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Discussion Starter · #1 ·
Hey everyone. As you likely know by now, NOAA and SAFMC officially has closed cobia fishing in Federal waters starting on June 20th. States are being pressured to do the same. Virginia decides at the VMRC meeting late April. North Carolina decides in early May. North Carolina has already approved a creel reduction from two fish per person per day to one fish per person per day. Below is a ton of reading, but if you care about the cobia fishery, regardless of if you feel it is overfished or not, I strongly urge you to read below about how the regulatory process has unfolded in a manner that goes completely against the intent of the Magnuson Stevens Act that empowers NOAA to regulate migratory species.

I have been fortunate to collaborate with a group of like-minded charter captains, tackle shops, mates, and custom rod and lure builders to oppose the closure. The United States Senate is considering a reauthorization to the Magnuson Stevens Act that includes provisions that should help prevent future closures based purely on catch data without some key stakeholders represented. Our group was invited to a 30 minute conference call with the professional staff of the Senate Commerce Committee and they were interested enough in our recommendations that I was invited back to present as part of a large recreational fishing roundtable with the American Sports Fishing Association, the National Association of Marine Manufacturers, the Theodore Roosevelt Conservancy Project, and CCA (along with numerous other stakeholders on the phone.) Below are the recommendations we presented.

Senator Marco Rubio, Senator Cory Booker and Members of the Subcommittee
Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard
United States Senate Commerce, Science, and Transportation Committee
In Care Of: Fern Gibbons, Committee Staff for the Majority
512 Dirksen Senate Building; Washington DC, 20510

Dear Chairman Rubio, Ranking Member Booker, and Members of the Subcommittee,

Thank you for the opportunity to offer recommendations on the proposed Magnuson Stevens Act reauthorization. We, the undersigned, are a small group of recreational fishermen, charter boat fishermen, and small business owners from Virginia and North Carolina that are currently suffering due to a recently announced closure of the cobia fishery in federal waters on June 20th. States are being pressured by NOAA to close state waters (where most cobia are caught) on the same date.

The closure stems from NOAA data reflecting a 330% spike in recreational cobia landed in 2015 versus the average annual catch of the previous seven years, leaving us almost 300% over the Annual Catch Limit (ACL.) NOAA’s root cause analysis suggests that the overage is due to a slight increase in the daily success rate per angler (0.512 fish per trip in 2014 and 0.523 fish per trip in 2015), the average size of the fish landed (29 pounds in 2014, 35 pounds in 2015) (slide 5 on the hyper link) and an increase of fishing pressure (approximately 40,000 additional trips targeting cobia-see slide 6.) That last number is certainly the most impactful, and it is incredibly dubious, as that would mean that over a 100 day cobia season there was an additional 400 boats per day targeting cobia than targeted them last year. Given that probably 30% of those days are unfishable, those numbers grow even higher on fishable days. Fishermen and fisheries resource officers who patrol the oceans daily will tell you there is increased pressure, yet will testify nowhere close to an additional 400 boats a day are in North Carolina and Virginia waters targeting cobia during the proposed closure period (June 20th-end of the year.) South Carolina and Georgia have minimal cobia fisheries after a brief spring season. Even if these numbers were believable, we have shared this data with statisticians who indicate that, unless additional variables (number of fishermen per targeted trip as an example) are produced, based on the numbers provided at most the cobia annual catch would have only increased around 40-50%, not the 300+ % claimed by NOAA. Dr. Larkin also noted that 180 surveys were used to populate the formula to determine these numbers.

This spike coincidently took place shortly after the development of a Fisheries Management Plan where regulators determined that the only accountability measure for an ACL overage for cobia would be a closure, and that three year averages would be used to determine closures except the year following a stock assessment. In addition, in 2014 NOAA cited research indicating that there was a distinct separate breeding population of cobia off of Florida, and Florida was separated from the South Atlantic Zone and was given 66% of the old Atlantic ACL. Florida has three representatives on the South Atlantic Marine Fisheries Council that determined the policies that produced this closure, yet are not subject to the impact of those rules. Meanwhile, these regulatory changes had the most significant negative impact on Virginia, yet Virginia does not have representation besides a liaison to the South Atlantic Marine Fisheries Council.

As result of this data shell game and NOAA’s insistence that Magnuson Stevens does not give them the regulatory discretion to issue an interim final rule to use a lesser accountability measure, the one year outlier record season has produced a closure that will have major negative economic impact on the inshore charter fleet and many small businesses that support the fishery.

The intent of the Magnuson Stevens Act is to:
• Providing for the implementation of fishery management plans (FMPs) which achieve optimal yield and a sustainable population.
• Establishing Regional Fishery Management Councils to steward fishery resources through the preparation, monitoring, and revising of plans which (A) enable stake holders to participate in the administration of fisheries and (B) consider social and economic needs of states.
• To the extent practicable, minimize adverse economic impacts on fishing communities.
• Minimize bycatch.

The actions of NOAA under the guise of the Magnuson Stevens Act have:
• Closed a fishery coming off a “record” season, which would only be possible if the population was healthy.
• Enacted policy impacting stakeholders in Virginia and the Outer Banks of North Carolina, even though neither of those regions have representation on the South Atlantic Marine Fisheries Council (all the North Carolina representatives are either from Morehead City, which has a distinctly different cobia season and migration pattern, or are employed by the state of North Carolina.)
• Immediately went from no intervention to closures and when faced with comments indicating the number of dollars that will be lost and businesses closed down, simply state that the MSA gives them no other alternative.

Accordingly, we the undersigned recommend the following changes to the Magnuson Stevens Act.

1) Specific guidelines must be established that require NOAA to:
a. Utilize a minimum of a three year average of Annual Catch Limit excesses in order to institute accountability measures in all circumstances. This would eliminate the loophole that allowed NOAA to institute accountability measures after the ACL is exceeded for one year if that year takes place immediately after a stock assessment. A MINIMUM of a three-year average resulting in an annual average ACL overage should be utilized to initiate a shortened season/closure at all times. This is necessary to reflect the cyclical nature of fishing and minimize the impact of unique outlier seasons.
b. Closures should be a last resort, and Congress should ensure that other accountability measures have been implemented and their impact measured before moving to a seasonal closure.

2) The Annual Catch Limit should be a ratio that measures the size of the biomass and the percentage of that biomass that can be removed without damaging the sustainability of the fishery. SERO and SEDAR’s research committee comments show that estimates on the size of the cobia biomass are still mostly unknown, and that the ACL was determined almost exclusively based on the historical catch data average. With that kind of an ACL, a successful recreational season with good numbers of fish is the path to a closure, while poor seasons and smaller fish populations are the best ways to avoid a closure. That seems to run entirely opposite the intent of the MSA, which looks to improve stocks where fish populations have decreased due to overfishing.

In the case of cobia, this is a critical change that is needed. The current ACL punishes a healthy fishery. This is reinforced given SEDAR’s comments in the South Atlantic Cobia Stock Assessment (citation: http://sedarweb.org/docs/sar/S28_SAR_SACobia_WithAddendumFinal_5.16.2013.pdf ) “Current stock status in the base run was estimated to be SSB2011/MSST = 1.75 (Table 5.1), indicating that the stock is not overfished.” –SEDAR South Atlantic Cobia Stock Assessment Page 19, PDF

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Discussion Starter · #2 ·

3) Legislative language should include explicit directions for the statistical rigor utilized in setting the annual catch limit and annual catch calculations. The current National Standard Number 2 of “best science available” gives NOAA almost zero accountability as long as there is not a comparable stock assessment conducted by another organization. In the case of cobia, this leaves fishermen without redress. NOAA does not have to prove their data is accurate. They only have to prove there isn’t an alternative data source that conflicts with their findings. Minimum thresholds should be put into place for the amount of data that needs to be collected. Charter fishing data should be included, as well as anecdotal feedback from charter fishermen. The data, the collection methodology, analysis methodology, and all variables factored into calculations should be made publicly available on a “single source of truth website.” To review the regulatory actions and catch data provided by the South Atlantic Marine Fisheries Council, NOAA, SERO, and SEDAR, our group had to explore numerous reports and visit 4 different federal websites. The cobia fisheries management page on the SAFMC website only has one of those reports.
4) A reauthorized MSA should have much more heavy emphasis on requiring NOAA to factor economic impact into closures. The economic impact should be as evenly distributed across all the states within the migration pattern of the biomass as equally as possible.
5) A reauthorized MSA should feature a mechanism of redress for fishermen to challenge NOAA’s catch data findings. Currently lawsuits are the only method for fishermen to challenge NOAA’s data. Their burden of proof is minimal given National Standard 2 does not require to be accurate, in only requires the data not to be challenged by another agency. For cobia, no other agencies have the business or scientific case to issue a large scale tagging and research program.

All fishermen support conservation. If there are no fish to catch, there are no customers for charter captains. There are no fishermen booking hotels rooms or eating at restaurants after a long day on the water. There are no parents watching as their son or daughter strains to reel in their first fish. We want a health fishery. However, the steps to maintain a healthy fishery should not include putting a fence around it and preventing access. We ask for the Magnuson Stevens reauthorization to have flexibility to drive NOAA to do what is best for all parties involved. The lack of a root cause analysis and the significant outlier data driving the cobia closure is unacceptable. The economic impact is too great for “best science available” to be the only utterance required to dismiss those loses. No family should economically stressed by a closure of, using SEDAR’s own words, a healthy, not overfished, cobia fishery.

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Discussion Starter · #3 ·
Below is a letter submitted to VMRC, Governor McAuliffe, and the Virginia Secretary of Natural Resources. This will be presented as public comment at the VMRC FinFish Meeting and VMRC meeting in April.

Dear Commissioner Bull and Members of the Virginia Marine Fisheries Commission,

We, the undersigned, are a group of recreational fishermen, charter boat fishermen, and small business owners from Virginia and North Carolina that are currently suffering due to a recently announced closure of the cobia fishery in federal waters on June 20th. States are being pressured by NOAA to close state waters (where most cobia are caught) on the same date. We are writing to urge the governor to step in and direct the Virginia Marine Resources Commission to not comply with the federal closure. The closure is not based upon a need for management based upon sound science; it is the result of a series of regulatory maneuvers that denied Virginia recreational fishermen representation during the entire regulatory process and final decisions that created management zones and allocated two thirds of the annual catch for the Atlantic Ocean to Florida and Gulf Coast. Those maneuvers, coupled with catch data that represents a huge outlier for only one year, will result in a closure that will have a devastating economic impact on the recreational inshore charter fishery and the economy of the Tidewater area of Virginia. Such actions strike to the core of the credibility of the management of our fisheries, it is vital to have sound management based on equally sound science.
There are several facts we have focused on to justify our call for Virginia Marine Resources Commission to not comply with the South Atlantic Marine Fisheries Council (SAFMC) June 20th closure of the cobia fishery. Most importantly:
1. Virginia did not have proper representation when the policies went through the required protocol for when an amendment to the FMP is created and then put into place that split the cobia enforcement zone into two zones. The Magnuson Stevens Act (Title II, Section 301, Sub Section a. Part 4/Page 58 (Page 66 of the PDF) http://www.fisheries.noaa.gov/sfa/laws_policies/msa/documents/msa_amended_2007.pdf says specifically:
1. "Conservation and management measures shall not discriminate between residents of different States. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges
2. The zone split does not represent true science. It appears to ignore Virginia tagging data that showed within it’s first four years (1995-1999) with a relatively small sample size of tagged cobia, that cobia were being recaptured in Florida and later Gulf waters. It appears that the zone split is the product of questionable science designed to produce a zone split with the goals of 1) eases the administrative burden for cobia in a manner consistent with zone splits created for Spanish Mackerel and 2) reducing the ACL for the Mid-Atlantic while increase the ACL for the Gulf.
3. The 500+% increase in annual catch for 2015 over 2014 (and a 440% increase over the previous seven years average) was such a huge outlier that NOAA should issue an emergency interim final rule to inquiry into the validity of the data and the calculation of the 2015 ACL allocation (where GA-NY received only 620,000 pounds while Florida received 880,000 pounds.) It is dubious that the primary driver behind the data is NOAA’s assertion that the increased catch was largely the result of an extra 400 boats per day primarily targeting cobia in Virginia waters. Our group, many of whom target cobia daily, have not encountered a significant increase in boat traffic. The required boats fishing and catching cobia per day to equal these catch totals is simply not practical when simply cross referencing weather patterns that would allow for sight casting cobia which is most affective and used method of fishing for cobia.
These data outliers are noteworthy given that the SEDAR28 Fisheries Management Plan says specifically that cobia are not overfished and that the ACL should be increased. It was not. Here is the language from the Fisheries Management Plan:
Modifications to the Coastal Migratory Pelagics Zone Management: Amendment 20b
Page 58 http://safmc.net/sites/default/file...aries and Transit Provisions 052114_final.pdf
“Amendment 18 set the cobia ACLs equal to the ABCs, with no buffers, because: 1) there was no indication either stock was overfished or undergoing overfishing; 2) the AMs implemented through Amendment 18 are in place to correct for any ACL overages should they occur; and 3) repeated ACL overages are not expected due to improved commercial monitoring mechanisms, proposed improvements to dealer reporting, and proposed improvements toreporting of recreational data.
The SEDAR 28 stock assessment for Atlantic migratory group cobia (SEDAR 28 2013c) determined that the stock is not overfished or experiencing overfishing.”

With this information in hand, Bill Gorham and Jonathan French conducted a detailed review of the SAFMC Mackerel Committee meeting minutes going back to 2007. What we discovered is that members of the South Atlantic Marine Fisheries Council and Gulf Marine Fisheries Council, without representation from Virginia, expressed a desire to create management zones through Amendments for king and Spanish maceral that would extend the Gulf’s coverage into Atlantic waters, in later years and after the initial required scoping processes that weighs public input heavily was completed, cobia were placed under the same classification and sub management councils as Spanish and King mackerel and were added to Amendment 18. As early at 2009 Annual Catch Limits for the Atlantic stock cobia were known within the council to be greatly reduced due to this rezoning, even though data was not available to justify any rezoning or that there were two migratory species of cobia to start with. Since those initial discussions, SAFMC has executed a series of regulatory maneuvers to create a zone split, lower the ACL, and manufacture these closures. It was not till Amendment 20b’s was posted on the Public Registrar that “migratory groups” would be defined making genetics irrelevant, and such groups and zones were made for “management purposes.”

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Discussion Starter · #4 ·
Cutting Virginia Out
Going back to 2007, there is a pattern of SAMFC making decisions that impact Virginia's fisheries without Virginia having a seat at the table. At the March 7, 2007 SAFMC Committee meeting, a member questioned the SAFMC staffer if Virginia and other members of the Mid-Atlantic Marine Fisheries Commission were needed given that the proposed changes on the agenda impacted anglers from their jurisdiction. Per the meeting minutes, here is the exchange:

March 2007 SAFMC Mackerel Committee Meeting Minutes Page 3-5 http://safmc.net/Portals/6/Meetings...e2007/MackComm/MackerelCmte030707_Minutes.pdf

Mr. Geiger: As a formality, Tom, I guess what we would do then is send a letter to the Gulf requesting that you guys hold up and do your review after we’ve had a chance to incorporate any public comment that we need to incorporate and you guys would do that -- We would request that you do that at your July and August meeting. I guess we can do that as a direction to staff. I don’t think we need a motion to do that. Is there any opposition to directing staff to go ahead and do that? Okay. Thank you. Moving on to Action 2, that has to do with Amendment 16.

Mr. Waugh: The action here is to review the draft scoping document and this is a joint South Atlantic/Gulf scoping document and it also involves the Mid-Atlantic. We work with them. I went up and attended their last meeting and they didn’t express a strong need to hold any public hearings in their area.

Third party assertions that Mid-Atlantic "didn't feel the need" for participation conflicts directly with the MSA, which requires affected communities to have an opportunity to participate in the discussion. This started a pattern where decisions were made that ultimately lead to Virginia's interests not being represented in the development of cobia management policy and, as result, Virginia facing the shortest cobia season of all the Atlantic states despite having cobia within their waters for the longest period of time and facing the most severe economic impact of any of the impacted states.

The History of Lowering the ACL

We found discussions expressing the desire to lower catches of cobia in the Atlantic (again, despite the later stock assessment that said cobia are not overfished from 2014) as early as the December 2009 SAFMC Mackerel Committee meeting. The Committee did not adopt an amendment at that time, however they started to develop recommendations that aligned with those measures despite having no data to demonstrate overfishing. Here are select comments for your review, along with citation and a link to the meeting minutes.

DECEMBER 2009 SAFMC Mackerel Committee Minutes
Page 14-25

“MS. SMIT-BRUNELLO: Robert, you could talk about whether the council would be interested in looking at protection for cobia for spawning aggregations. Right now in looking through the regulations, what we have in place for cobia is a size limit and a fairly restrictive bag limit, but the bag applies to recreational and commercial – it doesn’t matter – in that it’s two cobia per day in or from the Gulf, Mid-Atlantic or South Atlantic EEZ regardless of the number of trips or the duration of the trip. I believe that regulation has been in place for some time now, at least more than ten years. So kind of putting that as your background, I’ll let Robert talk a little bit more.

MR. BOYLES: The issue as we’ve described it – you heard from Mike Denson of our staff at the September meeting is that we have reason to be concerned about aggregations of cobia in state waters around the time of spawning in May and June and particularly down in Port Royal Sound. I guess the question that I have for the council, is the council interested in looking at protecting and affording some additional management measures on these spawning aggregations…

I think that the question we have that I’d like some guidance from the council is are we satisfied with the two-fish bag limit, with a 33-inch minimum size, or is there something more that we need to do particularly around the time of these spawning aggregations that Dr. Denson described for us back in September. The question I think that we’re asking is, is there any support for going forward with doing something to protect spawning aggregations of cobia?

MR. BOYLES: …I don’t know that we’d contemplate a complete closure, but certainly something, maybe a reduced bag limit during that time; again, which is why we’re here discussing this issue.

MR. CURRIN:… I guess it would have to go in Amendment 20 now because the ACL stuff is going to take up 18, but, yes, I’d be interested from North Carolina’s perspective in looking at changing the bag limit for cobia.

DR. CRABTREE: So where you are, George, is the council can’t just do it because South
Carolina wants to do it. You’re going to have to do it based on here is the science, here is the rationale, here is what the need is; and if you can develop that, you could do it.

Manufacturing the Science: Splitting the ACL into Two Zones

At this point, the discussion shifts to Amendment 18. Steps are being laid out where council members clearly indicate that their goals are to separate Florida from the rest of the Atlantic cobia fishery and lower the ACL despite no data available. It is worth noting that in 2013-2015 every single one of these actions took place, AGAIN despite the FMP clearly indicating that cobia were not overfished.

DR. BELCHER: … As we get into Spanish mackerel and cobia, because of the issues of assessment and what is available to us for data, we’re actually going to have to fill in that gap that we currently have with what to do with a landing stream of data. We’re not going to be able to have an assessment that is going to give us the measures of OFL that fit into the ABC control rule the way it currently is based on assessment, so we’re going to have to use a landing stream, which we have not come up with a procedure yet in terms of what dynamic are you looking at; is it going to be average landings with some amount of discount applied; what the length of time series is. We have to put that in the context of what is considered to be an overfishing level. We haven’t discussed how to do that yet

One SAFMC member then exposes the greatest fallacy in this whole cobia policy discussion. The Magnuson Stevens Act intends the ACL to represent a ration of fish caught versus the size of the biomass needed to ensure a sustainable population. Mr. Geiger exposes that for cobia, the ACL is merely an average of the available historic catch data. Such a calculation penalizes fisheries for higher fish populations because a good season will produce a closure. It also punished states like Virginia who practices stronger management levels with lower bag limits. Virginia adopted a 1 fish per person several years ago, well before other states in the management zone and the SAFMC.

MR. GEIGER: Okay, and I guess the other question is I noticed you didn’t ask for any information concerning cobia. Is there any need for additional data on cobia?

DR. BELCHER: Basically, because we have no assessment in hand, we’re going to have to fall
to landings for cobia.

The Committee then shifts to discussing the zone split, where they clearly indicate that the desire for the zone split is based on administrative burden and an attempt to lower catches in the Atlantic. Again, “science” was later presented indicating two distinct populations of cobia between Florida and the Mid-Atlantic states while disregarding Virginia’s stocking program, and using a sample size of less than 1% of one year’s catch to do so. It appears that a policy was determined and then research conducted to justify it rather than true science determining policy.

MR. CUPKA: Just a question for Gregg; Gregg, one of the issues that was in this document concerns the boundary issue in regards to cobia. We need to go ahead and make that decision, I believe, because that’s going to impact the data stream they put together to come up with an estimate of OFL and ABC for cobia. Do we not need to deal with that beforehand?

MR. WAUGH: Well, as you recall, at any SEDAR generally it is the scientists that lay out what information we have for stock separation, and I’m projecting the alternatives that we had put together for the boundary. The question I asked the SSC is are they going to provide recommendations on where that split should occur, how are they going to request that the landings be compiled, and they didn’t really have an answer. What I’ve got up here are the alternatives right now it is managed as one group. As I indicated, NMFS has done an assessment for the Gulf portion of that using Option 2, which is the separation at the Miami-Dade/Monroe County Line where we have a separation already for Spanish. The other alternative is to use it at the South Atlantic/Gulf boundary.

A separation was a fait-acompli, done without Virginia’s consent! The scientists then created a profile that was later used to split at the Florida-Georgia line. Florida then received 66% of the Atlantic quota. The following quote removes all doubt that this was an administratively focused, not a scientific focused split:

MR. MERRITT: Gregg, does it make any sense rather from a biological perspective or administrative perspective to put another option to have a boundary at the Volusia/Flagler Line,
to make it consistent with the mackerel?

MR. WAUGH: Well, I don’t think the stock separation is clear for cobia such that you could pick any one over the other, but remember that Volusia Line is a floating line that moves from the upper Florida east coast to the lower Florida southwest coast; whereas, if it’s at the Miami-Dade, It is consistent, a fixed line with Spanish.

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March 1, 2010 SAFMC Mackerel Meeting Minutes: A Plan to Reduce Cobia Catch Takes Shape
Despite no attempt to conduct a stock assessment or any science, the SAFMC chair announces that the Committee will work to split cobia into two zones.
Source: SAFMC March 2010 Mackerel Meeting Minutes, Page 2

MR. WAUGH: The Gulf Council Committee and Council reviewed the Draft Amendment 18 document. They had no recommendation on the alternatives. They did approve a control date for Gulf King Mackerel of June 30, 2009, and for Spanish Mackerel, March 31, 2010. There is a team that’s putting together the options paper that is being used for the amendment. We still have some work to do. I’ve got the Table of Contents. This is Attachment 1. The decisions that need to be made in Amendment 18 are modifications to the fishery management unit; any species we can remove. Action 2 would be to modify the framework procedure to incorporate the SEDAR process. Then the third – and these first three are joint decisions – cobia is now one stock and we want to split it into two management groups, and we’ve got some alternatives to look at doing that.
The chair then announces that because cobia is a “data poor” species, cobia assessments will be calculated assuming there is a 27.5% weighting factor that assumes overfishing. Again, this is designed to overestimate the catch. Given that the eventual MRIP data showed a 500+ % increase in Virginia waters between 2014 and 2015 (despite less than a 14% increase in Virginia citations issued in cobia and mounds of anecdotal data indicating that cobia catches didn’t significantly improve), their plan worked to perfection.
MR. WAUGH: Okay, here is the memo that went with this data request. These are analyses that the SSC requested in order to do their OFL and ABC recommendations. The assessments that were done did not have this P-star analysis probability of overfishing, so the SSC requested some additional analyses be completed. We wanted that information to be provided by March 15th so that the SSC can use that information at their April meeting. Here is what we asked for: updated catch for the 2007, 2008, and 2009 fishing years for Atlantic king mackerel; to provide available measures of recruitment such as CPUE for Atlantic king mackerel; provide updated projections for Atlantic king mackerel that accounts for cumulative uncertainty over time and based upon that 27.5 percent probability of overfishing occurring. Then it asked for some specific items in terms of fixed catch, annual Fs and so forth; ABC changes. This is the full complement of information that the SSC needs to run king mackerel through their ABC Control Rule for data-rich species. The Center has indicated that they will provide all of the material by the March 15th deadline. You will remember for Spanish mackerel, that’s going to be run through our data-poor ABC Control Rule that the SSC is working on. After the April meeting we should have all the recommendations from the SSC. Cobia would be run through the data-poor ABC Control Rule as well.
Once again, action is being determined (without Virginia representation) before data (in this case the SSC recommendations) have been made available. The Committee ASSUMES that cobia are overfished and regulates accordingly. This goes well outside of the intent of Magnuson Stevens.
The Smoking Gun: Zone Splits and ACL Reductions ARE GOING TO HAPPEN as of 2010.
Finally, in September, 2010’s Mackerel Committee meeting, the Chair (Gregg Waugh) clearly indicates that there will be a zone split and a reduced Atlantic ACL despite the fact that a stock assessment won’t be complete for another three years.
SOURCE: September 13, 2010 SAFMC Mackerel Meeting Minutes
Page 3

(Gregg Waugh) And then when we get to cobia; one, the two councils are splitting that so that is one of the joint actions, but for the portion that we will be managing, our likely ACL is going to be considerably below the current catches, so we need to look at modifying our regulations. Right now there is a two-fish bag limit in place so we need to look at modifying those regulations to ensure that the ACL is not exceeded.
Again Amendment 20b final and in place March 2015 stated ACLs would INCREASE.
So the way the document is written right now and with the accountability measures – and those deal with setting up accountability measures for how you track it during a season, what you do in-season monitoring and what you do post-season monitoring, but it does not address any management changes. So the one thing we want to spend time talking about here today, because we recognize we don’t have a lot of time for the committee, is what level of regulations we want to address in Amendment 18 that are necessary to ensure that the ACLs are not exceeded.
This pattern of disregard for MSA requirements continues into 2010. At the December 7, 2010 SAFMC Mackerel Meeting, Mr. Waugh conceded that there is no biomass-sustainable yield data available, so the ACL is determined based on an estimate of the Maximum Sustainable Yield (MSY) BASED ON THE MEDIAN OF THE HISTORICAL CATCH AVERAGES. As I have noted repeatedly, using only historical catch data to determine the ACL does not align with the intent of the MSA because it penalizes healthy fisheries while ignoring unhealthy fisheries that do not have sufficient stock assessments.
Source: Meeting Minutes December 2010 Mackerel Meeting Minutes, Page 39

MR. WAUGH: Okay, next we move to cobia. This begins on PDF Page 105 and there is no action here but just to note that MSY is unknown, MSST is unknown, MFMT is unknown. The Scientific and Statistical Committee provided the following OFL at their April 2010 meeting. Since no estimate of MSY is available for cobia, the SSC decided to estimate OFL as the median of landings’ data for the period 1986-2008. Therefore, OFL equals 857,714 pounds. In terms of the ABC we’ve got the alternatives laid out there. We’ve got two sets of tables in the amendment document. Table shows a longer time series, but some of the methodology that was used to split these has been updated. Table from 2000 on provides a more accurate split of the landings’ data, and we will come back to that as we go through. In terms of the cobia decisions, the SSC has recommended an ABC of 75 percent of the OFL, so Alternative 2 would adopt the South Atlantic Council’s SSC ABC Control Rule and set ABC equal to 643,286 pounds. Alternative 3 would establish an ABC Control Rule where the ABC equals the OFL, 857,714 pounds.
However, within minutes of offering up these options and the zone split motion carrying, Mr. Waugh immediately changes course and says with the zone split comes the need for more stringent catch restrictions. Again, reducing the catch means any overage produces an earlier closure, which most adversely impacts Virginia because cobia do not enter into Virginia waters until the end of their migration pattern. There is still no Virginia representation to resist these decisions.
Page 40-41 SAFMC December 2010 Mackerel Committee Minutes http://safmc.net/images/pdf/MackCmteMinDec10.pdf
MR. WAUGH: Okay, allocations, we don’t have an allocation for cobia, and the alternatives that we have we need some clarification on; and now that you’ve selected the boundary, if we finish before lunch, then I’ll calculate those values for full council. If we finish after, then over lunch I can calculate these values. We have a preferred, but I need some clarification. Right now Alternative 2 is based on landings of 2007-2009, splitting into the commercial and recreational. We don’t have 2009 recreational data. Table only goes through – in terms of how it would be split to analyze based on the boundary determination that you included, the data only go through 2008. Would it be your intent here to use 2006, 2007 and 2008? Deal with that first.
MR. HARTIG: Why would we be doing – I mean are we going to use Boyles’ Law or are you just going to pick a three-year date? MR. WAUGH: No, your preferred is Boyles’ Law and we’re going to come to that in a minute. MR. HARTIG: So it’s about three years we need to use?
MR. WAUGH: Yes, for this one, for Alternative 2 it was using 2007, 2008 and 2009. We don’t have 2009; so do we back it up to 2006, 2007, 2008?
MR. GEIGER: Does that make sense to everybody to do that? I’m seeing heads nodding yes.
MR. WAUGH: Okay, then for your preferred we’ve got two portions; 50 percent of the average landings and we’ve got the time period 1986-2009. The only time period data that we have broken out is to use 2000-2008, and that’s nine years. We would do the comparison – would it be your intent to do the comparison over 2000-2008 for the long time period; and then the same thing, the most recent three years would then become 2006, 2007 and 2008.
MR. CURRIN: Yes, Gregg, that makes the most sense to me. I think the question at the last meeting was it was unclear whether we might have the 2009 data or not. It’s clear now that we do not, so I think we certainly ought to be using three years; and if we have to go back to 2006, so be it.

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Discussion Starter · #6 ·

Summary and Recommendations
There it is. The ACL reduction in the Atlantic and the zone split were determined before science was made available to justify the split. Finite Accountability Measures were approved (shortening seasons, payback of overages, reducing bag limits) even though the record clearly demonstrates that the selected ACLs represent historical catch data, not a ratio of catch to biomass to ensure sustainability. The ACLs represent high degrees of potential for inaccuracy and assume overfishing despite no data to support the theory of over-fishing. With such uncertainty, responsible fisheries management policy should feature flexible Accountability Measures as to comply with requirements of the MSA. In this case, these actions by NOAA and SAFMC are not consistent with the MSA, specifically the following National Standards for Fishery Management established by the MSA:
• National Standard 1 Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery
• National Standard 4 Conservation and management measures shall not discriminate between residents of different states. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (a) fair and equitable to all such fishermen; (b) reasonably calculated to promote conservation; and (c) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privilege.
• National Standard 8 Conservation and management measures shall, consistent with the conservation requirements of this Act (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities by utilizing economic and social data that meet the requirement of paragraph (2) [i.e., National Standard 2], in order to (a) provide for the sustained participation of such communities, and (b) to the extent practicable, minimize adverse economic impacts on such communities.
SOURCE: NOAA National Standard Guidelines: http://www.fisheries.noaa.gov/sfa/laws_policies/national_standards/index.html

Virginia had no representation in the development of this policy that adversely impacts our citizens more than any other state. The Commonwealth was entitled to equal representation based on the Magnuson Stevens Act. Given the incredible negative impact on Virginia citizens and the local economy of the Chesapeake Bay, and given this egregious pattern of mismanagement by NOAA and the South Atlantic Marine Fisheries Council, we recommend that the Commonwealth of Virginia and the Virginia Marine Fisheries Management Council take the following action steps:
1. We implore Governor McAuliffe, Secretary Ward, Commissioner Bull, and the Marine Resources Commission to refuse to give up jurisdiction over state waters and deny our citizens access to the cobia resource over a singular outlier season. We urge Virginia to not comply with the NOAA/SAFMC closure in Commonwealth waters.
2. We ask that you call upon NOAA to issue an emergency interim final rule to halt the closure, recalculate the Annual Catch Limit with the appropriate allocation to the Mid-Atlantic States, and ensure that Virginia has an equal number of votes on the South Atlantic Marine Fisheries Council that has jurisdiction over the cobia fishery.
NOAA has a responsibility to deliver fair and transparent policy that reflects the intent of the Magnuson Stevens Act and our state government has a responsibility to protect the rights and interest of the citizens of the Commonwealth.

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Discussion Starter · #7 ·
Finally- I wanted to recognize Rep. Rob Wittman's efforts to protect the fishermen of Virginia from the abuse of the MSA law. Rep. Wittman's office authored a letter to NOAA asking them to retract the closure. His office has been tremendous in providing information and guidance (as has the staff of Senate Commerce.) I can't attach the file- so here is a photo of the letter

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