[Federal Register Volume 62, Number 162 (Thursday, August 21, 1997)]
[Rules and Regulations]
[Pages 44421-44422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22094]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Chapter VI

[Docket No. 970728184-7184-01; I.D. 060997C]


Policy Guidelines for the Use of Emergency Rules

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

ACTION: Policy guidelines for the use of emergency rules.

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SUMMARY: NMFS is issuing revised guidelines for the Regional Fishery 
Management Councils (Councils) in determining whether the use of an 
emergency rule is justified under the authority of the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act). The 
guidelines were also developed to provide the NMFS Regional 
Administrators guidance in the development and approval of regulations 
to address events or problems that require immediate action. These 
revisions make the guidelines consistent with the requirements of 
section 305(c) of the Magnuson-Stevens Act, as amended by the 
Sustainable Fisheries Act.

DATES: Effective August 21, 1997.

FOR FURTHER INFORMATION CONTACT: Paula N. Evans, NMFS, 301/713-2341.

SUPPLEMENTARY INFORMATION:

Background

    On February 5, 1992, NMFS issued policy guidelines for the use of 
emergency rules that were published in the Federal Register on January 
6, 1992 (57 FR 375). These guidelines were consistent with the 
requirements of section 305(c) of the Magnuson Fishery Conservation and 
Management Act. On October 11, 1996, President Clinton signed into law 
the Sustainable Fisheries Act (Public Law 104-297), which made numerous 
amendments to the Magnuson-Stevens Act. The amendments significantly 
changed the process under which fishery management plans (FMPs), FMP 
amendments, and most regulations are reviewed and implemented. Because 
of these changes, NMFS is revising the policy guidelines for the 
preparation and approval of emergency regulations. Another change to 
section 305(c), concerning interim measures to reduce overfishing, will 
be addressed in revisions to the national standards guidelines.

Rationale for Emergency Action

    Section 305(c) of the Magnuson-Stevens Act provides for taking 
emergency action with regard to any fishery, but does not define the 
circumstances that would justify such emergency action. Section 305(c) 
provides that:
    1. The Secretary of Commerce (Secretary) may promulgate emergency 
regulations to address an emergency if the Secretary finds that an 
emergency exists, without regard to whether a fishery management plan 
exists for that fishery;
    2. The Secretary shall promulgate emergency regulations to address 
the emergency if the Council, by a unanimous vote of the voting 
members, requests the Secretary to take such action;
    3. The Secretary may promulgate emergency regulations to address 
the emergency if the Council, by less than a unanimous vote of its 
voting members, requests the Secretary to take such action; and
    4. The Secretary may promulgate emergency regulations that respond 
to a public health emergency or an oil spill. Such emergency 
regulations may remain in effect until the circumstances that created 
the emergency no longer exist, provided that the public has had an 
opportunity to comment on the regulation after it has been published, 
and in the case of a public health emergency, the Secretary of Health 
and Human Services concurs with the Secretary's action.

Policy

    The NOAA Office of General Counsel has defined the phrase 
``unanimous vote,'' in paragraphs 2 and 3 above, to mean the unanimous 
vote of a quorum of the voting members of the Council only. An 
abstention has no effect on the unanimity of the quorum vote. The only 
legal prerequisite for use of the Secretary's emergency authority is 
that an emergency must exist. Congress intended that emergency 
authority be available to address conservation, biological, economic, 
social, and health emergencies. In addition, emergency regulations may 
make direct allocations among user groups, if strong justification and 
the administrative record demonstrate that, absent emergency 
regulations, substantial harm will occur to one or more segments of the 
fishing industry. Controversial actions with serious economic effects, 
except under extraordinary circumstances, should be done through normal 
notice-and-comment rulemaking.
    The preparation or approval of management actions under the 
emergency provisions of section 305(c) of the Magnuson-Stevens Act 
should be limited to extremely urgent, special circumstances where 
substantial harm to or disruption of the resource, fishery, or 
community would be caused in the time it would take to follow standard 
rulemaking procedures. An emergency action may not be based on 
administrative inaction to solve a long-recognized problem. In order to 
approve an emergency rule, the Secretary must have an administrative 
record justifying emergency regulatory action and demonstrating its 
compliance with the national standards. In addition, the preamble to 
the emergency rule should indicate what measures could be taken

[[Page 44422]]

or what alternative measures will be considered to effect a permanent 
solution to the problem addressed by the emergency rule.
    The process of implementing emergency regulations limits 
substantially the public participation in rulemaking that Congress 
intended under the Magnuson-Stevens Act and the Administrative 
Procedure Act. The Councils and the Secretary must, whenever possible, 
afford the full scope of public participation in rulemaking. In 
addition, an emergency rule may delay the review of non-emergency 
rules, because the emergency rule takes precedence. Clearly, an 
emergency action should not be a routine event.

Guidelines

    NMFS provides the following guidelines for the Councils to use in 
determining whether an emergency exists:

Emergency Criteria

    For the purpose of section 305(c) of the Magnuson-Stevens Act, the 
phrase ``an emergency exists involving any fishery'' is defined as a 
situation that:
    (1) Results from recent, unforeseen events or recently discovered 
circumstances; and
    (2) Presents serious conservation or management problems in the 
fishery; and
    (3) Can be addressed through emergency regulations for which the 
immediate benefits outweigh the value of advance notice, public 
comment, and deliberative consideration of the impacts on participants 
to the same extent as would be expected under the normal rulemaking 
process.

Emergency Justification

    If the time it would take to complete notice-and-comment rulemaking 
would result in substantial damage or loss to a living marine resource, 
habitat, fishery, industry participants or communities, or substantial 
adverse effect to the public health, emergency action might be 
justified under one or more of the following situations:
    (1) Ecological--(A) to prevent overfishing as defined in an FMP, or 
as defined by the Secretary in the absence of an FMP, or (B) to prevent 
other serious damage to the fishery resource or habitat; or
    (2) Economic--to prevent significant direct economic loss or to 
preserve a significant economic opportunity that otherwise might be 
foregone; or
    (3) Social--to prevent significant community impacts or conflict 
between user groups; or
    (4) Public health--to prevent significant adverse effects to health 
of participants in a fishery or to the consumers of seafood products.

    Dated: August 14, 1997.
Gary C. Matlock,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 97-22094 Filed 8-20-97; 8:45 am]
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