[Federal Register Volume 60, Number 22 (Thursday, February 2, 1995)]
[Rules and Regulations]
[Pages 6448-6451]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2606]



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DEPARTMENT OF COMMERCE
50 CFR Part 676

[Docket No. 950123023-5023-01; I.D. 010995E]
RIN 0648-AH38


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: Interim final rule; request for comments.

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SUMMARY: This interim final rule amends the regulations implementing 
the determinations and appeals procedures for limited access management 
of Federal fisheries in and off of Alaska and amends regulations 
implementing the individual fishing quota (IFQ) limited access program 
with respect to establishment of quota share (QS) pools for each IFQ 
regulatory area. The changes made to the determinations and appeals 
procedures reduce the current two-stage appeals procedure to a single-
step process, and reduce the length of time periods for certain 
appeals-related actions. The changes made to the establishment of QS 
pools allow for the addition of catch history that is in dispute and 
being appealed. These changes are necessary to avoid excessive delays 
in deciding appeals and to allow the timely issuance of IFQ resulting 
from disputed catch history that was successfully appealed. The 
intended effect of this action is to shorten the appeals process while 
providing reasonable time for applicants to file, and to provide IFQ 
resulting from disputed catch history to persons who may have an appeal 
successfully resolved after the IFQ calculation date.

DATES: Interim rule effective January 30, 1995. Comments must be 
received at the following address no later than March 6, 1995.

ADDRESSES: Comments on the interim final rule may be sent to Ronald J. 
Berg, Chief, Fisheries Management Division, Alaska Region, NMFS, 709 
West 9th Street, Juneau, AK 99801, or P.O. Box 21668, Juneau, AK 99802-
1668, Attn: Lori J. Gravel. Copies of the regulatory impact review 
prepared for this action may be obtained also from this address.

FOR FURTHER INFORMATION CONTACT: John Lepore, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

    The IFQ program is a regulatory regime developed by the North 
Pacific Fishery Management Council to promote the conservation and 
management of Pacific halibut (Hippoglossus stenolepis) and sablefish 
(Anoplopoma fimbria) fixed gear fisheries in the Gulf of Alaska and the 
Bering Sea and Aleutian Islands Area under Federal jurisdiction. 
Further information about the IFQ program is contained in the preamble 
to the final implementing regulations published November 9, 1993 (58 FR 
59375). The commercial harvesting of halibut and sablefish under the 
IFQ program is scheduled to begin in the spring of 1995. The IFQ 
program is implemented by regulations at 50 CFR part 676.
    The IFQ implementing regulations provide for the assignment of QS 
to qualified persons. The amount of QS assigned directly reflects a 
qualified person's verified catch history during specified years. The 
allocation of IFQ represents a privilege to harvest a specified amount 
of halibut or sablefish during one fishing year. The amount of IFQ 
allocated to any person by area is calculated annually on January 31 
generally as the product of the total allowable catch available for 
harvest by fixed gear and the persons's QS divided by the QS pool for 
the area (50 CFR 676.20(f)). The QS pool for an area is the sum of all 
QS in that area for a species (50 CFR 676.20(b)).

Changes to the Determinations and Appeals Procedures

    Final rules implementing the appeals procedure for limited access 
fisheries management of Federal fisheries in and off of Alaska became 
effective July 1, 1994 (59 FR 28281, June 1, 1994). A detailed 
explanation of the procedure for appealing initial administrative 
determinations appears in the preamble of the notice of proposed 
rulemaking published February 9, 1994 (59 FR 5979). Three changes to 
the final rules have been identified by NMFS as necessary to improve 
the efficiency of the appeals process. These changes:
    1. Eliminate applicants' right to appeal an appellate officer's 
decision to the NMFS Director, Alaska Region (Regional Director), but 
retain the Regional Director's discretionary authority to renew, 
modify, reverse or remand any such decision;
    2. Reduce the time period for filing an appeal of an initial 
administrative determination from 90 Federal business days to 60 
calendar days after the date the determination was made; and
    3. Reduce the time period before an appellate officer's decision 
becomes effective from 45 Federal business days to 30 calendar days 
after the date the decision is issued, unless, prior to that time, the 
Regional Director alters or modifies the decision, issues an order 
staying the effectiveness of the decision pending review, or 
accelerates the effectiveness date.
    Subject to later revision based on public comments received, these 
actions are necessary to avoid excessively delayed appeals decisions. 
It is now apparent that the timely resolution of appeals to the 
Regional Director will not be possible. The changes discussed above 
will facilitate a more timely appeals process. The original time 
periods were excessively long in view of the number of appeals that are 
now expected, and resolving these appeals more expeditiously will 
benefit the fishermen involved. The majority of the initial 
administrative decisions to deny QS are due to be issued before January 
31, 1995, the date of the required calculation of IFQ for the 1995 
fishing season.
    The first change is the elimination of the right to appeal an 
appellate officer's decision to the Regional Director. The Regional 
Director's discretionary authority to review and modify, reverse, or 
remand any appellate officer's decision is retained. This effectively 
changes the original two-stage appeals procedure into a single-step 
process. The original procedure provided an applicant a first-stage 
opportunity to 

[[Page 6449]]
appeal an initial administrative determination to an appellate officer, 
and a second-stage opportunity to appeal the appellate officer's 
decision to the Regional Director. This regulatory amendment eliminates 
the second stage appeal; however, the Regional Director will routinely 
review appellate officers' decisions, and may reverse, modify, or 
remand these decisions for further consideration. If the appellate 
officer's decision is modified or reversed, the Regional Director will 
issue a written decision explaining the reasons for this action. The 
appellate officer's decision, unless acted on by the Regional Director, 
will be the final agency action for purposes of judicial review 30 days 
after issuance.
    The second change is a substantial reduction of the time period 
within which an appellant may file an appeal. The purpose of this 
change is to expedite the appeals process, as explained above. The time 
period within which an appellant may file a written appeal of an 
initial administrative determination is changed from 90 Federal 
business days to 60 calendar days after the date the determination is 
made. This change effectively reduces the appeal filing opportunity 
from about 4 months to about 2 months. Saturdays, Sundays, and Federal 
holidays would be counted as part of the 60-day time period unless the 
last day of the 60-day period falls on a Saturday, Sunday, or Federal 
holiday. In this event, the period is extended to the close of business 
on the next business day.
    The original appeals filing period of 90 days, not including 
weekends and holidays, was intended to provide an appellant with a 
liberal period within which to prepare an appeal. NOAA has determined 
that this period is unnecessarily long and would exacerbate expected 
delay in the resolution of appeals. Resolution of disputes involving 
more than one applicant but possibly the same vessel or catch data 
could be facilitated by resolving related appeals at the same time. 
Without this change, one person could file a prompt appeal while 
another could delay filing for up to 4 months, thereby preventing the 
prompt issuance of disputed IFQ. A 60-day period, including weekends 
and holidays except on the last day of the period, would provide 
appellants with adequate time to prepare and file appeals, and would 
benefit all affected parties by accelerating the appeals process.
    The third change is a shortening of the period of delayed 
effectiveness of an appellate officer's decision from 45 Federal 
business days to 30 calendar days. The purpose of this change also is 
to speed achievement of final agency action on appeals. A 30-calendar-
day period is adequate for the Regional Director to review an appellate 
officer's decision and take any action deemed necessary, such as a 
stay. Unless acted on by the Regional Director, an appellate officer's 
decision will be the final agency action subject to judicial review at 
the end of the 30-calendar-day delayed effectiveness period.

Changes to the Establishment of Quota Share Pools

    Regulations pertaining to the calculation of QS and the QS pool for 
an area and regulations for appealing initial administrative 
determinations made regarding those calculations are found at 50 CFR 
676.20 and 676.25, respectively. This action changes Sec. 676.20(d)(3) 
to establish a reserve within the QS pool of each IFQ regulatory area; 
otherwise, contested catch history would not have been included in the 
QS pool. Any person who does not have QS included in the QS pool on 
January 31 of any year will not be allocated IFQ for that year and will 
not be able to participate in the IFQ fisheries in that year.
    A problem of particular concern in the initial year of the IFQ 
program is that numerous appeals involve multiple parties. There may be 
disputes, for example, over who owned or leased a vessel that made 
qualified landings but not over the amount of those landings. 
Resolution of such appeals during the 1995 IFQ fishing season for 
halibut and sablefish would not allow the prevailing party to receive 
IFQ and use it during the season.
    To correct this problem a QS pool reserve is established for catch 
history that would otherwise be withheld from the QS pool due to the 
pendency, at the time IFQ is determined, of an appeal involving 
contested catch history, vessel ownership or vessel lease data by two 
or more QS applicants. NMFS will set aside QS in the reserve pool for 
eventual award to specific appellants, and will include this QS in the 
total QS pool for purposes of determining the amount of IFQ to be 
assigned to each holder of QS.
    This action addresses the problem that appeals, which involve 
multi-party contests over verified fish landings during the base 
period, could unjustly result in failure to allocate IFQ for the 1995 
fishing season to applicants having made timely and sufficient 
application for participation in the IFQ Program. This procedure (i.e., 
placing contested QS in a reserve) is for use only in situations in 
which the eligibility for qualifying pounds has been established but 
the appropriate party to be issued the QS, and the resulting IFQ, is 
pending decision.
    Appeals may involve disputes between the appellant and NMFS over 
the amount of catch history that should be counted for purposes of 
calculating QS or may involve disputes between two or more persons over 
who should be assigned QS that results from catch history, vessel 
ownership, or lease history. Although any appeal would prevent NMFS 
from issuing contested QS, the agency could calculate the approximate 
amount of QS that would be added to the QS pool before an appeal 
involving two or more persons is resolved if the amount of catch 
history is not the issue being appealed but rather the issue is who 
should receive the QS that results from the catch history. In such 
cases, the undisputed catch history could be placed in a reserve as 
part of the QS pool for IFQ calculation purposes but no QS or IFQ would 
be assigned until after the agency determines the appropriate person or 
entity to receive the QS. The purpose of such a reserve is to provide 
for an immediate assignment of QS and IFQ upon final agency action on 
such multi-party appeals. This would allow the person receiving such 
IFQ to begin using it to harvest halibut or sablefish during the 
remainder of the IFQ fishing season following the decision. 
Alternatively, IFQ stemming from such disputed QS would not be issued 
until the year following final agency action.

Waiver of Notice and Comment and Delayed Effectiveness Period

    This action must be made effective immediately for its benefits to 
be realized by the public. Pursuant to 5 U.S.C. 553(b)(B), a rule may 
be issued without prior notice and opportunity for public comment if 
providing such would be impracticable, unnecessary, or contrary to the 
public interest. Pursuant to 5 U.S.C. 553(d)(3), a rule may be made 
effective prior to 30 days after its issuance for good cause found and 
published with the rule.
    As explained earlier, both the two-tiered appeals process and the 
excessively long period in which an appeal may be filed under the 
current system cause unnecessary delays. These delays are harmful to 
the public, because they delay the opportunity for a successful 
appellant to use any fishing privileges resulting from an appeal. 
Delaying promulgation of this rule to allow for prior notice and 
opportunity for public comment and delaying its effective date for 30 
days would be contrary to the public interest in that the 

[[Page 6450]]
delays sought to be reduced or eliminated by this action would continue 
to occur for initial administrative determinations of QS and initial 
determinations by appellant officers issued during notice-and-comment 
rulemaking, including any period of delayed effective date.
    If this rule is immediately issued and made effective upon filing 
with the Office of the Federal Register, only those relatively few 
applicants for whom an initial administrative determination of QS has 
been made would be entitled to the previous 4-month time frame in which 
to file an appeal and only those very few appellants for whom an 
appellate officer has already issued a decision would be entitled to an 
appeal to the Regional Director. For all others the harmful delay to 
the public which this rule seeks to eliminate would be eliminated. 
Accordingly, for the reason set forth above, the Assistant 
Administrator finds good cause to dispense with prior notice and 
opportunity for public comment and to make the rule immediately 
effective upon filing with the Office of Federal Register.
    Similarly, the establishment of QS pool reserves must be effective 
immediately. By regulation, the calculation to determine how much IFQ 
will be issued for the 1995 fishing season occurs on January 31, 1995. 
If QS is not in the pool as of this determination date, the resulting 
IFQ will not be issued. Providing QS pool reserves for contested QS 
will benefit successful appellants by allowing them to obtain IFQ that 
is calculated but not issued pending resolution of an appeal. Without 
this action, a successful appellant will have to wait until the 
following season to receive IFQ if the QS involved in the appeal is 
added to the QS pool after the determination date. As such, this rule 
must be effective on or before January 31, 1995, for successful 
appellants to fish during the 1995 season. Given the current time-
frame, any delay in the effectiveness of this rule will nullify the 
benefit. Nullifying this benefit will be contrary to the public 
interest and thereby constitutes good cause for dispensing with prior 
notice and opportunity for public comment and for making the rule 
immediately effective.

Classification

    A regulatory impact review/final regulatory flexibility analysis 
(RIR/FRFA) was prepared for the IFQ limited access program of which the 
original appeals and determinations are a part. The RIR/FRFA is 
contained in 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. This document is available 
(see ADDRESSES).
    This final rule makes minor revisions to the regulations affecting 
the filing of an appeal of an initial administrative determination. No 
new information is collected, but the period of time within which 
affected persons would have to submit information is decreased. The 
estimated response time for filing a written appeal under the IFQ 
program is 4 hours. This collection of information has been approved by 
the Office of Management and Budget, OMB control number 0648-0272 
(regarding IFQs for Pacific halibut and sablefish).
    This rule has been determined to be not significant for purposes of 
Executive Order 12866.

List of Subjects in 50 CFR Part 676

    Fisheries, Reporting and recordkeeping requirements.

    Dated: January 30, 1995.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 676 is amended 
to read as follows:

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

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

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

    2. In Sec. 676.20, paragraph (d)(3) is revised and paragraph (e) is 
removed and reserved as follows:


Sec. 676.20  Individual allocations.

* * * * *
    (d) * * *
    (3) Catch history, vessel ownership, or lease data that cannot be 
verified by the Regional Director, following the procedure described in 
paragraph (d)(1) of this section, will not qualify for QS. An initial 
determination denying QS on the grounds that claimed catch history, 
vessel ownership or lease data were not verified may be appealed 
following the procedure described in Sec. 676.25 of this part. Quota 
share reflecting catch history, vessel ownership, or lease data that 
are contested between two or more applicants, at least one of which is 
likely to qualify for QS when the dispute is resolved, will be assigned 
to a reserve that will be considered part of the QS pool for the 
appropriate IFQ regulatory area. Any QS and IFQ that results from 
agency action resolving the dispute will be assigned to the prevailing 
applicant(s) pursuant to paragraphs (b), (c) and (f) of this section. 
If the assigned IFQ for the 1995 fishing season becomes moot by the 
passage of time needed to resolve the dispute, the assignment of QS and 
IFQ for subsequent fishing seasons will be unaffected.
    (e) [Reserved]
* * * * *
    3. In Sec. 676.25, paragraphs (a), (b), (d)(1), (d)(2), (g) 
introductory text, (g)(1), (g)(2), (k), (m)(4), (n)(8), and (o) are 
revised to read as follows:


Sec. 676.25  Determinations and appeals.

    (a) General. This section describes the procedure for appealing 
initial administrative determinations made under this part.
    (b) Who may appeal. Any person whose interest is directly and 
adversely affected by an initial administrative determination may file 
a written appeal. For purposes of this section, such persons will be 
referred to as ``applicant'' or ``appellant''.
* * * * *
    (d) Time periods for appeals and date of filing. (1) If an 
applicant appeals an initial administrative determination, the appeal 
must be filed not later than 60 days after the date the determination 
is issued.
    (2) The time period within which an appeal may be filed begins to 
run on the date the initial administrative determination is issued. If 
the last day of the time period is a Saturday, Sunday, or Federal 
holiday, the time period will be extended to the close of business on 
the next business day.
* * * * *
    (g) Decision Whether to Order a Hearing. The appellate officer will 
review the applicant's appeal and request for hearing, and has 
discretion to proceed as follows:
    (1) Deny the appeal;
    (2) Issue a decision on the merits of the appeal if the record 
contains sufficient information on which to reach final judgment; or
* * * * *
    (k) Appellate Officers' Decisions. The appellate officer will close 
the record and issue a decision after determining that there is 
sufficient information to render a decision on the record of the 
proceedings and that all procedural requirements have been met. The 
decision must be based solely on the record of the proceedings. Except 
as provided in paragraph (o) of this 

[[Page 6451]]
section, an appellate officer's decision takes effect 30 days after it 
is issued and upon taking effect is the final agency action for 
purposes of judicial review.
* * * * *
    (m) * * *
    (4) The appellate officer will close the record and issue a 
decision after determining that the information on the record is 
sufficient to render a decision.
    (n) * * *
    (8) The appellate officer will close the record and issue a 
decision after determining that the information on the record is 
sufficient to render a decision.
    (o) Review by the Regional Director. An appellate officer's 
decision is subject to review by the Regional Director, as provided in 
this paragraph.
    (1) The Regional Director may affirm, reverse, modify, or remand 
the appellate officer's decision before the 30-day effective date of 
the decision provided in paragraph (k) of this section. The Regional 
Director may take any of these actions on or after the 30-day effective 
date by issuing a stay of the decision before the 30-day effective 
date. An action taken under paragraph (o)(1) of this section takes 
effect immediately.
    (2) The Regional Director must provide a written explanation why an 
appellate officer's decision has been reversed, modified, or remanded.
    (3) The Regional Director must promptly notify the appellant(s) of 
any action taken under paragraph (o) of this section.
    (4) The Regional Director's decision to affirm, reverse, or modify 
an appellate officer's decision is a final agency action for purposes 
of judicial review.

[FR Doc. 95-2606 Filed 1-30-95; 2:47 pm]
BILLING CODE 3510-22-F