As there has been confusion — even in upper levels of the Federal Government — as to whether the Secretary of Commerce has authority to raise catch limits on groundfish and other species under the "emergency" provisions of the Magnuson-Stevens Act, Congressman Barney Frank (D-Mass.) asked the Congressional Research Service (CRS) for an opinion.

The Congressman asked CRS to determine the extent of the authority of the Secretary of Commerce to promulgate regulations to address an “emergency”. Specifically, he has asked whether the Secretary's emergency authority includes the authority to promulgate regulations to address economic conditions.

Congressional Research Service Attorney Adam Vann responded — he advised the Congressman that because the statute does not define what constitutes an “emergency” that triggers the Secretary’s emergency authority, and because the legislative history does not shed light on the interpretation of the language, it appears possible that action taken by the Secretary in response to an economic “emergency” could likely withstand judicial review, so long as the Secretary’s determination that the conditions in question constituted an “emergency” was a reasonable one.

According to CRS:

There is no indication in the statute as to what does or does not constitute an “emergency” triggering the authority to issue emergency regulations under Magnuson-Stevens. Furthermore, the decision to issue emergency regulations even if there is a finding that an emergency (or overfishing) exists is a discretionary one. Section 305(c) provides that the Secretary “may promulgate emergency regulations or interim measures necessary to address the emergency or overfishing,” not that the Secretary “shall” or “must” promulgate emergency regulations or interim measures to address the emergency or overfishing. Therefore, the decisionmaking process regarding the issuance of emergency regulations pursuant to Section 305(c) is left to the discretion of the Secretary.

At least one other agency has exercised its own “emergency” rulemaking authority in response to economic conditions. The regulations governing the U.S. Forest Service authorize the Chief and the Associate Chief of the Service to “make the determination that an emergency situation exists.” Such a determination allows for work to begin on a project as soon as that decision is published in the Federal Register. These Forest Service regulations define an “emergency situation” to include “[a] situation on National Forest Service lands … that would result in substantial economic loss to the Federal Government if implementation of the decision were delayed.”

Finally, it should be noted that the National Marine Fisheries Service (the division of the Department of Commerce tasked with stewardship of the nation’s living marine resources and their habitat) has previously attempted to define its emergency rulemaking authority In its revised Policy Guidelines for the Use of Emergency Rules, NMFS listed the justifications for emergency action. Among the categories of “Emergency Justification” is an “Economic” emergency, defined as action “to prevent significant direct economic loss or preserve a significant economic opportunity that otherwise might be foregone.” Our research did not reveal any legal challenges to this characterization of Section 305(c) authority.

Read the memorandum from Congressional Research Service