[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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