[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] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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] BILLING CODE 3510-22-F