25630 Federal Register / Vol. 77, No. 84 / Tuesday, May 1, 2012 / Rules and Regulations 

Portsmouth, NH. This group was 

chaired by the Acting Assistant 

Administrator for Fisheries. At this 

meeting, NMFS indicated that fishing at 

a level higher than 6,700 mt would 

likely not reduce overfishing on the 

GOM cod stock. NMFS discussed 

potential sub-ACLs that would result 

from fishing at 6,700 mt for the year as 

well as providing potential changes to 

the recreational management measures 

for discussion, should this catch level 

eventually be implemented. Though no 

formal recommendations were sought or 

provided, a great deal of public input 

was received during this meeting and 

through correspondence after the 

meeting. This input was very helpful for 

NMFS as the interim measures were 

further developed. 

The typical analytical process that is 

used to inform development of catch 

and recreational measures spans from 

late August through late December. 

Because of the introduction of new and 

substantially changed GOM cod stock 

information, these analyses had to be 

conducted by NMFS within a few 

weeks’ time to ensure that rulemakingrelated analyses and development could 

be conducted and concluded in 

sufficient time for the start of the fishing 

year (May 1). Though the work and 

discussion were conducted as quickly as 

possible, it was not possible to do so in 

a manner that provided sufficient time 

for notice-and-comment rulemaking. 

NMFS is relying on the collaborative 

development process for the measures 

within this interim rule to have 

provided a meaningful opportunity to 

engage with the affected public prior to 

issuing interim measures. Although this 

rule is becoming effective on May 1, 

based on the emergency precipitating it, 

NMFS is allowing the public an 

opportunity to comment on the measure 

for 60 days after the rule becomes 

published. NMFS will address public 

comments, including any necessary 

changes, before these interim measures 

are renewed in 6 months (October 

2012). 

Similarly, NMFS finds good cause 

under 5 U.S.C. 553(d)(3) to waive the 

full 30-day delay in effectiveness for 

this rule, and to have it become effective 

on May 1, 2012. That date is the 

beginning of the fishing year for GOM 

cod. If this rule does not become 

effective on May 1, 2012, then the 

previous ACL and AMs would remain 

in effect, with the result that overfishing 

would not be reduced. These measures 

would increase overfishing on the GOM 

cod stock and, as such, are inconsistent 

with the Magnuson-Stevens Act, the 

stated intent of the GOM cod rebuilding 

program, and the FMP. Moreover, 

failing to have the rule effective on May 

1, 2012, may lead to confusion in the 

fishing community as to what 

regulations govern the harvest of GOM 

cod. Thus, the 30-day delay is 

impracticable and contrary to the public 

interest, and NMFS waives the 

requirement and makes this rule 

effective on May 1, 2012. 

NMFS has consulted with the Office 

of Information and Regulatory Affairs 

(OIRA) and due to the circumstances 

described above this action is exempt 

from review under Executive Order 

12866. 

Under section 608 of the Regulatory 

Flexibility Act, an agency may waive 

the requirement to perform a regulatory 

flexibility analysis for a rule where the 

agency finds that the ‘‘rule is being 

promulgated in response to an 

emergency that makes compliance or 

timely compliance with [the regulatory 

flexibility analysis requirements] 

impracticable.’’ 5 U.S.C. 608. As 

discussed in the preamble to this 

interim rule, and as elaborated in this 

classification section, NMFS takes this 

action to address an emergency 

situation in the GOM cod fishery. 

Undertaking a regulatory flexibility 

analysis would delay this action and put 

the GOM cod and any small businesses 

that depend on it at further risk. 

Because the nature of this emergency 

requires immediate action, NMFS finds 

that compliance with the Regulatory 

Flexibility Act is impracticable. Thus, 

the requirements of the Regulatory 

Flexibility Act are hereby waived. 

List of Subjects in 50 CFR Part 648 

Fisheries, Fishing, Reporting and 

recordkeeping requirements. 

Dated: April 26, 2012. 

Alan D. Risenhoover, 

Acting Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons stated in the 

preamble, 50 CFR part 648 is amended 

as follows: 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

■ 1. The authority citation for part 648 

continues to read as follows: 

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

■ 2. In § 648.89, 

■ a. Amend paragraph (b)(1) 

introductory text by removing the 

reference ‘‘paragraph (b)(3)’’ and adding 

‘‘paragraph (b)(5)’’ in its place; 

■ b. Suspend paragraphs (b)(3), (c)(1)(i), 

and (c)(2)(i); and 

■ c. Add paragraphs (b)(5), (c)(1)(vi), 

and (c)(2)(vi) to read as follows: 

§ 648.89 Recreational and charter/party 

vessel restrictions. 

(b) * * * 

(5) GOM cod. Private recreational 

vessels and charter party vessels 

described in paragraph (b)(1) of this 

section may not possess cod smaller 

than 19 inches (48.26 cm) in total length 

when fishing in the GOM Regulated 

Mesh Area specified under 

§ 648.80(a)(1). 

* * * * * 

(c) * * * 

(1) * * * 

(vi) Unless further restricted by the 

Seasonal GOM Cod Possession 

Prohibition specified under paragraph 

(c)(1)(v) of this section, each person on 

a private recreational vessel may 

possess no more than 9 cod per day in, 

or harvested from, the EEZ. 

* * * * * 

(2) * * * 

(vi) Unless further restricted by the 

Seasonal GOM Cod Possession 

Prohibition specified in paragraph 

(c)(2)(v) of this section, each person on 

a charter/party vessel may possess no 

more than 9 cod per day. 

* * * * * 

[FR Doc. 2012–10528 Filed 4–30–12; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 120316196–2195–01] 

RIN 0648–BB89 

Magnuson-Stevens Fishery 

Conservation and Management Act 

Provisions; Fisheries of the 

Northeastern United States; Northeast 

Multispecies Fishery; Interim Action; 

Withdrawn 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Interim rule; withdrawal. 

SUMMARY: NMFS issued interim 

measures for the 2012 Gulf of Maine 

(GOM) Atlantic cod fishery on April 3, 

2012. These measures were intended to 

become effective May 1, 2012; however, 

the authority NMFS uses to issue 

interim measures requires that interim 

measures become effective on 

publication in the Federal Register. The 

interim rule published on April 3, 2012, 

is being withdrawn so NMFS may reissue the same measures on May 1, 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 77, No. 84 / Tuesday, May 1, 2012 / Rules and Regulations 25631 

2012, to ensure that the effective date is 

consistent with both NMFS’ authority 

and the start of the 2012 GOM cod 

fishing year. 

DATES: The interim rule published on 

April 3, 2012, at 77 FR 19944 is 

withdrawn as of May 1, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Michael Ruccio, Fishery Policy Analyst, 

(978) 281–9104. 

SUPPLEMENTARY INFORMATION: NMFS 

published a temporary rule containing 

interim measures to implement GOM 

cod catch limits and recreational fishing 

rules for the 2012 fishing year on April 

3, 2012 (77 FR 19944). The interim 

measures were issued under authority of 

section 305(c) of the Magnuson-Stevens 

Fishery Conservation and Management 

Act (MSA) and were designed to 

become effective on May 1, 2012, the 

first day of the 2012 GOM cod fishing 

year. However, the effective date 

specified in the published interim rule 

is inconsistent with NMFS’ authority 

provided by the MSA. The MSA 

language that authorizes NMFS to issue 

interim measures under specific 

conditions is described in detail in the 

April 3, 2012, rule and not repeated 

here. 

The MSA authority for interim rules 

explicitly specifies that measures are 

effective upon publication in the 

Federal Register and may remain in 

place for no more than 180 days. NMFS 

has authority to extend interim 

measures for an additional 186 days 

under the MSA-granted authority. This 

provides for up to a full year (365 days) 

of interim measures. NMFS indicated 

that the interim measures issued in the 

April 3 rule would be extended by a 

subsequent rule so that measures remain 

effective for the duration of the 2012 

fishing year which runs from May 1, 

2012 to April 30, 2013. The initial 180 

day effective period in the April 3 rule 

was calculated moving forward from the 

day the rule published, even though the 

rule states it is effective on May 1. Thus, 

the initial 180 day period specified in 

the April 3 interim rule ends on 

September 30, 2012. An extension of the 

interim measures for an additional 186 

days from September 30, 2012 would be 

April 3, 2013. This would mean that 27 

days of the 2012 fishing year would not 

have catch and management measures 

in place for GOM cod. 

NMFS had published the measures in 

advance of the fishing season to provide 

advance notice to fishery participants 

and the interested public. Because the 

rule has published and the effective date 

outlined in the DATES section is 

inconsistent with NMFS’ authority and 

creates a situation that would result in 

an unregulated portion of the 2012 

fishing year, the measures and 

modifications to the Code of Federal 

Regulations (CFR) implemented by the 

rule are being withdrawn. NMFS will 

re-issue the exact measures and 

regulations previously published on 

April 3, 2012, for publication in the 

Federal Register on May 1, 2012. This 

ensures the effective date begins on the 

start of the fishing year and is consistent 

with the MSA section 305(c) authority 

that specifies interim rules are effective 

upon publication. This will result in the 

interim measures expiring on October 

27, 2012. NMFS may then be able to 

extend the interim measures for an 

additional 186 days to ensure the 

measures are effective for the entire May 

1, 2012–April 30, 2013 fishing year. 

NMFS recognizes the withdrawal and 

re-publication of measures may cause 

some confusion for fishermen and those 

interested in the 2012 GOM cod fishery. 

Because the effective date in the April 

3 rule is inconsistent with NMFS 

authority, it is not possible to simply 

correct the language. By withdrawing 

and re-issuing the interim measures for 

publication in the Federal Register on 

May 1, 2012, NMFS will ensure that the 

measures are effective at the start of the 

fishing year, consistent with both the 

intent of the previously published 

interim rule and the MSA authority for 

issuing interim rules. Furthermore, this 

withdrawal and re-issuance of the GOM 

cod 2012 fishing year interim measures 

will ensure that NMFS may use the 

MSA authority for a full fishing year, as 

intended and requested by the New 

England Fishery Management Council 

(Council). NMFS intends to explain the 

need for the withdrawal and re-issuance 

to the Council, fishery participants, and 

the interested public. 

For the reasons outlined here, the 

publication on April 3, 2012 (77 FR 

19944), implementing temporary rules 

to 50 CFR part 648 with an effective 

date of May 1–September 30, 2012, is 

withdrawn. 

As previously stated, NMFS intends 

to re-issue the measures contained in 

the April 3, 2012 (77 FR 19944), on May 

1, 2012. 

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

Dated: April 25, 2012. 

Alan D. Risenhoover, 

Acting Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 2012–10458 Filed 4–30–12; 8:45 am] 

BILLING CODE 3510–22–P 


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