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

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.

-----------------------------------------------------------------------

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