AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issued regulations to implement management measures described in Amendment 31 to the Fishery Management Plan (FMP) for Coastal Migratory Pelagics (CMP) of the Gulf of Mexico (Gulf) and Atlantic Region (Amendment 31), as prepared by the Gulf of Mexico (Gulf Council) and South Atlantic Fishery Management Councils (South Atlantic Council) (Councils). This final rule removes Atlantic migratory group cobia (Atlantic cobia) from Federal management under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). At the same time, this final rule implements comparable regulations under the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act) to replace the existing Magnuson-Stevens Act based regulations in Atlantic Federal waters. The purpose of Amendment 31 is to facilitate improved coordination of Atlantic cobia in state and Federal waters, thereby more effectively constraining harvest and preventing overfishing and decreasing adverse socio-economic effects to fishermen.

DATES:

This final rule is effective March 21, 2019.

ADDRESSES:

Electronic copies Amendment 31 may be obtained from the Southeast Regional Office website at https://www.fisheries.noaa.gov/​action/​coastal-migratory-pelagics-amendment-31-management-atlantic-migratory-group-cobia. Amendment 31 includes an environmental assessment, a fishery impact statement, a regulatory impact review, and a Regulatory Flexibility Act (RFA) analysis.

FOR FURTHER INFORMATION CONTACT:

Karla Gore, NMFS Southeast Regional Office, telephone: 727-551-5753, or email: karla.gore@noaa.gov.

SUPPLEMENTARY INFORMATION:

The coastal migratory pelagics fishery in the Atlantic region is managed under the FMP and includes cobia, along with king and Spanish mackerel. The FMP was prepared by the Councils and is implemented by NMFS through regulations at 50 CFR part 622 under authority of the Magnuson-Stevens Act.

On October 11, 2018, NMFS published a notice of availability for Amendment 31 and requested public comment (83 FR 51424). On November 9, 2018, NMFS published a proposed rule for Amendment 31 and requested public comment (83 FR 56039). The proposed rule and Amendment 31 outline the rationale for the actions contained in this final rule. A summary of the management measures described in Amendment 31 and implemented by this final rule is provided below.

Background

Through the CMP FMP, cobia is managed in two distinct migratory groups. The first is the Gulf migratory group of cobia that ranges both in the Gulf from Texas through Florida as well as in the Atlantic off the east coast of Florida (Gulf cobia). The second is the Atlantic migratory group of cobia that is managed from Georgia through New York (Atlantic cobia). The boundary between these two migratory groups is the Georgia-Florida state boundary. Both the Gulf and the Atlantic migratory groups of cobia were assessed through SEDAR 28 in 2013 and neither stock was determined to be overfished or experiencing overfishing.

The majority of Atlantic cobia landings occur in state waters and, despite closures in Federal water in recent years, recreational landings have exceeded the recreational annual catch limit (ACL) and the combined stock ACL. This has resulted in shortened fishing seasons, which have been ineffective at constraining harvest. Following overages of the recreational and combined stock ACLs in 2015 and 2016, Federal waters closures for recreational harvest occurred in both 2016 (June 20) and 2017 (January 24). Additionally, Federal waters were closed to commercial harvest of Atlantic cobia in 2016 (December 5) and 2017 (September 4), because the commercial ACL was projected to be reached during the fishing year.

Allowable harvest in state waters following the Federal closures varied by time and area. Harvest in state waters during the Federal closures contributed to the overage of the recreational ACL and the combined stock ACL. The South Atlantic Council requested that the Atlantic States Marine Fisheries Commission (ASMFC) consider complementary management measures for Atlantic cobia, as constraining harvest in Federal waters has not prevented the recreational and combined ACLs from being exceeded. The ASMFC consists of 15 Atlantic coastal states that manage and conserve their shared coastal fishery resources.

In April 2018, the ASFMC implemented the Interstate FMP, which established state management for Atlantic cobia with the purpose of improving cobia management in the Atlantic. Each affected state developed an implementation plan that included regulations in their state waters. In addition, the ASMFC is currently amending the Interstate FMP for Atlantic cobia to establish a mechanism for recommending future management measures to NMFS. Upon implementation of Amendment 31, such management measures would need to be implemented in Federal waters through the authority and process defined in the Atlantic Coastal Act.

The management measures contained within the ASMFC's Interstate FMP are consistent with the current Federal regulations for Atlantic cobia. Under the ASMFC plan, regulations in each state must match, or be more restrictive than, the Interstate FMP management measures. Georgia, South Carolina, North Carolina, and Virginia have implemented more restrictive regulations for the recreational sector in their state waters than those specified in the Interstate FMP. Those regulations include recreational bag and vessel limits, and minimum size limits, in addition to allowable fishing seasons. The Interstate FMP also provides the opportunity for states to declare de minimis status for their Atlantic cobia recreational sector if a state's recreational landings for 2 of the previous 3 years is less than one percent of the coastwide recreational landings for the same time period. States in a de minimis status would be required to adopt the regulations (including season) of the closest adjacent non-de minimis state or accept a 1 fish per vessel per day trip limit and a minimum size limit of 29 inches (73.7 cm), fork length. Maryland, Delaware, and New Jersey have declared a de minimis status.

The Magnuson-Stevens Act requires a council to prepare an FMP for each fishery under its authority that requires conservation and management. Any stocks that are predominately caught in Federal waters and are overfished or subject to overfishing, or likely to become overfished or subject to overfishing, are considered to require conservation and management (50 CFR 600.305(c)(1)). Beyond such stocks, councils may determine that additional stocks require conservation and management. Thus, not every fishery requires Federal management and the NMFS National Standard Guidelines at 50 CFR 600.305(c) provide factors that NMFS and the Councils should consider when considering removal of a stock from an FMP. This analysis is contained in Amendment 31.

Based on this analysis, the Councils and NMFS have determined that Atlantic cobia is no longer in need of conservation and management within the South Atlantic Council's jurisdiction and the stock is eligible for removal from the CMP FMP. The majority of Atlantic group cobia landings are in state waters and the stock is not overfished or undergoing overfishing. Additionally, the CMP FMP has proven ineffective at resolving the primary ongoing user conflict between the recreational fishermen from different states, and it does not currently appear to be capable of promoting a more efficient utilization of the resource. Most significantly, the harvest of Atlantic cobia is adequately managed in state waters by the ASMFC and their Interstate FMP, which was implemented in April 2018. For the commercial sector, the ASMFC's Interstate FMP specified management measures for Atlantic cobia that are consistent with the current ACL and accountability measure (AM) specified in the Federal regulations implemented pursuant to the CMP FMP.

Therefore, NMFS and the Councils have determined that management by the states, in conjunction with the ASMFC and Secretary of Commerce, will be more effective at constraining harvest and preventing overfishing, offering greater biological protection to the stock and decreasing adverse socioeconomic effects to fishermen. Further, management of Atlantic cobia by the ASMFC is expected to promote a more equitable distribution of harvest of the species among the states.

Management Measure Contained in This Final Rule

This final rule removes Atlantic cobia from Federal management under the Magnuson-Stevens Act. At the same time, it implements comparable regulations, in Federal waters, under the Atlantic Coastal Act.

Current commercial management measures for Atlantic cobia include a minimum size limit of 33 inches (83.8 cm), fork length and a commercial trip limit of two fish per person per day, not to exceed six fish per vessel per day. Federal regulations for recreational harvest of Atlantic cobia in Federal waters include a minimum size limit of 36 inches (91.4 cm), fork length and a bag and possession of one fish per person per day, not to exceed six fish per vessel per day.

Under the authority of the Atlantic Coastal Act, this final rule implements these same minimum size limits, recreational bag and possession limits, and commercial trip limits in Federal waters. Additionally, this final rule implements regulations consistent with current CMP FMP regulations for the fishing year, general prohibitions, authorized gear, and landing fish intact provisions specific to Atlantic cobia.

The current Atlantic cobia commercial ACL is 50,000 lb (22,680 kg) and the recreational ACL is 620,000 lb (281,227 kg). The removal of Atlantic cobia from Federal management under the Magnuson-Stevens Act removes these sector ACLs. Under this final rule, a commercial quota of 50,000 lb (22,280 kg) is implemented consistent with the current commercial ACL. The current commercial AM requires that if commercial landings reach or are projected to reach the ACL, then commercial harvest will be prohibited for the remainder of the fishing year. This final rule implements commercial quota closure provisions through the Atlantic Coastal Act to prohibit commercial harvest once the commercial quota is reached or projected to be reached.

The ASMFC's Interstate FMP has specified a recreational harvest limit (RHL) of 613,800 lb (278,415 kg) in state and Federal waters and state-by-state recreational quota shares (harvest targets) of the coastwide RHL. During the development of the Interstate FMP, one percent of the amount of the recreational allocation of the current Federal ACL (initially 6,200 lb (2,812 kg)) was set aside to account for harvests in de minimis states (Maryland, Delaware, and New Jersey). The harvest targets for each state, in both state and Federal waters, are 58,311 lb (26,449 kg) for Georgia, 74,885 lb (33,967 kg) for South Carolina, 236,316 lb (107,191 kg) for North Carolina and 244,292 lb (110,809 kg) for Virginia. Percentage allocations are based on states' percentages of the coastwide historical landings in numbers of fish.

The removal of Atlantic cobia from Federal management under the Magnuson-Stevens Act removes the recreational sector AM for Atlantic cobia. The current recreational AM requires that if both the recreational ACL and the stock ACL are exceeded in a fishing year, then in the following fishing year recreational landings will be monitored for a persistence in increased landings. Also, if necessary, the recreational vessel limit will be reduced to no less than 2 fish per vessel to ensure recreational landings achieve the recreational annual catch target, but do not exceed the recreational ACL in that fishing year. Additionally, if the reduction in the recreational vessel limit is determined to be insufficient to ensure that recreational landings will not exceed the recreational ACL, then the length of the recreational fishing season will be reduced.

In place of the current recreational AM, state-defined regulations and seasons implemented consistent with the ASMFC's Interstate FMP are designed to keep harvest within the state harvest targets. If a state's average annual landings over the 3-year time period are greater than their annual harvest target, then the Interstate FMP requires the state to adjust their recreational season length or recreational vessel limits for the following 3 years, as necessary, to prevent exceeding their harvest target in the future years.

Upon implementation of Amendment 31, Atlantic cobia will be managed under the ASMFC's Interstate FMP in state waters and through Atlantic Coastal Act regulations in Federal waters. This will ensure that Atlantic cobia continues to be managed in Federal waters and that there will be no lapse in management of the stock. These regulations are being implemented concurrently with the removal of Atlantic cobia from the CMP FMP and serve essentially the same function as the current CMP FMP based management measures. NMFS expects that the Interstate FMP and Atlantic Coastal Act will provide adequate management of Atlantic cobia in state and Federal waters and ensure that the stock has sufficient conservation and management measures in place.

Comments and Responses

NMFS received 14 comments on the proposed rule and Amendment 31 from members of the public and fishing associations. Of these comments, two supported the actions in the proposed rule and Amendment 31, with which NMFS agrees. Another comment related to potential future measures in Florida state waters along the east coast, which is unrelated to the Atlantic cobia stock and beyond the scope of the actions contained in Amendment 31. NMFS refers the commenter to the State of Florida for potential future changes to state regulations.

NMFS received 11 comments questioning the recreational and commercial management measures contained in the proposed rule. These comments questioned the basis for the less restrictive size and bag limits for commercial vessels, as compared to recreational vessels, harvesting Atlantic cobia. Initially, NMFS notes that all of the management measures contained in this rule are merely continued under the Atlantic Coastal Act from existing Magnuson-Stevens Act based regulations, and none of the size and bag restrictions originate from Amendment 31. The more restrictive recreational size and bag limits were implemented via the final rule associated with Framework Amendment 4 to the FMP (82 FR 36344, August 4, 2017). Prior to that final rule, the size and possession limits were the same for recreational and commercial vessels. The CMP FMP allocates over 90 percent of the harvest of the Atlantic cobia stock to the recreational sector; thus, recreational harvest can easily lead to exceeding acceptable harvest levels for the entire stock, potentially leading to overfishing. Increasing recreational harvest in 2015 and 2016 did exactly that, with recreational landings being more than double the total stock ACL in each year, which resulted in extended Federal closures for the recreational sector. The more restrictive recreational management measures questioned in the comments were implemented to reduce recreational harvest to acceptable levels and promote more equitable fishing opportunities for all anglers through avoiding prolonged Federal closures. Without continuing the more restrictive recreational measures under the Atlantic Coastal Act, NMFS could not expect management measures in Federal waters to constrain the harvest of Atlantic cobia to acceptable levels, thereby helping to prevent overfishing.

No changes were made to this final rule as a result of public comment.

Classification

The Regional Administrator, Southeast Region, NMFS has determined that this final rule is consistent with Amendment 31, the FMP, the Magnuson-Stevens Act, and other applicable laws. Additionally, this final rule is compatible with the effective implementation of the ASMFC's Interstate FMP for Atlantic cobia.

This final rule has been determined to be not significant for purposes of Executive Order 12866. NMFS expects this final rule would reduce regulatory complexity and administrative costs, as well as provide economic benefits to recreational anglers through expanded harvest opportunities in Federal waters and a more stable recreational fishing season for Atlantic cobia.

The Magnuson-Stevens Act and Atlantic Coastal Act provide the statutory basis for this final rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this final rule. Accordingly, the Paperwork Reduction Act does not apply to this final rule.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this rule would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination was published in the proposed rule and is not repeated here. None of the public comments that were received specifically addressed the certification and NMFS has not received any new information that would affect its determination that this rule would not have a significant economic impact on a substantial number of small entities. As a result, a final regulatory flexibility analysis was not required and none was prepared.

List of Subjects

50 CFR Part 600

• Atlantic
• Cobia
• Fisheries
• Fishing
• South Atlantic

50 CFR Part 622

• Atlantic
• Cobia
• Fisheries
• Fishing
• South Atlantic

50 CFR Part 697

• Atlantic
• Cobia
• Fisheries
• Fishing
• South Atlantic

For the reasons set out in the preamble, 50 CFR parts 600, 622, and 697 are amended as follows:

PART 600—MAGNUSON-STEVENS ACT PROVISIONS

1. The authority citation for part 600 continues to read as follows:

Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.

2. In § 600.725, in paragraph (v), in the table under heading “III. South Atlantic Fishery Management Council,” under entry 8, remove and reserve entry 8.C and add entry 25 in numerical order to read as follows:

PART 622—FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH ATLANTIC

3. The authority citation for part 622 continues to read as follows:

Authority: 16 U.S.C. 1801 et seq.

4. In § 622.1, revise the Table 1 entry for “FMP for Coastal Migratory Pelagic Resources”, and add footnote 9 to Table 1 to read as follows:

5. In § 622.375, revise paragraph (a)(2) to read as follows:

6. In § 622.380, revise paragraph (a)(1) and remove and reserve paragraph (a)(2).

The revision reads as follows:

7. In § 622.381, revise paragraph (a) to read as follows:

8. In § 622.382, revise the heading for paragraph (a) and remove paragraph (a)(1)(vi).

The revision reads as follows:

9. In § 622.384, remove and reserve paragraph (d)(2).

10. In § 622.385, remove paragraph (c).

11. In § 622.388, remove paragraph (f).

12. In appendix G to part 622, revise figure 3 to read as follows:

Appendix G to Part 622—Coastal Migratory Pelagics Zone Illustrations

PART 697—ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

13. The authority citation for part 697 continues to read as follows:

Authority: 16 U.S.C. 5101 et seq.

14. In § 697.2, in paragraph (a), add a definition for “Atlantic migratory group cobia” in alphabetical order to read as follows:

15. In § 697.7, add paragraph (g) to read as follows:

16. Add § 697.28 to subpart B to read as follows: