous static PSC limit of 1,745 mt, which meant that the Amendment 80 sector's PSC constituted a greater proportion of overall halibut mortality in the BSAI when halibut abundance decreased. This was exemplified in 2018 when the Amendment 80 halibut PSC limit accounted for 49 percent of the IPHC's 3,559 mt halibut mortality limit for Area 4. By diminishing that effect, this action conserves halibut and also achieves a more fair and equitable outcome.

Comment 38:
This proposed action violates National Standard 4 because it discriminates against residents of different states by establishing a regulation that would limit the harvesting activities of only one sector, and effectively one “person” (the Amendment 80 cooperative), which is incorporated in only one state. Amendment 80 would be the only sector or fishery subject to an abundance-based PSC limit.

Response:
NMFS disagrees. While the Amendment 80 cooperative may be incorporated in Washington, the residency of the Amendment 80 cooperative or any of its members, employees, or associated people is not the basis of this action. This action is a conservation and management measure, applicable to the entire Amendment 80 sector without regard to state of incorporation or residency. The Analysis on pages 17 and 85 and the response to Comment 16 explain the rationale behind focusing this action on the Amendment 80 sector.

National Standard 5

Comment 39:
NMFS did not consider efficiency in the utilization of fishery resources, as National Standard 5 requires. The Analysis describes the various ways in which the proposed action would reduce efficiency. The proposed action increases inefficiency and cost and results in a negative net benefit to the Nation.

Response:
NMFS disagrees. The Council and NMFS determined that Amendment 123 and this final rule are consistent with National Standard 5, as explained in Section 7.1 of the Analysis. National Standard 5 states that conservation and management measures shall, where practicable, consider efficiency in the utilization of fishery resources; except that no such measure shall have economic allocation as its sole purpose. Efficiency under National Standard 5 is a broad concept that considers efficiency not just in one sector or solely in costs but includes utilization of fishery resources (§ 600.330(b)). This means that, in terms of aggregate costs, efficiency becomes a conservation objective, where conservation constitutes wise use of all resources involved in the fishery, not just the directed fishery stocks. While a perfectly efficient fishery would harvest the OY with the minimum use of economic inputs such as labor, capital, interest, and fuel, these economic concerns are not the only aspects to consider when analyzing the potential impacts of a management action. National Standard 5 says the measures must consider efficiency but does not mandate the most efficient structure. Efficiency may be reduced to reach the BSAI FMP's social or biological objectives, which includes the reduction of bycatch and waste.

National Standard 6

Comment 40:
NMFS fails to explain how the proposed action is consistent with National Standard 6 because the proposed action would create highly restrictive PSC limits for only the Amendment 80 sector and would hinder the ability of the Amendment 80 sector to adapt to the uncertain effects of climate change on fish stocks in the region.

Response:
NMFS disagrees. National Standard 6 states that conservation and management measures shall take into account and allow for variations among, and contingencies in, fisheries, fishery resources, and catches. Amendment 123 and this final rule take into account the variability in and contingencies for Amendment 80 sector fishery operations. The Analysis discusses these at length, including the creation of table 58 to part 679, which provides for yearly flexibility, takes into account changes in environmental and other factors, and provides for variability. Changes in methods used by fishermen to avoid halibut PSC are noted as a possibility for improving halibut avoidance by the Amendment 80 sector, in that new developments may help make PSC limits less constraining. Changes in the environment and economics are discussed to the extent practicable in the Analysis. Section 3.3 of the Analysis gives evidence that the Amendment 80 sector has been in a near-constant state of change during the analyzed period and that the way in which historical fishery data were used for the impact analysis in Section 5.3.2 should be carefully considered, which they were.

Comment 41:
Amendment 123 is highly likely to cause the consolidation of the majority of Amendment 80 harvest opportunities into fewer vessels, because many vessels will not have adequate halibut PSC limits to harvest their allocations and may lead to even greater consolidation in the fishery, and this important factor is ignored by NMFS.

Response:
In Section 5.3.2.3 of the Analysis, NMFS analyzed the practicability of meeting the PSC limits considered, including the possibility that this action may cause consolidation of harvest opportunities into fewer vessels in the fishery. In Section 5.3.2.5 of the Analysis, NMFS recognizes that this is a possible outcome and did not overlook it.

Comment 42:
The proposed action is not consistent with National Standard 6 because NMFS relies on the “average” impact of the proposed action, and this does not comply with requirements at § 600.335(b). NMFS fails to consider the variations that occur in the fishery and the highly variable impacts on the Amendment 80 sector. Using average PSC use from the years 2016 through 2019 does not capture the full range of inter-annual variability in halibut PSC use by the Amendment 80 sector as well as the full range of reasons why this variability occurs.

Response:
The Council and NMFS determined that Amendment 123 and this final rule are consistent with National Standard 6, as explained in Section 7.1 of the Analysis. Here, NMFS did not rely on the average impacts in its decision-making but considered the range of impacts. To account for variability and in consideration of a range of impacts, NMFS and the Council use a matrix of various abundance levels derived from two indices and they

generate a range of halibut PSC limits. Table 58 to part 679 was specifically designed to be flexible in response to the abundance of the halibut stock.

The Analysis includes the most recent data available at the time of publication, and notes that the Council considered 2016 through 2019 to be the appropriate time period to evaluate halibut PSC use because it reflects Amendment 80 sector operations under their Halibut Avoidance Plan and deck sorting, along with other available tools to avoid halibut and reduce halibut mortality. In Section 5.3.2.2.3 of the Analysis, NMFS acknowledges that halibut PSC use is variable due to a wide range of factors, including ocean conditions. Section 5.3.2.3.2 of the Analysis discusses potential impacts of changing environmental conditions on the practicability of the Amendment 80 sector to avoid bycatch, particularly as it relates to warmer Bering Sea water temperatures and spatial patterns of target fisheries. Further, Section 5.3.2.5 of the Analysis notes that external factors, such as climate change, are also anticipated to have an impact on Amendment 80 halibut mortality rates. Table 2-5 in Section 2.1 of the Analysis describes the variation of PSC use found in those years.

Comment 43:
NMFS's disapproval of Amendment 22 to the Mackerel, Squid, and Butterfish Fishery Management Plan is instructive when analyzing consistency with National Standard 6. This action is inconsistent with National Standard 6 for similar reasons: it will result in reduced fishing opportunities and inefficiencies without conservation need or other rationale; it will hinder the Amendment 80 sector's ability to adapt to climate change effects; it will reduce flexibility needed to respond to shifting and evolving markets; and it is likely to cause consolidation of the fishery.

Response:
NMFS notes that Amendment 22 to the Mackerel, Squid, and Butterfish Fishery Management Plan (Amendment 22) is from the Mid-Atlantic Fishery Management Council. Amendment 22 would have removed vessels from the fishery by regulation to consolidate the fleet and NMFS disapproved it because there was insufficient evidence to support the purpose and need and Council's rationale for the action. Each Fishery Management Council develops fishery management plans and management measures independently for the specific management goals and objectives for each fishery. Therefore, comparison across regions, Councils, and fisheries is not a useful means of assessing the merits of a specific action. Amendment 22 should be viewed in context and based on the NMFS analysis prepared for that action. At the time of disapproval, NMFS offered five reasons for its disapproval in broad terms. Those circumstances and the analysis, decision, and proposed Amendment 22 are very different from the circumstances, analysis, and decision at issue in this action. The disapproval of Amendment 22 is neither comparable nor instructive to this action.

National Standard 7

Comment 44:
The proposed action is not consistent with National Standard 7 because it is expected to increase Amendment 80 operating costs and reduce fishing opportunities in years of low halibut abundance. This action is not practicable and does not minimize costs because NMFS envisions bankruptcy as a viable and reasonable outcome. NMFS should follow the example of disapproved Amendment 22 to the Mackerel, Squid, and Butterfish FMP. That action was found to not be necessary for conservation, did not solve the perceived race to fish, and reduced flexibility through restrictive possession limits and, as a result, was determined to be directly contrary to the intent of National Standard 7.

Response:
NMFS disagrees. The Council and NMFS determined that Amendment 123 and this final rule are consistent with National Standard 7, as explained in Section 7.1 of the Analysis. National Standard 7 promotes the greatest freedom of action in business and recreation, to the extent such action is consistent with ensuring wise use of the resources and reducing conflict in the fishery. This action seeks to ensure the wise use of the resource by reducing halibut PSC when abundance of halibut is low. As described in Section 3.3 of the Analysis, the Amendment 80 sector operates as a cooperative, so when operational challenges arise within the cooperative, the cooperative may implement resolutions and improvements. Section 5.3 of the Analysis describes how operating costs may increase for the Amendment 80 sector and that the potential for revenue decreasing exists.

Despite the potential for decreasing revenue, the Analysis does not conclude that the bankruptcy of the fleet is likely to occur. The Mid-Atlantic Fishery Management Council Illex squid fleet action (Amendment 22) referenced by commenters would have removed vessels by regulation to consolidate the fleet, which is a very different type of action than this action to implement Amendment 123. As explained in response to Comment 43, each Fishery Management Council develops fishery management plans and management measures independently for the specific management goals and objectives for each fishery. Therefore, comparison across regions, Councils, and fisheries is not useful in this context and the disapproval of Amendment 22 is neither comparable nor instructive to this action.

Comment 45:
The proposed action fails to ensure wise use of fishery resources or reduce conflict as required under National Standard 7. The Amendment 80 fishery is responsible for a fraction of the overall coastwide halibut bycatch. In 2021 and 2022, halibut bycatch in the directed halibut fishery was at record low amount (in pounds) and represented approximately 10 percent and 9 percent, respectively, of total halibut removals from all sources. Halibut bycatch throughout the coastwide range of the halibut stock is at a record low of only 9 percent of total halibut removals.

Response:
Halibut bycatch in the BSAI accounts for more than half of the coastwide total halibut bycatch. In the years 2010 through 2019, the Amendment 80 sector accounted for approximately 60 percent of the halibut bycatch mortality in the BSAI groundfish sectors (see Table 3-18 in the Analysis). By reducing the Amendment 80 sector halibut PSC limit in years of low halibut abundance, this action ensures the wise use of fishery resources. Halibut bycatch in the directed halibut fishery or by other fisheries is outside the scope of this action. As explained in response to Comment 16, other actions have or will address some of that bycatch. The fact that it will continue to occur, however, does not mean that this bycatch reduction action fails to ensure the wise use of fishery resources. Otherwise, NMFS could never take any discrete or incremental action to solve wise use concerns in one fishery.

National Standard 8

Comment 46:
NMFS erroneously concluded that this action provides for the sustained participation of fishing communities and minimizes adverse economic impacts on such communities while balancing the requirements of the Magnuson-Stevens Act. This conclusion is not supported by the Analysis prepared for this action and does not fully consider the significant adverse impacts of the proposed action on the fishing communities that rely upon the Amendment 80 sector. NMFS does not analyze the certain and adverse impact of the proposed action on communities reliant on the Amendment 80 fishery,

compared to any benefits to communities reliant on the directed halibut fishery (which are uncertain).

Response:
NMFS disagrees. National Standard 8 requires conservation and management measures shall take into account the importance of fishery resources to fishing communities by utilizing economic and social data that are based upon the best scientific information available in order to provide for the sustained participation of such communities; and to the extent practicable, minimize adverse economic impacts on such communities. NMFS analyzed the impacts of this action on communities in Appendix 1 and in Section 5.5 of the Analysis, including impacts to communities that rely on the Amendment 80 sector as well as other communities, including subsistence users. While NMFS looked at possible benefits to communities that rely on directed fishing for halibut, those benefits were only seen as a possible indirect benefit of this action, as increasing allocation to the directed halibut fleet is a function of the IPHC and outside the scope of this action. This action takes into account those competing interests and strikes a balance among them and among the National Standards.

Comment 47:
Much of the analysis of community impacts is specifically focused on either a single community, Saint Paul, or a small group of discrete communities. NMFS's effort to reallocate halibut to benefit these communities (or Saint Paul individually) violates National Standard 8.

Response:
The Council and NMFS determined that Amendment 123 and this final rule are consistent with National Standard 8, as explained in Section 7.1 of the Analysis. The social impacts analyzed address a number of communities with directed halibut fisheries or other impacts and are not solely focused on Saint Paul. Saint Paul is discussed at length, however, because it is within a region with some of the highest halibut revenues and halibut dependency, meaning the potential indirect benefits of this action could more significantly affect this specific community. Further, as explained in response to Comment 31, this action is not an allocation, and it does not reallocate halibut to communities. The purpose of this action is to link the halibut PSC limit for the Amendment 80 sector to halibut abundance. This action will minimize halibut bycatch to the extent practicable and thus contribute to the conservation of the halibut resource, especially at times of low abundance.

National Standard 9

Comment 48:
NMFS provided no guidance to the Council or the public on the interpretation of the term “practicability” during consideration of this action, as required by National Standard guidelines. When Congress enacted the term in 1996, it stated that Regional Fishery Management Councils should make reasonable efforts in their management plans to prevent bycatch and minimize mortality, but, in so doing, could not ban a type of fishing gear or a type of fishing. Furthermore, Congress stated that practicability requires an analysis of the cost of imposing a management action.

Response:
Guidance on the interpretation of National Standard 9 is given in § 600.350, which discusses a number of considerations relevant to the practicability analysis (63 FR 24212, May 1, 1998). As stated in the National Standard guidelines, inconvenience is not an excuse; bycatch must be avoided as much as practicable, and bycatch mortality must be reduced until further reductions are not practicable. Adherence to the National Standards is not discretionary, and the Councils are required to re-examine the conservation and management measures contained in their FMPs for ways to reduce bycatch on a continuing basis to ensure that bycatch is minimized to the extent practicable. This action is the result of NMFS's consideration of the costs and benefits of the PSC limit reductions at low abundance, and while NMFS agrees that there may be costs associated with the action, those costs do not exceed what is practicable. This analysis is consistent with National Standard 9, including the guidelines and the Magnuson-Stevens Act.

Comment 49:
The proposed action is feasible and practicable because existing halibut avoidance tools are not fully utilized within the Amendment 80 sector. Because of the individual vessel discretion inherent in the application of existing bycatch reduction tools, available data cannot establish the extent to which existing tools may, or may not, have been fully utilized in recent years. The Amendment 80 sector could have chosen to not fully use available halibut avoidance measures to artificially inflate halibut PSC rates to improve their argument against this action by alleging that further halibut reductions are infeasible and impracticable.

Response:
NMFS acknowledges this comment.

Comment 50:
The proposed action is inconsistent with National Standard 9 because the Amendment 80 sector has already reduced halibut PSC usage to the maximum extent practicable using all available tools. The sector has reduced its halibut PSC usage by nearly 35 percent since 2014. Amendment 123 would impose substantial operational costs at a time when costs are already rising, and it does not provide additional tools to help the fleet achieve the bycatch reductions expected to be imposed by this action.

Response:
The Council and NMFS determined that Amendment 123 and this final rule are consistent with National Standard 9, as explained in Section 7.1 of the Analysis. The Council recommended and NMFS agrees that further halibut bycatch reductions are practicable through the improved use of existing bycatch reduction tools. In the Analysis prepared for Amendment 123, NMFS acknowledged that the Amendment 80 sector has already undertaken efforts and expenditures to reduce halibut bycatch and that dramatic increases in halibut avoidance or reductions in halibut mortality are not expected using existing bycatch reduction tools. However, additional incremental improvements are anticipated to be realized under lower halibut PSC limits and, if not realized, the Amendment 80 sector may forgo some amount of profitability to continue to reduce halibut mortality.

New bycatch reduction tools are not necessary for this action to be practicable. The amount of halibut deck sorting varied during the 2016 through 2019 period and decreased in 2020. When deck sorting was reported on a vessel during any week from 2016 through 2019, the vessel was deck sorting about 70 to 80 percent of halibut that were brought onboard the vessel. A change occurred in 2020 that resulted in the percentage of halibut that were deck sorted falling to 61 percent; in 2021 (through mid-April) the percentage of halibut deck sorted was estimated to be 49 percent. Some have attributed the declining use of halibut deck sorting after 2019 to lower bycatch of halibut, meaning that individual Amendment 80 vessels did not need to deck sort to reduce halibut mortality because they were not encountering halibut at rates where it was necessary to deck sort. It is possible that with under a lower PSC limit, the Amendment 80 sector could increase their use of halibut deck sorting. As illustrated in Section 5.3.2.4 of the Analysis, the range of PSC limits established by the action are expected to have differential impacts on Amendment 80 firms. Throughout the Analysis, NMFS acknowledges that there are many factors, including choices at the individual firm level and

vessel operational level that contribute to realized PSC use.

The amount of mortality reduction that may be expected with associated increased costs or reduced efficiency cannot be quantified with any certainty. If substantial reduction in halibut mortality is realized, it is likely to be derived from the development and implementation of new technologies. The Council and NMFS considered the potential negative economic and social impacts to the Amendment 80 sector and concluded that this action strikes a balance between potential costs to the Amendment 80 sector and conservation of the halibut resource from reductions in bycatch. As explained in the response to Comment 71, NMFS has analyzed the potential costs associated with meeting the new bycatch limits and responded to similar comments in Section 8.4.2 of the Analysis. The Council and NMFS concluded that increased costs do not mean that further bycatch reductions are impracticable.

Comment 51:
NMFS fails to adhere to Magnuson-Stevens Act section 303(a)(11) because Amendment 123 prioritizes the minimization of bycatch mortality over the minimization of bycatch overall, while the statute requires the reverse order of priority.

Response:
The purpose of this action is to link the halibut PSC limit for the Amendment 80 sector to halibut abundance. This action minimizes halibut bycatch to the extent practicable. Bycatch generally refers to catching non-targeted fish, while bycatch mortality more specifically refers to situations where those non-targeted fish die from their capture. Minimization of halibut bycatch is a purpose of the action, as stated in the purpose and need in Section 1.2 of the Analysis. Minimization of both halibut bycatch and bycatch mortality are expected results of the action, in that lower PSC limits will require Amendment 80 vessels to avoid halibut bycatch and, to the extent they cannot reasonably achieve further reductions in bycatch, use available tools to reduce the mortality of the halibut caught. This is consistent with the Magnuson-Stevens Act, including section 303(a)(11) and National Standard 9.

Comment 52:
The proposed action is not consistent with National Standard 9, because, as indicated in the Analysis, this action could shift the location and timing of fisheries, which

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-25513. Public record. Not legal advice.