[Federal Register Volume 85, Number 36 (Monday, February 24, 2020)]
[Rules and Regulations]
[Pages 10328-10331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03164]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 200211-0052]
RIN 0648-BI83


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Coastal Migratory Pelagic Resources in the Gulf of Mexico and Atlantic 
Region; Framework Amendment 7

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

ACTION: Final rule.

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SUMMARY: NMFS issues regulations to implement management measures 
described in Framework Amendment 7 to the Fishery Management Plan (FMP) 
for Coastal Migratory Pelagic (CMP) Resources of the Gulf of Mexico 
(Gulf) and Atlantic Region (FMP)(Framework Amendment 7), as prepared by 
the Gulf of Mexico Fishery Management Council (Gulf Council). This 
final rule revises the commercial and recreational minimum size limit 
for the Gulf zone of the Gulf migratory group of cobia (Gulf cobia). 
The purpose of this final rule is to reduce harvest of Gulf cobia in 
the Gulf zone in response to concerns about the status of the stock 
until additional stock information becomes available.

DATES: This final rule is effective March 25, 2020.

ADDRESSES: Electronic copies of Framework Amendment 7 that contain an 
environmental assessment and a Regulatory Flexibility Act (RFA) 
analysis may be obtained from the Southeast Regional Office website at 
https://www.fisheries.noaa.gov/action/modifications-gulf-mexico-migratory-group-cobia-size-and-possession-limits.

FOR FURTHER INFORMATION CONTACT: Rich Malinowski, NMFS Southeast 
Regional Office, telephone: 727-824-5305, or email: 
[email protected].

SUPPLEMENTARY INFORMATION: The CMP fishery in the Gulf and Atlantic 
region is jointly managed by the Gulf Council and the South Atlantic 
Fishery Management Council (South Atlantic Council) (Councils) under 
the FMP, and includes king mackerel, Spanish mackerel, and Gulf cobia. 
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 
Fishery Conservation and Management Act (Magnuson-Stevens Act). Under 
the FMP, each Council can develop individual framework amendments to 
the FMP for actions that are specific to that Council's jurisdiction.
    On October 3, 2019, NMFS published a proposed rule for Framework 
Amendment 7 and requested public comment (84 FR 52864). The proposed 
rule and the Framework Amendment 7 outline the rationale for the 
actions contained in this final rule. A summary of the management 
measures described in the Framework Amendment 7 and implemented by this 
final rule is described below.

Background

    Two migratory groups of cobia exist in the southeastern US: The 
Atlantic migratory group and the Gulf migratory group. The Atlantic 
migratory group is a genetically distinct stock that ranges from 
Georgia through New York and is managed by the Atlantic States Marine 
Fisheries Commission (84 FR 4736, February 19, 2019). The Gulf 
migratory group ranges in the Gulf from Texas through Florida and in 
the Atlantic off the east coast of Florida. The Gulf migratory group is 
further divided into the Gulf zone and the Florida east coast zone. The 
Gulf zone is defined as encompassing an area of the exclusive economic 
zone (EEZ) north of a line extending east of the United States/Mexico 
border, and north and west of the line of demarcation between the 
Atlantic Ocean and the Gulf (the Councils' boundary)(50 CFR 
622.369(c)(1)(i)). The Florida east coast zone encompasses an area of 
the EEZ south and east of the line of demarcation between the Atlantic 
Ocean and the Gulf, and south of a line extending due east from the 
Florida/Georgia border (50 CFR 622.369(c)(1)(ii)).
    Within the Gulf migratory group, the Gulf Council is responsible 
for management in the Gulf zone, and the South Atlantic Council is 
responsible for management in the Florida east coast zone. Framework 
Amendment 7 is only applicable to the Gulf zone for Gulf cobia. The 
South Atlantic Council was informed of the proposed changes for cobia 
harvested in the Gulf zone but decided not to consider changes to the 
cobia management measures for the Florida east coast zone.
    Within the Gulf zone, among other measures, Gulf cobia is managed 
using a stock annual catch target (quota) and annual catch limit with 
no sector-specific allocations for the commercial and recreational 
sectors. Landings of Gulf cobia from the Gulf zone remained relatively 
consistent from 2012 through 2016. However, a decrease in landings was 
observed in 2017. During the 2018 April, June, and August Gulf Council 
meetings, fishers provided public testimony that they were witnessing a 
decrease in the presence of Gulf cobia in the Gulf zone, and requested 
that the Gulf Council address concerns about the potential health of 
the Gulf cobia stock in the Gulf zone. Landings of Gulf zone cobia from 
2018, which became available following the Gulf Council's transmittal 
of Framework Amendment 7, revealed that 2018 landings continued to 
decline from previous years. The public comments were primarily from 
charter vessel and headboat operators, and private angling 
stakeholders. Recreational landings account for greater than 90 percent 
of all Gulf zone cobia landings.
    The minimum size limit for Gulf cobia in both the Gulf and South 
Atlantic is 33 inches (83.8 cm), fork length, and has been in effect 
since the implementation of the original CMP FMP in 1983 (48 FR 5270, 
February 4, 1983). This minimum size limit applies to both sectors, and 
corresponds with the length at which life history information indicates 
that 50 percent of cobia are sexually mature (sexes combined) and 
capable of reproduction (SEDAR 28 2013). The daily Federal possession 
limit of two Gulf migratory group cobia per person per day applies to 
both sectors and has been in effect since Amendment 5 to the FMP was 
implemented in 1990 (55 FR 29370, July 19, 1990).
    Although the 2013 stock assessment (SEDAR 28 2013) did not indicate 
that Gulf cobia are overfished or undergoing overfishing, the Gulf 
Council decided to take a precautionary approach and reduce fishing 
mortality in case the observed decrease in landings indicates an 
unknown issue with the health of the stock. An update to the stock 
assessment began in late 2019, and is expected to be available to the 
Gulf Council and its scientific and statistical committee in the summer 
of 2020.
    Framework Amendment 7 includes alternatives to revise the Gulf zone 
minimum size limit, as well as the possession limit. However, the Gulf 
Council chose not to make any modifications to the possession limit at 
this time.

Management Measure Contained in This Final Rule

    This final rule implements an increase in the commercial and 
recreational minimum size limit for Gulf cobia in the Gulf zone from 33 
inches (83.8 cm), fork length, to 36 inches (91.4 cm), fork length. The 
Gulf Council

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determined that increasing the minimum size limit will increase the 
probability of a sexually mature Gulf zone cobia being able to spawn 
before being harvested, resulting in positive biological effects for 
the stock in the form of additional recruitment to the spawning stock 
over time. Harvest is expected to be reduced by 10.3 percent for the 
commercial sector, and 26.1 percent for the recreational sector, as a 
result of increasing the minimum size limit.

Comments and Responses

    NMFS received eight comments from individuals on the proposed rule 
for Framework Amendment 7, one of which was not related to Gulf cobia. 
All of the other comments supported the action to increase the Gulf 
cobia commercial and recreational minimum size limit. Some of the 
comments in support of the size limit change also suggested a 2-year 
cobia harvest closure and a no gaffing rule for landed cobia. These 
comments are outside the scope of the actions considered by the Council 
and the proposed rule. One comment did not agree with retaining the 
current possession limit. This comment is summarized below, followed by 
NMFS' response. There are no changes to this final rule from the 
proposed rule.
    Comment 1: The daily possession limit should be reduced from two 
fish per person per day to one fish per person per day until the stock 
size increases.
    Response: NMFS disagrees that the possession limit should be 
reduced. The Council considered reducing the possession limit to one 
fish per person per day along with vessel trip limits of two, four, and 
six fish per vessel. However, the Council decided not to change the 
possession limit, or implement a vessel limit because there was public 
comment in opposition to the action, and a reduction in the possession 
limit to one fish would have minimal benefit to the stock given that 
most trips (greater than 95 percent) do not catch more than one cobia 
per person.

Classification

    The Regional Administrator for the NMFS Southeast Region has 
determined that this final rule is consistent with Framework Amendment 
7, the FMP, the Magnuson-Stevens Act, and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866. This final rule is not an Executive 
Order 13771 regulatory action because this action is not significant 
under Executive Order 12866.
    The Magnuson-Stevens Act provides 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. A description of this final rule, why it is being implemented, 
and the purpose of this final rule are contained in the SUMMARY and 
SUPPLEMENTARY INFORMATION sections of this final rule.
    In compliance with section 604 of the RFA, NMFS prepared a final 
regulatory flexibility analysis (FRFA) for this final rule. The FRFA 
follows.
    No public comments received by NMFS were in opposition to the 
action in the Framework Amendment 7 and no changes to this final rule 
are made as a result of public comment. No comments were received from 
the Office of Advocacy for the Small Business Administration.
    NMFS agrees that the Gulf Council's choice of preferred alternative 
will best achieve the objectives of Framework Amendment 7 while 
minimizing, to the extent practicable, the adverse effects on 
fishermen, support industries, and associated communities.
    NMFS expects this final rule to directly affect all commercial 
vessels, charter vessels and headboats (for-hire vessels), and 
recreational anglers that fish for or harvest cobia in the Gulf zone. 
Because no Federal permit is required for the commercial harvest or 
sale of Gulf cobia, the distinction between commercial and recreational 
fishing activity for the purposes of this final rule is whether the 
fish are sold. Individuals that harvest Gulf cobia under the 
recreational possession limit in Federal waters and who do not 
subsequently sell these fish are considered to be recreational anglers. 
The RFA does not consider recreational anglers to be small entities, so 
they are outside the scope of this analysis and only the impacts on 
businesses that engage in commercial fishing (i.e., those that sell 
their harvests of Gulf cobia) will be discussed.
    For-hire vessels sell fishing services to recreational anglers. 
This final rule will not directly alter the services sold by these for-
hire vessels. Any change in anglers' demand for these fishing services 
(and associated economic effects) as a result of this final rule would 
be secondary to any direct effect on anglers and, therefore, would be 
an indirect effect of this final rule. Indirect effects are not 
relevant to the RFA. However, because for-hire captains and crew are 
allowed to harvest and sell Gulf cobia under the possession limit when 
the commercial season is open, for-hire businesses, or employees 
thereof, could be directly affected by this final rule as well.
    Although no Federal permit is required for the commercial harvest 
and sale of Gulf cobia, vessels with other Federal commercial permits 
are required to report their catches for all species harvested, 
including Gulf cobia. On average from 2013 through 2017, there were 277 
federally permitted commercial vessels with reported landings of cobia 
in the Gulf zone. Their average annual vessel-level revenue from all 
species for 2013 through 2017 was approximately $188,000 (2018 dollars) 
and cobia harvested from the Gulf zone accounted for less than one 
percent of this revenue. The maximum annual revenue from all species 
reported by a single one of these vessels from 2013 through 2017 was 
approximately $2.33 million (2018 dollars). Finally, it is unknown how 
many non-federally permitted vessels may have fished commercially for 
Gulf cobia in Federal waters during this time.
    For-hire vessels in the Gulf are required to have a limited access 
Gulf Charter Vessel/Headboat for Coastal Migratory Pelagics permit 
(Gulf CMP for-hire permit) to fish for or possess CMP species in or 
from the Gulf. As of November 8, 2019, there were 1,286 valid (non-
expired) or renewable Gulf CMP for-hire permits and 34 valid or 
renewable Gulf CMP historical captain for-hire permits. Although the 
for-hire permit application collects information on the primary method 
of operation, the permit itself does not identify the permitted vessel 
as either a headboat or a charter vessel and vessels may operate in 
both capacities. However, only federally permitted headboats are 
currently required to submit harvest and effort information to the NMFS 
Southeast Region Headboat Survey (SRHS). Participation in the SRHS is 
based on determination by the Southeast Fisheries Science Center that 
the vessel primarily operates as a headboat. As of August 20, 2019, 68 
Gulf headboats were registered in the SRHS. As a result, of the 1,320 
vessels with Gulf CMP for-hire permits (including historical captain 
permits), up to 68 may primarily operate as headboats and the remainder 
as charter vessels. The average charter vessel is estimated to receive 
approximately $88,000 (2018 dollars) in annual revenue. The average 
headboat is estimated to receive approximately

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$267,000 (2018 dollars) in annual revenue.
    For RFA purposes only, NMFS has established a small business size 
standard for businesses, including their affiliates, whose primary 
industry is commercial fishing (see 50 CFR 200.2). A business primarily 
engaged in commercial fishing (NAICS code 11411) is classified as a 
small business if it is independently owned and operated, is not 
dominant in its field of operation (including its affiliates), and has 
combined annual receipts not in excess of $11 million for all its 
affiliated operations worldwide. All of the commercial fishing 
businesses that would be directly regulated by this final rule are 
believed to be small entities based on the NMFS size standard.
    On July 18, 2019, the Small Business Administration (SBA) issued an 
interim final rule (84 FR 34261) effective August 19, 2019, that 
adjusted the monetary-based industry size standards (i.e., receipts- 
and assets-based) for inflation for many industries. For fisheries for-
hire businesses and marinas, the rule changes the small business size 
standard from $7.5 million in annual gross receipts to $8 million (as 
discussed in the July 18, 2019, issue of the Federal Register on pages 
34273 and 34279 that adjusts NAICS 487210 (Scenic and Sightseeing 
Transportation, Water) and 713930 (Marinas)).
    Pursuant to the RFA, and prior to SBA's July 18, 2019 interim final 
rule, an initial regulatory flexibility analysis was developed for this 
action using SBA's former size standards. NMFS has reviewed the 
analyses prepared for this action in light of the new size standards. 
Under the former SBA size standards, all entities subject to this 
action were considered small entities, and they all would continue to 
be considered small under the new standards. As a result, NMFS has 
determined that the new size standards do not affect the analyses 
prepared for this action.
    NMFS has not identified any other small entities that would be 
directly affected by this final rule. This final rule will increase the 
commercial and recreational minimum size limit for cobia in the Gulf 
zone from 33 inches (83.8 cm), fork length, to 36 inches (91.4 cm), 
fork length. This increase in the minimum size limit is expected to 
reduce aggregate annual cobia landings by 10.3 percent or 7,319 lb 
(3,320 kg) and decrease aggregate annual ex-vessel revenue by 
approximately $25,000 (2018 dollars). If this $25,000 decrease in ex-
vessel revenue is divided by the average number of federally permitted 
commercial vessels that harvested and sold cobia from 2013 through 
2017, it results in an average loss of $90 per vessel per year. If it 
is divided by the average number of federally permitted commercial 
vessels that harvested and sold cobia from 2013 through 2017, plus the 
number of vessels with a Federal CMP for-hire permit, it results in an 
average loss of $16 per vessel per year. The economic costs to each 
vessel would be expected to vary based on individual fishing practices 
and location. However, such distributional effects cannot be quantified 
with available data.
    Framework Amendment 7 also contains an action to consider 
modification of the possession limit for cobia in the Gulf zone. 
However, the Gulf Council decided to retain the current possession 
limit. Because this final rule would not make any changes to the 
current possession limit, no additional direct economic effects would 
be expected.
    The following discussion describes the alternatives that were not 
selected as preferred by the Gulf Council.
    Four alternatives were considered for the action to increase the 
commercial and recreational minimum size limit for cobia in the Gulf 
zone. The first alternative, the no action alternative, would retain 
the current minimum size limit of 33 inches (83.8 cm), fork length, for 
both sectors. This would not be expected to alter commercial harvest 
rates relative to the status quo, so no direct economic effects to 
small entities would be expected to occur. This alternative was not 
selected by the Council because it would fail to address concerns about 
the status of the Gulf cobia in the Gulf zone.
    The second alternative, which was selected as preferred, will 
increase the commercial and recreational minimum size limit for cobia 
to 36 inches (91.4 cm), fork length, in the Gulf zone.
    The third alternative would increase the recreational and 
commercial minimum size limit for cobia to 39 inches (99.1 cm), fork 
length, in the Gulf zone. This alternative would be expected to reduce 
aggregate annual ex-vessel revenue by approximately $72,000 (2018 
dollars). This alternative was not selected by the Gulf Council because 
they decided a smaller increase in the minimum size limit was 
appropriate given the uncertainty surrounding potential overfishing and 
the potential for negative economic effects.
    The fourth alternative would increase the recreational and 
commercial minimum size limit for cobia to 42 inches (106.7 cm), fork 
length, in the Gulf zone. This alternative would be expected to reduce 
aggregate annual ex-vessel revenue by approximately $138,000 (2018 
dollars). This alternative was not selected by the Gulf Council because 
they decided a smaller increase in the minimum size limit was 
appropriate given the uncertainty surrounding potential overfishing and 
the potential for negative economic effects.
    Three alternatives were considered by the Gulf Council for the 
action to modify the possession limit for cobia in the Gulf zone. The 
first alternative, the no action alternative, was selected as preferred 
and will maintain the current possession limit.
    The second alternative would decrease the per person recreational 
and commercial possession limit for cobia in the Gulf zone to one fish 
per day. This alternative would be expected to result in an estimated 6 
percent reduction in Gulf cobia commercial landings and an estimated 
loss in annual ex-vessel revenue of approximately $15,000 (2018 
dollars). This alternative was not selected by the Council, because 
they determined that the increase in the minimum size limit would be 
sufficient to address the concerns of potential overfishing of Gulf 
cobia prior to the next planned stock assessment. In accordance with 
that determination, and in consideration of potential negative economic 
effects, the Council decided to maintain the current possession limit 
for cobia in the Gulf zone.
    The third alternative would create a recreational and commercial 
vessel trip limit for cobia in the Gulf zone. Under this vessel limit, 
anglers would not be allowed to exceed the per person possession limit. 
The third alternative contained three options. The first option would 
set the recreational and commercial vessel trip limit for cobia in the 
Gulf zone at two fish, which would be expected to result in an 
estimated 5 percent reduction in commercial landings and an estimated 
loss in annual ex-vessel revenue of approximately $12,000 (2018 
dollars). The second option would set the recreational and commercial 
vessel trip limit for cobia in the Gulf zone at four fish, which would 
be expected to result in an estimated 1.6 percent reduction in 
commercial landings and an estimated loss in annual ex-vessel revenue 
of approximately $4,000 (2018 dollars). The third option would set the 
recreational and commercial vessel trip limit for cobia in the Gulf 
zone at six fish, which would be expected to result in an estimated 0.7 
percent reduction in commercial landings and an estimated loss in 
annual ex-vessel revenue of approximately $2,000 (2018 dollars). This 
alternative was not selected by the

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Council, because they determined that the increase in the minimum size 
limit would be sufficient to address the concerns of potential 
overfishing of Gulf cobia prior to the next planned stock assessment. 
In accordance with that determination, and in consideration of 
potential negative economic effects, the Council decided not to 
implement a vessel trip limit.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as `small entity compliance 
guides.' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, NMFS prepared a fishery bulletin, which also 
serves as a small entity compliance guide. The fishery bulletin will be 
sent to all interested parties.

List of Subjects in 50 CFR Part 622

    Cobia, Fisheries, Fishing, Gulf of Mexico, Size Limits.

    Dated: February 12, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 622 is amended 
as follows:

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

0
 1. The authority citation for part 622 continues to read as follows:

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

0
2. In Sec.  622.380, revise paragraph (a)(1) to read as follows:


Sec.  622.380  Size limits.

* * * * *
    (a) * * *
    (1) Gulf migratory group (i) Gulf zone--36 inches (91.4 cm), fork 
length.
    (ii) Florida east coast zone--33 inches (83.8 cm), fork length.
* * * * *

[FR Doc. 2020-03164 Filed 2-21-20; 8:45 am]
 BILLING CODE 3510-22-P