[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