[Federal Register Volume 59, Number 104 (Wednesday, June 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13222]


[[Page Unknown]]

[Federal Register: June 1, 1994]


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DEPARTMENT OF COMMERCE
50 CFR Part 676

[Docket No. 940103-4154; I.D. 122893B]
RIN 0648-AG21

 

Limited Access Management of Federal Fisheries In and Off of 
Alaska; Determinations and Appeals

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement the determinations 
and appeals procedures for the limited access management of Federal 
fisheries in and off of Alaska. This action is necessary to establish 
who may appeal initial administrative determinations; establish what 
must be included in appeals; establish procedures regarding acceptance 
of appeals; establish the authority of, and a procedure for 
disqualifying, appellate officers; establish evidentiary procedures and 
the hearing process; establish procedures for post-hearing decisions; 
and establish appeals procedures to the Director, Alaska Region, NMFS 
(Regional Director). The intended effect of this action is to provide 
an orderly process for appeals from initial administrative 
determinations made by NMFS management staff and from decisions issued 
by appellate officers under the Individual Fishing Quota (IFQ) program.

EFFECTIVE DATE: July 1, 1994.

ADDRESSES: Copies of this action, and the final environmental impact 
statement/supplementary environmental impact statement (FEIS/SEIS) for 
halibut and sablefish IFQ programs, respectively, may be obtained from 
the North Pacific Fishery Management Council (Council), P.O. Box 
103136, Anchorage, AK 99510.
    Appeals must be mailed to NMFS, Restricted Access Management, P.O. 
Box 21668, Juneau, AK 99802-1668, or delivered to NMFS, Federal 
Building, Fourth Floor, 709 West 9th Street, Juneau, AK 99801.

FOR FURTHER INFORMATION CONTACT: John Lepore, Fisheries Regulations 
Specialist, Alaska Region, NMFS, at 907-586-7228.

Supplementary Information:

Background

    This action implements the determinations and appeals process for 
the IFQ program, a regulatory regime intended by the Council to promote 
the conservation and management of halibut and sablefish resources, and 
to further the objectives of the Magnuson Fishery Conservation and 
Management Act (Magnuson Act) and the Northern Pacific Halibut Act 
(Halibut Act).
    Beginning in 1995, the Alaskan fisheries using fixed gear for 
Pacific halibut (Hippoglossus stenolepis) and sablefish (Anoplopoma 
fimbria) in the areas defined in 50 CFR 676.10(b) and (c) will be 
managed in accordance with the IFQ regulations codified at 50 CFR part 
676. Further information on the implementation of this program, and the 
rationale in support of it, is contained in the preamble to the final 
rule establishing the IFQ limited access program published on November 
9, 1993 (58 FR 59375).
    This action provides procedures for appeals for determinations 
under 50 CFR part 676. Persons may appeal initial administrative 
determinations made by NMFS management staff and appellate officers' 
decisions. These two levels of appeal will provide any person whose 
interests are directly and adversely affected by a determination or 
decision, a reasonable opportunity to present objections and be heard.
    The proposed rule for this action was published on February 9, 1994 
(59 FR 5979), and the public comment period ended on March 28, 1994. No 
public comment was received on the proposed rule.

Initial Administrative Determinations

    Initial administrative determinations are the findings of NMFS 
staff on eligibility for, and the transfer and use of, quota share (QS) 
and IFQ under the IFQ program. Initial administrative determinations 
are made after evaluating all evidence provided by applicants, 
comparing that evidence with the data on the official record, and 
making a determination based on that comparison. Initial administrative 
determinations become final agency actions within 90 days unless 
appealed under the procedure described below.
    Examples of initial administrative determinations are: (1) Whether 
applicants have submitted sufficient documentation to demonstrate they 
are qualified persons, or their successors-in-interest, as defined in 
50 CFR 676.20(a)(1); (2) whether to grant initial QS allocations based 
on the documentation provided in applications; (3) whether 
documentation submitted with applications, or documentation requested 
by NMFS staff, support the claims made for initial QS allocations; and 
(4) whether to grant initial QS allocations based on specific vessel 
categories and fishery statistical areas.
    NMFS staff may request additional documentation from applicants to 
support their applications. Applicants will have 90 days to respond to 
these requests. Requests for additional documentation provide 
applicants with an opportunity to submit additional documentation for 
claims not consistent with data contained in NMFS files. Requests for 
additional documentation cannot be the subject of administrative 
appeals. Appealable determinations will not occur until: (1) Applicants 
respond to the request by providing additional information within the 
time period; (2) applicants waive the right to respond to the request 
for additional evidence, and instead request that a determination be 
made on the application in its current form; or (3) applicants do not 
respond within the time period.

Appeals

    Persons whose interests are directly and adversely affected by 
initial administrative determinations or appellate officers' decisions 
can appeal those determinations or decisions. This action provides a 
two-tier appeals process (i.e., appeal of an initial administrative 
determination to an appellate officer and appeal of an appellate 
officer's decision to the Regional Director). This process provides 
applicants with a reasonable opportunity to be heard concerning agency 
actions.
    Appeals must be in writing. The writing requirement protects the 
applicant (now appellant) by providing a written record of the issues 
appealed and ensuring that the appeal becomes part of the record. 
Appeals must also be in original form; NMFS will not accept appeals 
sent by electronic transmission (telefacsimile). Appeals may be either 
mailed or personally delivered to NMFS. Appeals submitted by mail may 
be sent certified, return receipt requested, to provide the appellant 
with evidence of mailing the appeal in case it becomes lost or 
destroyed.
    Addresses of record will be established from the addresses used by 
persons on their first correspondence (see ADDRESSES). For most 
persons, this first correspondence will be their request for an 
application for QS allocation. Any changes to the address of record 
must be promptly provided to NMFS in writing. Notification of address 
changes to NMFS is the responsibility of the applicants, since they are 
in the best position to have knowledge of such changes. Supplying 
address changes ensures that NMFS has an accurate and current address 
for correspondence.
    Eligibility to appeal begins on either the date initial 
determinations are made or on the date decisions are issued. Appeals 
must be filed with NMFS within 90 days of the date an initial 
administrative determination is made or within 45 days of the date an 
appellate officer's decision is issued.
    Appellants are required to submit a full written statement in 
support of the appeal, including a concise statement of the reasons why 
the initial administrative determination has a direct and adverse 
effect on the appellant and should be reversed or modified. The 
appellate officer may request additional information from the appellant 
to resolve the appeal. Appeals merely challenging the IFQ regulations 
will not be accepted.
    In addition to the written statement of appeal, an appellant may 
request, in writing, a hearing on one or more issues material to the 
appeal. A request for a hearing must be accompanied by a concise 
statement raising a genuine and substantial issue of adjudicative fact 
for resolution and listing available and specifically identified 
reliable evidence upon which the factual issue can be resolved. A 
hearing will not be held on issues of policy or law, or upon the basis 
of mere allegations, denials, or general descriptions of positions and 
contentions.
    The appellant could, and is encouraged to, supply evidence 
supporting the statement of appeal and request for a hearing. Providing 
a complete and timely appeal with sufficient evidence increases the 
potential that the appellate officer can make a decision in the 
appellant's favor without further proceedings. If the appeal is 
incomplete, untimely, or not sufficiently supported, the appellate 
officer will deny the appeal, a decision that can be appealed to the 
Regional Director.

Hearings

    Written or oral hearings can be held to resolve genuine and 
substantial issues of adjudicative fact. The decision of whether to 
hold a written or oral hearing will be solely within the appellate 
officer's discretion and cannot be appealed to the Regional Director.
    The appellate officer can order written hearings on a determination 
that the issues presented in an appeal are resolvable by allowing the 
appellant an opportunity to respond through written submissions. The 
written hearing process is the preferred method of resolving issues, 
unless the appellate officer determines that an oral hearing is 
necessary. The appellate officer can decide to order an oral hearing on 
one or more issues after beginning the written hearing process.
    On ordering a written hearing, the appellate officer will provide 
the appellant with notice that a written hearing is ordered, provide 
the appellant with a statement of issues to be determined, and provide 
the appellant with 30 days to file a written response. The written 
response can include affidavits from the appellant or other witnesses. 
The statement of issues will provide the appellant with information 
concerning the issues to be determined by the appellate officer. This 
statement will help focus the appellant on pertinent, rather than 
extraneous, issues.
    The appellate officer will order an oral hearing on a determination 
that an oral hearing would be necessary to resolve one or more issues 
presented in the appeal. On ordering an oral hearing, the appellate 
officer will provide the appellant with notice that an oral hearing is 
ordered, provide the appellant with a statement of issues to be 
determined by the hearing process, and provide the appellant with 
notice, at least 30 days in advance, of the place, date, and time of 
the oral hearing. Hearings will be held in Juneau, AK at the prescribed 
date and time, unless the appellate officer determines, based upon good 
cause shown, that a different place, date, or time would better serve 
the interests of justice. The appellate officer will have authority to 
conduct hearings in an orderly manner as described in Sec. 676.25(i).
    This action also allows appellate officers to order pre-hearing 
conferences. The pre-hearing conference can be used to simplify the 
issues, obtain stipulations and admissions of facts, and discuss the 
possibility of settlement without further proceedings. The formal rules 
of evidence will not apply.
    Appellate officers will withdraw from an appeal at any time they 
deem themselves disqualified. This may occur because of financial 
connection to the case, ex parte communications, or some other personal 
bias. In addition, appellants can request withdrawal of the appellate 
officer. An appellate officer may withdraw upon the appellant's motion 
if made prior to the issuance of a decision and the appellant 
demonstrates personal bias or other basis for disqualification. An 
appellate officer's denial of a motion to withdraw will be part of the 
record.
    At the conclusion of the hearing, whether oral or written, the 
appellate officer will close the record and issue a decision. The 
appellate officer's decision will be based solely on the record of the 
proceedings. This ensures that the appellant will have the opportunity 
to review all information used in the decision-making process. This 
requirement also establishes a record for review on appeal to the 
Regional Director.

Appeal to the Regional Director

    An appellant whose interests are directly and adversely affected by 
an appellate officer's decision will have an opportunity to appeal that 
decision to the Regional Director. A written appeal to the Regional 
Director must be filed within 45 days of the issuance of the appellate 
officer's decision. If the appellate officer's decision is not appealed 
within this 45-day period, it becomes effective and is considered a 
final agency action. An appeal to the Regional Director must clearly 
and concisely state the reasons why the appellate officer's decision 
has a direct and adverse effect on the appellant and why it should be 
modified, reversed, or remanded.
    The Regional Director will resolve the appeal based solely on the 
record. Another hearing at this stage of the process is unnecessary, 
because all evidence and testimony for the proper disposition of issues 
should have been presented to the appellate officer and will be in the 
record. The appellate officer's decision will be affirmed by either the 
Regional Director's denying the appeal or the Regional Director's 
preparing an order affirming the appellate officer's decision. The 
Regional Director can deny appeals that were submitted beyond the 45-
day period or appeals that did not articulate sufficient basis to 
modify, remand, or reverse the appellate officer's decision. The 
Regional Director can also order that an appellate officer's decision 
be modified or reversed, or remanded to an appellate officer for 
further proceedings consistent with the Regional Director's decision. 
In all cases, the Regional Director will issue a written decision 
explaining the reasons for the determination. Unless a remand is 
ordered, a decision by the Regional Director is a final agency action 
subject to judicial review.

Classification

    A regulatory impact review/final regulatory flexibility analysis 
(RIR/FRFA) was prepared for the IFQ limited access program for which 
these determinations and appeals regulations are a part. The Final 
Environmental Impact Statement for Amendment 15 to the Fishery 
Management Plan (FMP) for the Groundfish Fisheries of the Bering Sea 
and Aleutian Islands Area, and for Amendment 20 to the FMP for 
Groundfish of the Gulf of Alaska, the document that contains the RIR/
FRFA, is available (see ADDRESSES).
    This final rule contains a collection of information requirement 
subject to the Paperwork Reduction Act. The estimated response time for 
the collection of information required to file an appeal to a QS 
application is 4 hours. The collection of information has been approved 
by the Office of Management and Budget, OMB control numbers 0648-0272 
(IFQs for Pacific halibut and Sablefish in the Alaska Fisheries) and 
0648-0269 (Western Alaska CDQ Program).
    This final rule has been determined to be not significant for 
purposes of Equal Opportunity 12866.

List of Subjects in 50 CFR Part 676

    Fisheries, Reporting and recordkeeping requirements.

    Dated: May 25, 1994.
Charles Karnella,
Acting Program Management Officer, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 676 is amended 
as follows:

PART 676--LIMITED ACCESS MANAGEMENT OF FEDERAL FISHERIES IN AND OFF 
OF ALASKA

    1. The authority citation for 50 CFR part 676 continues to read as 
follows:

    Authority: 16 U.S.C. 773 et seq. and 1801 et seq.

    2. In Sec. 676.25, the text is added to read as follows:


Sec. 676.25  Determinations and appeals.

    (a) General. This section describes the procedure for appealing 
initial administrative determinations and appellate officers' decisions 
made under this part.
    (b) Who may appeal. Any person whose interest is directly and 
adversely affected by either an initial administrative determination or 
an appellate officer's decision may file a written appeal. For purposes 
of this section, such persons will be referred to as ``applicant'' or 
``appellant''.
    (c) Submission of appeals. Appeals must be in writing and must be 
submitted in original form to NMFS, P.O. Box 21668, Juneau, AK 99802; 
or to NMFS, 709 W. 9th, Room 413, Juneau, AK 99801. Appeals transmitted 
by electronic means will not be accepted.
    (d) Time periods for appeals and date of filing. (1) Appeals must 
be filed within the following time periods:
    (i) Appeals from initial administrative determinations must be 
filed within 90 days of the date the determination was made; and
    (ii) Appeals from appellate officers' decisions must be filed 
within 45 days of the date the decision was issued.
    (2) The time periods within which appeals must be filed begin to 
run on the date of issuance of the initial administrative determination 
or appellate officer's decision that gives rise to the appeal. 
Saturdays, Sundays, and Federal holidays will not be included in 
computing such time periods, which conclude at the close of business of 
the final enumerated day, except that when such time periods conclude 
on a Saturday, Sunday, or Federal holiday, such periods will be 
extended to the close of business on the next business day.
    (3) For purposes of this section, the date of filing is the date 
the appeal is received by NMFS.
    (4) All other time periods established under this section will be 
computed in a manner consistent with the provisions of paragraphs 
(d)(2) and (3) of this section.
    (e) Address of record. NMFS will establish as the address of record 
the address used by the applicant in initial correspondence to NMFS, 
Restricted Access Management, after the application period has begun. 
Notices of all actions affecting the applicant after establishing an 
address of record will be mailed to that address unless the applicant 
provides NMFS, in writing, with any changes to that address. NMFS bears 
no responsibility if a notice is sent to the address of record and is 
not received because the applicant's actual address has changed without 
notification to NMFS.
    (f) Statement of reasons for appeals from initial determinations. 
Applicants must timely submit a full written statement in support of 
the appeal, including a concise statement of the reasons why the 
initial administrative determination has a direct and adverse effect on 
the applicant and should be reversed or modified. If the applicant 
requests a hearing on any issue presented in the appeal, such request 
for hearing must be accompanied by a concise written statement raising 
genuine and substantial issues of adjudicative fact for resolution and 
a list of available and specifically identified reliable evidence upon 
which the factual issues can be resolved. The appellate officer will 
limit his/her review to the issues stated in the appeal; all issues not 
set out in the appeal will be waived.
    (g) Decision Whether to Order a Hearing. The appellate officer will 
review the applicant's appeal and request for hearing and, at his/her 
sole discretion, proceed as follows:
    (1) Deny the appeal. A decision to deny the appeal may be appealed 
to the Regional Director as provided in paragraph (o) of this section;
    (2) Issue a decision on the merits of the appeal if the record 
contains sufficient information on which to reach final judgment. A 
decision on the merits of the appeal may be appealed to the Regional 
Director as provided in paragraph (o) of this section; or
    (3) Order that a hearing be conducted. The appellate officer may so 
order only if the appeal demonstrates the following:
    (i) There is a genuine and substantial issue of adjudicative fact 
for resolution at a hearing. A hearing will not be ordered on issues of 
policy or law;
    (ii) The factual issue can be resolved by available and 
specifically identified reliable evidence. A hearing will not be 
ordered on the basis of mere allegations or denials or general 
descriptions of positions and contentions;
    (iii) The evidence described in the request for hearing, if 
established at hearing, would be adequate to justify resolution of the 
factual issue in the way sought by the applicant. A hearing will not be 
ordered if the evidence described is insufficient to justify the 
factual determination sought, even if accurate; and
    (iv) Resolution of the factual issue in the way sought by the 
applicant is adequate to justify the action requested. A hearing will 
not be ordered on factual issues that are not determinative with 
respect to the action requested.
    (h) Types of Hearings. If the appellate officer determines that a 
hearing should be held to resolve one or more genuine and substantial 
issues of adjudicative fact, he/she may order:
    (1) A written hearing, as provided in paragraph (m) of this 
section; or
    (2) An oral hearing, as provided in paragraph (n) of this section.
    (i) Authority of the Appellate Officer. The appellate officer is 
vested with general authority to conduct all hearings in an orderly 
manner, including the authority to:
    (1) Administer oaths;
    (2) Call and question witnesses; and
    (3) Issue a written decision based on the record.
    (j) Evidence. All evidence that is relevant, material, reliable, 
and probative may be included in the record. Formal rules of evidence 
do not apply to hearings conducted under this section.
    (k) Appellate Officers' Decisions. The appellate officer will close 
the record and issue a decision after he/she determines that there is 
sufficient information on the record of the proceedings and all 
procedural requirements have been met. The decision must be based 
solely on the record of the proceedings. Appellate officers' decisions 
will become effective 45 days after the date the decision is issued, 
unless appellant files a timely appeal to the Regional Director in 
accordance with paragraphs (o)(1) and (2) of this section, or the 
Regional Director orders review of the appellate officer's decision in 
accordance with paragraph (o)(4) of this section.
    (l) Disqualification of an Appellate Officer. (1) The appellate 
officer will withdraw from an appeal at any time he/she deems himself/
herself disqualified.
    (2) The appellate officer may withdraw from an appeal on an 
appellant's motion if:
    (i) The motion is entered prior to the appellate officer's issuance 
of a decision; and
    (ii) The appellant demonstrates that the appellate officer has a 
personal bias or any other basis for disqualification.
    (3) If the appellate officer denies a motion to withdraw, he/she 
will so rule on the record.
    (m) Written Hearing. (1) An appellate officer may order a written 
hearing under paragraph (h)(1) of this section if he/she:
    (i) Orders a hearing as provided in paragraph (g)(3) of this 
section; and
    (ii) Determines that the issues to be resolved at hearing can be 
resolved by allowing the appellant to present written materials to 
support his/her position.
    (2) After ordering a written hearing, the appellate officer will:
    (i) Provide the appellant with notice that a written hearing has 
been ordered;
    (ii) Provide the appellant with a statement of issues to be 
determined at hearing; and
    (iii) Provide the appellant with 30 days to file a written 
response. The appellant may also provide documentary evidence to 
support his/her position. The period to file a written response may be 
extended at the sole discretion of the appellate officer if the 
appellant shows good cause for the extension.
    (3) The appellate officer may, after reviewing the appellant's 
written response and documentary evidence:
    (i) Order that an oral hearing be held, as provided in paragraph 
(h)(2) of this section, to resolve issues that can not be resolved 
through the written hearing process;
    (ii) Request supplementary evidence from the appellant before 
closing the record; or
    (iii) Close the record.
    (4) The appellate officer will close the record and issue a 
decision after he/she determines there is sufficient information on the 
record. This decision will be considered final for purposes of appeal 
to the Regional Director as provided in paragraph (o) of this section.
    (n) Oral hearing. (1) The appellate officer may order an oral 
hearing under paragraphs (h)(2) and (m)(3)(i) of this section if he/
she:
    (i) Orders a hearing as provided in paragraph (g)(3) of this 
section; and
    (ii) Determines that the issues to be resolved at hearing can best 
be resolved through the oral hearing process.
    (2) After ordering an oral hearing, the appellate officer will:
    (i) Provide the appellant with notice that an oral hearing has been 
ordered;
    (ii) Provide the appellant with a statement of issues to be 
determined at hearing; and
    (iii) Provide the appellant with notice, at least 30 days in 
advance, of the place, date, and time of the oral hearing. Oral 
hearings will be held in Juneau, AK at the prescribed date and time, 
unless the appellate officer determines, based upon good cause shown, 
that a different place, date, or time will better serve the interests 
of justice. A continuance of the oral hearing may be ordered at the 
sole discretion of the appellate officer if the appellant shows good 
cause for the continuance.
    (3) The appellate officer may, either at his/her own discretion or 
on the motion of the appellant, order a pre-hearing conference, either 
in person or telephonically, to consider:
    (i) The simplification of issues;
    (ii) The possibility of obtaining stipulations, admissions of 
facts, and agreements to the introduction of documents;
    (iii) The possibility of settlement or other means to facilitate 
resolution of the case; and
    (iv) Such other matters as may aid in the disposition of the 
proceedings.
    (4) The appellate officer must provide the appellant with notice of 
a pre-hearing conference, if one is ordered, at least 30 days in 
advance of the conference. All action taken at the pre-hearing 
conference will be made part of the record.
    (5) At the beginning of the oral hearing, the appellate officer may 
first seek to obtain stipulations as to material facts and the issues 
involved and may state any other issues on which he/she may wish to 
have evidence presented. Issues to be resolved at the hearing will be 
limited to those identified by the appellate officer as provided in 
paragraph (g)(3) of this section. The appellant will then be given an 
opportunity to present his/her case.
    (6) During the oral hearing, the appellant has the right to present 
reliable and material oral or documentary evidence and to conduct such 
cross-examination as may be required in the interests of justice.
    (7) After the conclusion of the oral hearing the appellant may be 
given time by the appellate officer to submit any supplementary 
information that may assist in the resolution of the case.
    (8) The appellate officer will close the record and issue a 
decision on the appeal after he/she determines there is sufficient 
information on the record. This decision will be considered final for 
purposes of appeal to the Regional Director as provided in paragraph 
(o) of this section.
    (o) Appeals to the Regional Director. An appellant may appeal an 
appellate officer's decision to the Regional Director. All such appeals 
must be filed with the Regional Director within the time period 
established in paragraph (d)(1)(ii) of this section.
    (1) An appeal to the Regional Director of an appellate officer's 
decision must be accompanied by a full written statement in support of 
the appeal, including a concise statement of the reasons why the 
appellate officer's decision has a direct and adverse effect on the 
appellant and should be modified, reversed, or remanded.
    (2) The Regional Director may order a review of the appellate 
officer's decision and may issue a decision on review that modifies or 
reverses the appellate officer's decision, or remands that decision to 
the appellate officer for further proceedings consistent with the 
decision on review. The Regional Director's decision will be based 
solely on the record as developed by the appellate officer.
    (3) If the Regional Director denies the appeal, the appellate 
officer's decision is affirmed, and the action is a final agency action 
subject to judicial review under 5 U.S.C. 704.
    (4) Within 45 days of the date the appellate officer's decision is 
issued, the Regional Director may, at his/her own discretion, order 
review of any appellate officer's decision. If the Regional Director 
orders review of an appellate officer's decision, the Regional Director 
must notify the appellant and prepare an order that affirms, modifies, 
reverses, or remands the decision to the appellate officer for further 
proceedings consistent with the decision on review. If the appellate 
officer's decision is modified or reversed, the Regional Director must 
issue a written decision explaining the reasons for his/her 
determination. Unless a remand is ordered, the Regional Director's 
decision is a final agency action subject to judicial review under 5 
U.S.C. 704.

[FR Doc. 94-13222 Filed 5-31-94; 8:45 am]
BILLING CODE 3510-22-P