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Federal Register / Vol. 86, No. 168 / Thursday, September 2, 2021 / Proposed Rules
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Process To Close the Commercial Sector The current process requires an inseason closure in Federal waters during the fishing year for the commercial sector when the quota is reached or projected to be reached. When the NMFS Scientific Research Director estimates that the sum of commercial landings cobia that are sold reaches or is projected to reach the commercial quota, then NMFS will prohibit the sale and purchase of cobia for the remainder of that fishing year a commercial closure. For example, in 2020, NMFS
projected that commercial landings would reach the commercial quota on November 6, and therefore, NMFS
closed the commercial sector on November 6, 2020, through December 31, 2020 85 FR 70085; November 4, 2020.
This proposed rule would retain the possibility of an in-season closure if commercial landings reach the quota.
This proposed rule also would change the closure language in the current regulations regarding in-season quota monitoring so that commercial landings would be monitored by the ASMFC and not by NMFS. Currently, NMFS
monitors the commercial quota and closes the commercial sector when the quota is met or projected to be met. The new process would transfer quota monitoring responsibility to the ASMFC. Because Atlantic cobia are primarily landed in state waters, the ASMFC determined that they are better suited to monitor cobia landings and ensure the risk of early closures is minimized. During the fishing year, if the ASMFC estimates that the sum of commercial landings cobia that are sold, reaches or is projected to reach the commercial quota, then the ASMFC
would notify NMFS of the need for a commercial closure of the exclusive economic zone EEZ and NMFS would close the commercial sector. During any such closure, the harvest, sale, trade, barter, or purchase of Atlantic cobia would be prohibited for the remainder of that fishing year. When considering this proposed increase to the commercial quota, and when compared to cobia landings in previous fishing years, NMFS estimates that a commercial in-season closure is still possible as a result of the commercial quota being reached, but expects that any such closure would occur later in the fishing year than under the current commercial quota.
NMFS may consider additional commercial and recreational regulatory changes to be implemented through rulemaking for Atlantic cobia as
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described in Amendment 1 and Addendum 1 in future rulemaking.
Classification The NMFS Assistant Administrator has determined that this proposed rule is consistent with the Interstate FMP, the Atlantic Coastal Act, the applicable provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.
This rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.
The factual basis for this certification is described below.
A description of this proposed rule, why it is being considered, and the purposes of this proposed rule are contained in the preamble and in the SUMMARY section of the preamble. The Atlantic Coastal Act provides the statutory basis for this proposed rule.
No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting or record keeping compliance requirements are introduced in this proposed rule.
This proposed rule directly affects commercial fishing businesses that sell Atlantic cobia harvested within the EEZ
off Georgia to New York. Atlantic cobia is harvested mostly in state waters and is primarily a bycatch, not targeted, commercial species in the Mid-Atlantic and South Atlantic. During the past 6
years 20152020, 17 percent of total Atlantic cobia commercial landings were of fish taken from the EEZ.
In the South Atlantic, from 2015
through 2019, there were, on average, 82
federally permitted commercial vessels with reported landings of Atlantic cobia from the South Atlantic excluding Florida, which is outside of the Atlantic cobia stock boundary. These vessels had average annual dockside revenue from landings of Atlantic cobia of $37,663 2019 dollars. In the MidAtlantic, from 2015 through 2019, there were, on average, 31 federally permitted commercial vessels with reported landings of Atlantic cobia and, on average, each of these vessels earned approximately $2,100 2019 dollars per year from the sale of Atlantic cobia.
All of the businesses that operate the above 113 federally permitted vessels are expected to operate primarily in the commercial fishing industry NAICS

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code 11411. For Regulatory Flexibility Act purposes, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing 50 CFR 200.2. A business primarily involved in the commercial fishing industry 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 its combined annual receipts are not in excess of $11 million for all of its affiliated operations worldwide. The maximum annual dockside revenue that any of the permitted vessels had during the 5-year period was approximately $0.3 million 2019 dollars. Therefore, NMFS
concludes that all of the above 113
permitted vessels represent a small commercial fishing business.
For-hire fishing captains and crew are allowed to sell Atlantic cobia harvested from the EEZ under the recreational possession limit when the commercial season is open; however, the respective Atlantic states require individuals to have a commercial fishing license in the state where the cobia is sold, and typically the vessels used to harvest those cobia have a Federal charter/
headboat coastal migratory pelagics permit. From 2015 through 2019 less than 5 of the 1,712 currently permitted for-hire vessels sold Atlantic cobia, and the average revenue from those sales was approximately $11 2019 dollars annually per vessel.
A business that is primarily in the forhire fishing industry NAICS code 487210 is a small business if it is independently owned and operated, is not dominant in its field of operation including its affiliates and its combined annual receipts that are no more than $8.0 million for all of its affiliated operations worldwide.
Average annual gross revenue of federally permitted charter vessels and headboats in the South Atlantic is $125,261 per charter vessel and $271,835 per headboat in 2019 dollars.
Hence, NMFS expects the less than five for-hire fishing vessels that would be annually affected by the proposed rule are small businesses.
This proposed rule would increase the commercial quota of Atlantic cobia from 50,000 lb 22,680 kg to 73,116 lb 33,165 kg. This rule would also revise the decision criteria used to close Federal waters to commercial fishing for Atlantic cobia. The Federal commercial season would close if the sum of the cobia landings that are sold, as estimated by the ASMFC, reach or are projected to reach the commercial quota, and the ASMFC notifies NMFS of
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