[Federal Register Volume 60, Number 230 (Thursday, November 30, 1995)]
[Rules and Regulations]
[Pages 61497-61498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29198]
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DEPARTMENT OF COMMERCE
50 CFR Part 676
[Docket No.950123023-5271-02; I.D. 110795E]
RIN 0648-AH38; 0648-AI09
Limited Access Management of Federal Fisheries In and Off of
Alaska; Determinations and Appeals; Individual Fishing Quota Program
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 adopting as final without change
two interim rules that amended regulations implementing the Individual
Fishing Quota (IFQ) Program for Pacific halibut and sablefish fixed
gear fisheries in and off of Alaska.
EFFECTIVE DATE: This rule is effective November 30, 1995.
FOR FURTHER INFORMATION CONTACT: James Hale, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
The IFQ Program is a regulatory regime developed by the North
Pacific Fishery Management Council (Council) to promote the
conservation and management of Pacific halibut (Hippoglossus
stenolepis) and sablefish (Anoplopoma fimbria) stocks in Federal waters
in and off of Alaska. The IFQ Program limits access to Pacific halibut
and sablefish fixed gear fisheries through the annual issuance of IFQ.
Holders of IFQ may harvest their IFQ, specific to species, vessel
category, and regulatory area, any time during the IFQ fishing season.
Further information about the IFQ Program is contained in the preamble
to the final implementing regulations published at 58 FR 59375,
November 9, 1993, and subsequent amendments.
This action makes final several changes to the IFQ implementing
regulations that were originally effected by interim rules. One interim
rule reduced the two-stage appeals procedures to a single-step process,
shortened the length of time required for certain appeals-related
actions, and established a quota shares (QS) reserve to permit the
deferred allocation of IFQ for qualified persons whose QS are in
dispute at the time of annual IFQ allocation. The other interim rule
allowed vessels subject to existing IFQ Program recordkeeping and
observer coverage requirements to fish for IFQ species in regulatory
areas for which persons aboard a vessel hold IFQ less than the total
amount of IFQ species on board. These changes are described below.
Changes to the Determinations and Appeals Procedures
Final rules implementing the appeals procedure for limited access
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 appeared
in the preamble of the notice of proposed rulemaking published at 59 FR
5979 on February 9, 1994. NMFS identified three changes to the final
rules as necessary to improve the efficiency of the appeals process. An
interim rule published at 60 FR 6448, February 2, 1995, effected these
changes, as follows.
1. The first change eliminated applicants' right to appeal an
appellate officer's decision to the Director, Alaska Region, NMFS
(Regional Director), but retained the Regional Director's discretionary
authority to renew, modify, reverse, or remand any such decision. This
effectively changed the original two-stage appeals procedure to a
single-step process. The original procedure provided an applicant a
first-stage opportunity to 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
interim rule eliminated the second-stage appeal; however, the Regional
Director routinely reviews appellate officers' decisions and may
reverse, modify, or remand those decisions for further consideration.
The appellate officer's decision, unless acted on by the Regional
Director, becomes the final agency action for purposes of judicial
review 30 days after issuance.
2. The second change substantially reduced the time period within
which an appellant may file an appeal from 90 Federal business days to
60 calendar days after the date of the initial administrative
determination. The original appeals filing period consisted of 90 days,
not including weekends and holidays. The revised appeals filing period
consists of 60 calendar days unless the last day falls on a weekend or
holiday. The original appeals filing period was intended to provide an
appellant with a liberal period within which to prepare an appeal. NMFS
determined that this period was unnecessarily long and would exacerbate
expected delays in the resolution of appeals. Disputes in which two or
more applicants make claims to the same vessel or catch data should be
resolved at the same time. Without this change, one claimant could file
a prompt appeal while another could delay filing for up to 4 months,
thereby preventing the prompt issuance of disputed IFQ to the rightful
party. The revised period provides appellants with adequate time to
prepare and file appeals, and benefits all affected parties by
accelerating the appeals process.
3. The third change shortened the period of delayed effectiveness
of an appellate officer's decision from 45 Federal business days to 30
calendar days after the date the decision is issued, unless, prior to
that time, the Regional Director modifies the decision, issues an order
staying the effectiveness of the decision pending review, or
accelerates the effectiveness date. This change also accelerated the
agency's final actions on appeals. NMFS determined that 30 calendar
days are adequate for the Regional Director to review an appellate
officer's decision and take any necessary action, such as a stay.
These changes implemented by the interim rule help to expedite the
appeals process, which benefits the fishermen involved.
Changes to the Establishment of QS Pools
Regulations pertaining to the calculation of QS and the QS pool for
an area are found at Sec. 676.20. The interim rule at 60 FR 6448,
February 2, 1995, also amended Sec. 676.20(d)(3) to establish a reserve
within the QS pool of each IFQ regulatory area. Without such a reserve,
contested catch history would not be included in the pool, and persons
without QS included in the QS pool on January 31 of any year, when
annual allocations of IFQ are determined, would be unable to
participate in the IFQ fisheries in that year.
A problem of particular concern in the initial year of the IFQ
Program was that numerous appeals involved disputes over who owned or
leased a vessel that made qualified landings but not over the amount of
those landings. Many of these appeals were not resolved by January 31,
1995. Failure to establish a reserve within the QS pool could have
prevented the prevailing party from receiving and using IFQ during the
IFQ
[[Page 61498]]
fishing season in 1995. It is possible that such situations may occur
in the future.
To correct the problem, the interim rule established a QS pool
reserve for catch history that would otherwise have been withheld from
the QS pool due to the pendency, at the time of annual IFQ
determinations, of an appeal involving contested catch history, vessel
ownership, or vessel lease data by two or more QS applicants. The
interim rule allowed NMFS to set aside QS in the reserve pool for
deferred award to specific appellants, and to include this QS in the
total QS pool for purposes of determining the amount of IFQ to be
assigned to each holder of QS.
The interim rule addressed the problem that appeals involving
multiparty contests could unjustly result in failure to allocate IFQ
for the annual fishing season to applicants who make timely and
sufficient application for participation in the IFQ Program. The QS
pool reserve is used only in situations in which eligibility for
qualifying pounds has been established but the appropriate party to be
issued QS and resulting IFQ remains contested pending a decision.
Changes to General Prohibitions
Close monitoring of the harvest of IFQ halibut and IFQ sablefish is
required to prevent exceeding the total allowable catch for halibut and
sablefish fixed gear fisheries in each regulatory area. A regulation at
Sec. 676.16(d) was designed to ensure that an IFQ holder harvested his
or her IFQ only in the regulatory area specified on his or her IFQ
permit. This regulation, enforced by at-sea monitoring of catches, made
it unlawful for any person to retain IFQ halibut or IFQ sablefish on a
vessel in excess of the total amount of unharvested IFQ, applicable to
the vessel category and IFQ regulatory area in which the vessel is
operating, and that is currently held by all IFQ card holders on board
the vessel.
The practical effect of this provision was to require persons to
offload all IFQ species caught in one regulatory area before fishing
IFQ in another regulatory area. IFQ holders with small amounts of IFQ
in multiple regulatory areas were especially affected, because the IFQ
held in one area was frequently too small to cover the IFQ species
harvested in that area and another.
Members of the fishing industry requested the Council to relieve
the requirement specified in Sec. 676.16(d). At its meeting in June 21-
25, 1995, the Council recommended that NMFS implement an emergency rule
to allow vessels required to keep daily logs and carry 100 percent
observer coverage to retain IFQ halibut or IFQ sablefish in excess of
the total amount of unharvested IFQ applicable to that vessel in the
IFQ regulatory area in which the vessel is operating. The Council also
recommended that the regulations be so amended for future years.
NMFS determined that an interim rule was appropriate to effect the
changes requested by the Council and, in the interim rule published at
60 FR 45378, August 31, 1995, amended Sec. 676.16(d) to allow vessel
operators subject to recordkeeping and observer coverage regulations to
fish for IFQ species in regulatory areas for which persons aboard the
vessel hold IFQ, even when the amount of IFQ held for a specific area
is less than the total amount of IFQ species on board the vessel.
A vessel operator must comply with the requirements at
Sec. 676.16(d), unless the vessel has an observer aboard pursuant to 50
CFR part 677 while fishing for the IFQ species in the regulatory area
concerned and complies with the applicable daily fishing logbook
requirements at 50 CFR 301.15, 672.5(b)(2), and 675.5(b)(2). The
observer and recordkeeping requirements enable authorized officers to
verify that the IFQ halibut or IFQ sablefish on board was lawfully
harvested in the appropriate IFQ regulatory area by an IFQ card holder
with sufficient unused IFQ applicable to the vessel category. The
interim rule thus provided added flexibility to the IFQ holder's
fishing schedule while still allowing NMFS to monitor closely IFQ
harvests.
Although the Council requested that this relief be provided in all
IFQ regulatory areas, current provisions in 50 CFR 301 remain in force
and partly diminish the benefits of the present action. Specifically,
provisions in Sec. 301.14 require a vessel operator who intends to
harvest halibut in areas 4A, 4B, 4C, or 4D to obtain a vessel clearance
in designated ports before commencing harvest or landing of halibut.
This vessel clearance requirement, while not in direct conflict with
the interim rule, may diminish the intended effect. Any changes to the
requirements of Sec. 301.14 must be approved and adopted by the
International Pacific Halibut Commission.
Classification
This final rule finalizes actions made effective by interim rules
published at 60 FR 6448 on February 2, 1995, and 60 FR 45378 on August
31, 1995. Though the requirement for prior notice and an opportunity
for public comment was waived for good cause on both of the interim
rules, an opportunity for comment was provided. NMFS received no
comments and adopts the interim rules as final without change. In that
this rule finalizes actions already in effect, a delayed effectiveness
period is unnecessary and is therefore waived for good cause pursuant
to 5 U.S.C. 553(d)(3).
This final rule does not require the collection of new information,
but adopts a shorter period of time within which affected persons would
have to submit information. The collection of information necessary for
this rule has been approved by the Office of Management and Budget
(OMB), OMB control number 0648-0272 (regarding IFQs for Pacific halibut
and sablefish), OMB control number 0648-0280 (North Pacific Fisheries
Research Plan), and OMB control number 0648-0213 (logbook family of
forms).
This final rule has been determined to be not significant for
purposes of E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: November 22, 1995.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, the interim rules amending
50 CFR part 676 that were published at 60 FR 6448, February 2, 1995,
and 60 FR 45378, August 31, 1995, are adopted as a final rule without
change.
[FR Doc. 95-29198 Filed 11-29-95; 8:45 am]
BILLING CODE 3510-22-F