Limited Access Management of Fisheries off Alaska, Determinations and Appeals

DEPARTMENT OF COMMERCE

50 CFR Part 676

[Docket No. 940103-4003; I.D. 122893B]

RIN 0648-AD19

Limited Access Management of Fisheries off Alaska, Determinations

and Appeals

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: This document proposes procedures to govern appeals of initial

administrative determinations under the Alaska fixed gear Pacific

halibut and sablefish Individual Fishing Quota (IFQ) limited access

program. This proposed rule sets forth: Who may appeal initial

administrative determinations; the time period for submitting appeals;

what must be included in appeals; procedures regarding acceptance of

appeals; the authority of appellate officers; the process for

disqualifying appellate officers; evidentiary procedures; the hearing

process, including discretionary pre-hearing conferences; post-hearing

decisions; and general procedures for appeals. The intended effect of

this action is to set forth proposed procedures for appeals from

initial administrative determinations made by NMFS management staff and

decisions issued by appellate officers under the IFQ program.

DATES: Comments must be received at the following address no later than

March 28, 1994.

ADDRESSES: Comments may be sent to Ronald J. Berg, Chief, Fisheries

Management Division, Alaska Region, NMFS, 709 W. 9th, room 453, Juneau,

AK 99801 or P.O. Box 21668, Juneau, AK 99802, Attention: Lori J.

Gravel. Copies of this proposed rule, and the final environmental

impact statement/supplementary environmental impact statement (FEIS/

SEIS) for the halibut and sablefish IFQ programs, respectively, may be

obtained from the North Pacific Fishery Management Council, P.O. Box

103136, Anchorage, AK 99510.

FOR FURTHER INFORMATION CONTACT: John Lepore, Fisheries Regulations

Specialist, Alaska Region, NMFS, at 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

The IFQ program is a regulatory regime intended by the North

Pacific Fishery Management Council (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).

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 through the

IFQ program beginning in 1995. Further information on the program is

contained in the preamble to the final regulations implementing the

program (50 CFR part 676) (58 FR 59375, November 9, 1993).

This action proposes procedures for appeals under 50 CFR part 676.

Appeals would be available from initial administrative determinations

made by NMFS management staff and appellate officers' decisions. Final

action on this proposed rule will be taken by NMFS after review and

consideration of public comments.

Initial Administrative Determinations

Initial administrative determinations are the findings of NMFS

staff on eligibility for initial allocation, transfer and use of quota

share (QS) and IFQ under the IFQ program. Initial administrative

determinations become the final agency action within 90 days of its

issuance unless appealed under the procedure described below.

Examples of initial administrative determinations that would be

made by NMFS staff are: (1) Whether applicants have submitted

sufficient documentation to demonstrate that 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 to applicants

based on the documentation provided in applications; (3) whether

documentation submitted with applications, or documentation requested

by NMFS staff, supports the claims made on applications for initial QS

allocations; (4) whether to grant initial QS allocations based on

specific vessel categories and fishery statistical areas; and (5) other

issues that might arise under 50 CFR part 676.

Prior to making initial administrative determinations, NMFS staff

would be able to request additional information from applicants to

support their applications. Applicants would be provided 90 days to

respond to these requests. Requests for additional information would

provide an opportunity for applicants to submit additional

documentation for claims not consistent with data contained in NMFS

files. Requests for additional information could not in themselves be

the subject of an administrative appeal. Appealable determinations

would not be made until: (1) An applicant has responded to the request

by providing additional information within the time period; (2) an

applicant has waived the right to respond to the request for additional

information, and instead has requested that a determination be made on

the application in its current form; or (3) an applicant has not

responded within the applicable time period.

Appeals

Persons, as defined in 50 CFR 676.11, whose interests are directly

and adversely affected by initial administrative determinations made by

NMFS staff or by decisions issued by appellate officers would be able

to appeal those determinations or decisions. The proposed rule would

establish a 2-tier appeals process (i.e., appeal of an initial

administrative determination to the appellate officer and appeal of an

appellate officer's decision to the Regional Director). This process

would provide applicants with a reasonable opportunity to be heard

concerning agency actions.

Appeals would have to be in writing; appeals made orally, either in

person at NMFS, or over the telephone, would not be accepted. 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 would also have to be in original

form. This means that NMFS would not accept appeals sent by electronic

transmission (telefacsimile). Appeals could 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 would be established from the addresses used by

persons on their first correspondence to NMFS, Restricted Access

Management, Juneau, AK. For most persons, this first correspondence

would be their request for an application for QS allocation. Any

changes to the address of record should be promptly provided to NMFS in

writing. The burden to notify NMFS of address changes would be on the

IFQ program applicant because the applicant is in the best position to

have knowledge of such changes. Supplying address changes ensures that

NMFS would have an accurate and current address for correspondence.

Eligibility to appeal would begin on either the date initial

determinations were made by NMFS staff or on the date decisions were

issued by appellate officers. Appeals would have to be filed with NMFS

within 90 days of the date an initial administrative determination was

made, or within 45 days of the date an appellate officer's decision was

issued.

Appellants would be 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

would 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 would have to be accompanied by a

concise statement: (1) Raising a genuine and substantial issue of

adjudicative fact for resolution; and (2) listing available and

specifically identified reliable evidence upon which the factual issue

can be resolved. A hearing would 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 would be encouraged to, supply evidence

supporting the statement of appeal and request for a hearing. By timely

submitting a complete appeal, and by providing sufficient supporting

evidence, the appellate officer could make a decision in the

appellant's favor without further proceedings. Alternatively, the

appellate officer could deny the appeal as unfounded, a decision that

would be appealable to the Regional Director. Finally, the appellate

officer could decide to order a hearing to aid in the disposition of

one or more of the issues presented on appeal.

Hearings

Written or oral hearings would be held at the appellate officer's

discretion to resolve genuine and substantial issues of adjudicative

fact, if such hearings would be useful to resolve those issues. The

decision of whether to hold a written or oral hearing would be solely

within the appellate officer's discretion and could not be appealed to

the Regional Director.

The appellate officer could order a written hearing on a

determination that the issues presented in an appeal could be resolved

by allowing the appellant an opportunity to respond through written

submissions. The written hearing process would be the preferred method

of resolving issues unless the appellate officer determined that an

oral hearing is necessary. The appellate officer might 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 would provide

the appellant with notice that a written hearing has been ordered,

provide the appellant with a statement of issues to be determined, and

provide the appellant with 30 days to file a written response, which

might include affidavits from the appellant or other witnesses. The

statement of issues would provide the appellant with information

concerning the issues to be determined at hearing by the appellate

officer. This statement would help to focus the appellant on pertinent,

rather than extraneous, issues. The appellate officer might, at his/her

sole discretion, extend the 30-day filing period for the written

response if the appellant shows good cause for failing to meet the

deadline. This extension would be provided only in cases in which the

appellant could not respond within the time period. The success of the

IFQ program depends on the timely disposition of all appeals.

Extensions for an unjustified failure to meet filing deadlines would

not be allowed.

The appellate officer would order an oral hearing on a

determination that an oral hearing is necessary to resolve one or more

issues presented in the appeal. As explained above, the decision to

order either an oral or written hearing lies solely within the

appellate officer's discretion. On ordering an oral hearing, the

appellate officer would provide the appellant with notice that an oral

hearing has been 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 would be held in Juneau 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. As explained above,

routine delays would not be allowed, and the ordering of continuances,

like extensions, would be solely within the appellate officer's

discretion.

The proposed rule would allow appellate officers to order pre-

hearing conferences. The pre-hearing conference could be used to

simplify the issues, obtain stipulations and admissions of facts, and

discuss the possibility of settlement without further proceedings.

Simplifying the issues would increase the efficiency of the hearing

process by ensuring that the appellant's time and effort are not wasted

on extraneous issues. Stipulations, which are conditions that are

specified and agreed on in advance, and admissions of fact, which are

admissions that certain facts are not in dispute and do not need to be

proved, would assist in streamlining the hearing process. Settlements

could be beneficial to all parties concerned, allowing for the

resolution of some issues without the time and cost that would be

associated with using the entire hearing process. The formal rules of

evidence would not apply.

The appellate officer would have authority to conduct hearings in

an orderly manner, including the powers specifically listed in proposed

Sec. 676.25(i). In addition, NMFS is considering whether the appellate

officers have the legal authority to (1) issue subpoenas to compel

testimony and the production of documentary evidence, and (2) take

depositions and cause depositions to be taken. Although these

additional powers are not specifically enumerated in proposed

Sec. 676.25(i), NMFS nevertheless requests public comment on the

authority for, and advisability of, granting appellate officers these

powers.

To provide for the integrity of the process, appellate officers

would withdraw from an appeal at any time they deem themselves

disqualified. This could occur because of financial connection to the

case, ex parte communications, or some other personal bias. In

addition, appellants would be able to request withdrawal of the

appellate officer. An appellate officer might withdraw upon the

appellant's motion if it was entered prior to the issuance of a

decision and the appellant demonstrated personal bias or other basis

for disqualification. If the appellate officer denies the motion to

withdraw, he/she would have to do so on the record.

At the conclusion of the hearing, whether oral or written, the

appellate officer would close the record and issue a decision. The

proposed rule would require that the appellate officer's decision be

based solely on the record of the proceedings, ensuring that the

appellant would have the opportunity to review all information that was

used in the decision-making process. This requirement would also

establish a record for review on appeal.

Appeal to the Regional Director

An appellant whose interests are directly and adversely affected by

an appellate officer's decision would have an opportunity to appeal

that decision to the Regional Director. A written appeal to the

Regional Director would have to be filed within 45 days of the issuance

of the appellate officer's decision. If the appellate officer's

decision was not appealed within this 45-day period, that decision

would become effective upon the expiration of the time period and would

be considered a final agency action. A 45-day period is proposed

because it is long enough to provide the appellant with reasonable time

to prepare an adequate appeal to the Regional Director, but not be too

long as to unduly delay the appeals process. An appeal to the Regional

Director would have to clearly and concisely state the reasons why the

appellate officer's decision has a direct and adverse effect on the

appellant, or other party, and should be modified, reversed, or

remanded.

The Regional Director would resolve the appeal based solely on the

record as developed by the appellate officer and would not hold another

hearing. 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 would be in the

record. The appellate officer's decision would be affirmed by either

the Regional Director denying the appeal or issuing an order affirming

the appellate officer's decision. The Regional Director could deny

appeals that are submitted after the 45-day period or appeals that did

not articulate a sufficient basis to modify, remand, or reverse the

appellate officer's decision. The Regional Director could 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 would issue a written decision explaining the reasons for the

determination. Unless a remand was ordered, a decision by the Regional

Director would be a final agency action subject to judicial review. In

the case of a remand, the appellate officer would need to conduct

further proceedings consistent with the Regional Director's decision.

Classification

This proposed rule is designed to implement the appeals portion of

the IFQ program, a program intended by the Council to promote the

conservation and management of the halibut and sablefish resources, and

to further the objectives of the Magnuson Act and the Halibut Act. This

proposed rule is consistent with the national standards, other

provisions of the Magnuson Act, the Halibut Act, and other applicable

laws.

A regulatory flexibility analysis was prepared for the IFQ program,

describing the effects of this program on small entities. This analysis

was contained in the FEIS for the IFQ program. The Secretary of

Commerce concluded that the IFQ program would have a significant

economic impact on a substantial number of small entities based on this

analysis. Any effect of this proposed rule, which implements the

appeals process for the IFQ program, was included in this prior

analysis.

This proposed rule contains a collection of information requirement

subject to the Paperwork Reduction Act of 1980. 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 rule is not subject to review under E.O. 12866.

List of Subjects in 50 CFR Part 676

Fisheries; Reporting and recordkeeping requirements.

Dated: February 3, 1994.

Nancy Foster,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 676 is

proposed to be amended as follows:

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

ALASKA

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

follows:

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

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

Sec. 676.25 Determinations and appeals.

(a) General. The following section describes the procedure for

appealing initial administrative determinations and appellate officers'

decisions made under 50 CFR part 676.

(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 a person 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 Officer 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 paragraph (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 cannot 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 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. 94-2871 Filed 2-8-94; 8:45 am]

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