National Appeals Office Rules of Procedure, 7056-7064 [2014-02565]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 79, Number 25 (Thursday, February 6, 2014)]
[Rules and Regulations]
[Pages 7056-7064]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-02565]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 906

[Docket No. 101019524-3999-02]
RIN 0648-BA36


National Appeals Office Rules of Procedure

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: With this final rule, NMFS implements procedural regulations 
governing the National Appeals Office (NAO), a division of NMFS Office 
of Management and Budget within NOAA. NAO's central mission is to 
provide an efficient means of adjudicating appeals by providing due 
process and consistency to NMFS administrative decisions, particularly 
those involving Limited Access Privilege Programs (LAPPs) established 
pursuant to Section 303A of the Magnuson-Stevens Fishery Conservation 
and Management Act. The procedures contained herein could also be used 
to adjudicate appeals from other offices that incorporate these rules 
into their regulations or otherwise notify potential appellants of the 
procedures' applicability to their proceedings.

DATES: This final rule is effective March 10, 2014.

FOR FURTHER INFORMATION CONTACT: Steven Goodman, National Appeals 
Office, Office of Management & Budget, NMFS, 1315 East-West Hwy., Room 
10843, Silver Spring, MD 20910; nmfs.nao.contact@noaa.gov; (301) 427-
8774. (This is not a toll-free number.) Individuals with hearing or 
speech impairments may access the telephone number above via TTY by 
calling the Federal Information Relay Service at (800) 877-8339.

SUPPLEMENTARY INFORMATION: Section 303A of the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA) authorizes LAPPs and requires 
NMFS to ``include an appeals process for administrative review of the 
Secretary's decisions regarding initial allocation of limited access 
privileges.'' To fulfill that requirement, NMFS is adopting this final 
rule at 15 CFR part 906, which would designate NAO, a division within 
NMFS Office of Management and Budget, as adjudicator for appeals in 
future LAPPs established under section 303A of the MSA.
    NAO adjudicates initial administrative determinations, agency 
actions that directly and adversely affect an appellant. Although not 
exclusively, NAO proceedings are for appeals of denials of permits or 
other limited access privileges. Typically, NAO will be used for 
informal administrative appeals.
    This final rule addresses operations as well as events that occur 
during the course of adjudicating an appeal filed with NAO. NAO will 
produce written decisions upholding or reversing the initial 
administrative determination under review. Under this final rule, a 
decision issued by NAO becomes final after a NMFS Regional 
Administrator has had the opportunity to review NAO's decision. A 
Regional Administrator may adopt, reverse, remand, or modify NAO 
decisions.
    Additional background information on this final rule is found in 
the preamble to the proposed rule published on June 8, 2012 (77 FR 
33980), and is not repeated herein. The proposed rule solicited public 
comments; the comments and NMFS' responses are identified below.

Comments and Responses

    The proposed rule solicited public comments through July 9, 2012. 
During the comment period, NMFS received comments from five individuals 
and two entities. The two entities are the Public Employees for 
Environmental Responsibility and the Alaska Commercial Fisheries Entry 
Commission. Some persons and entities made multiple comments in one 
document. The specific comments and our responses are as follows.

[[Page 7057]]

    Comment 1: One entity recommends a different description for 
preponderance of the evidence as it relates to the burden of proof on 
issues of fact.
    Response: NMFS revised the definition of ``preponderance of the 
evidence'' by deleting ``reasonable person'' and modifying the 
reference to a contested fact being ``more likely than not'' to ``more 
likely to be true than not true.'' The revised definition maintains an 
objective standard and does not substantively change the burden of 
proof. Although federal agencies appear to use various definitions of 
``preponderance of the evidence,'' the definitions are generally 
consistent in their meaning, and the definition set out in the final 
rule is used by a number of other federal agencies.
    Comment 2: One individual would like a different definition of 
``Initial Administrative Determination'' or ``IAD.'' The individual 
believes the proposed definition is too limited, and recommends NMFS 
adopt the definition found in The Design and Use of Limited Access 
Privilege Programs, a Technical Memorandum NOAA published in 2007. In 
the Memorandum, an IAD is identified as: ``[A] formal decision on an 
applicant's claims that identifies the applicant, the program, and the 
claim. The IAD contains a background section that summarizes the 
proceedings to date and then discusses the claim in light of 
information in the Official Record and the requirements of the 
regulations. The formal denial is then set out and the applicant is 
informed of her/his right to appeal.''
    Response: The commentator's definition was written specifically for 
limited access privilege programs. NMFS chose a broad definition in the 
Proposed Rule to capture all possible types of decisions over which it 
may assume jurisdiction. NMFS requires the flexibility to use NAO to 
process appeals from decisions not associated with limited access 
privilege programs.
    Comment 3: One entity states that if an appellant fails to meet a 
deadline, the appellant should be able to file for an extension to the 
deadline to file. The entity also states allowing appellants to file 
after a deadline has past is consistent with the Federal Rules of Civil 
Procedure. An individual stated a deadline should be stayed while a 
request for extension is pending.
    Response: In response to the comment, NMFS revised Sec.  906.4(d) 
to state that one thirty day extension may be granted if an appellate 
officer determines a party has established good cause for an extension 
of time, taking into account whether the party timely requested the 
extension or the extent to which the party missed the deadline. A 
person may not request an extension of time to file a petition to 
appeal. The Federal Rules of Civil Procedure do not apply to 
administrative appeals.
    Comment 4: One entity and three individuals believe it is unfair to 
require an appellant to raise the arguments in support of his or her 
appeal in the petition. They believe appellants may be unsophisticated 
and therefore should be able to add new arguments at any stage of the 
appeals proceeding. One individual thinks an appellant should have 
thirty days to amend his or her petition, based on the model in the 
federal regulations at 15 CFR part 904 et seq.
    Response: In response to public comments, NMFS has revised the rule 
to permit amendments to the petition based on good cause for not 
raising the arguments in the original petition. The federal regulations 
at 15 CFR part 904 et seq. apply to law enforcement proceedings. 
Although NMFS took them into consideration, NMFS believes the final 
rule is more appropriate for appeals of limited access privileges and 
other decisions.
    Comment 5: Three individuals recommend NMFS accept filing of 
appeals by electronic method. Two individuals believe an appellant 
should be able to file by mail or commercial carrier regardless if they 
have a fax machine.
    Response: NMFS agrees that it would be advantageous to permit 
electronic filing of appeals; however, NMFS decided not to proceed with 
this method of filing because of privacy and security concerns. NMFS 
will accept filing by mail or commercial carrier. NMFS believes filing 
by fax machine is preferable to filing by mail or commercial carrier 
because the former is faster and less problematic than the latter.
    Comment 6: One individual thinks fishermen need at least 60 days to 
file a petition.
    Response: The Proposed Rule sets a default of a 45-day filing 
deadline; however, if the substantive program regulations contain a 
specified deadline this will supplant the default 45-day deadline. NMFS 
believes 45 days is a sufficient default.
    Comment 7: One individual thinks ten days' notice of a hearing is 
too short and that at least 30 days' notice should be required. Another 
individual states that 10 days is too short for fishermen who may be at 
sea for more than 10 days at a time.
    Response: The time frames in the final rule reflect a balancing of 
many factors, including the nature of the fishing industry, the need to 
provide a meaningful opportunity to be heard, and the need to resolve 
appeals in a timely manner to provide certainty for all limited access 
privilege holders. NMFS believes 10 days' notice of hearings provides 
due process. A 10 day timeframe appears in 15 CFR 906.8(b), 906.9(b) 
and (c), 906.11(a)(3), 906.16(a), and 906.17(a). The individual did not 
identify which part of the Proposed Rule he was referring to, but NMFS 
balanced similar considerations when determining the length of all time 
periods.
    Comment 8: One individual does not think filing with NAO should be 
complete upon receipt at NAO's office and suggests NMFS use the model 
found at 15 CFR 904.3(b).
    Response: NMFS believes it is necessary to have a clear date and 
time of filing and filing as of the date of a postmark may not provide 
that certainty. The federal regulations at 15 CFR part 904 et seq. 
apply to law enforcement proceedings. Although NMFS took them into 
consideration, NMFS believes the final rule is more appropriate for 
appeals of limited access privileges and other decisions.
    Comment 9: One entity and three individuals recommend NMFS not give 
deference to the interpretation of an ambiguous regulation by the 
program office issuing the Initial Administrative Determination (IAD). 
One entity and one individual claim giving deference to the program 
office will prevent NMFS from being able to correct decisions made by 
program offices. One individual claims NMFS program employees are not 
properly trained in regulatory interpretation. The same individual 
requests that the RA make the final policy determinations. Another 
individual claims determining whether an interpretation is ambiguous or 
whether a program office's interpretation is reasonable would result in 
expensive and unproductive arguments.
    Response: NAO (and the RA) generally review appeals de novo, and 
the final rule provides that NAO shall defer to the reasonable 
interpretations of applicable ambiguous laws and regulations made by 
the office issuing the initial administrative decision. NAO defers in 
that instance because the program office comes into contact with a much 
greater number of program cases than NAO, which encounters only those 
regulatory issues resulting in contested cases. The program office has 
expertise in this area and is in the best position to make 
determinations on ambiguous regulations. Further, because the

[[Page 7058]]

program office is interpreting regulations for all the applications for 
a specific program, they develop a consistent set of interpretations 
for that program. NMFS program employees are well-trained and consult 
with the regional sections of NOAA's Office of the General Counsel. 
NMFS believes that deferring to the program office in this area is 
appropriate. NAO is able to correct a program office decision when the 
office has not made a reasonable interpretation of an ambiguous 
regulation. In reviewing administrative appeals, the RA will consider 
the evidentiary record including arguments, claims, evidence of record 
and other documents of record that were before NAO when it rendered its 
decision or revised decision. Affording deference to the program office 
will not result in expensive and unproductive arguments, but rather 
will provide for both a sound process for interpreting ambiguous 
regulations and better appeals and agency decisions.
    Comment 10: Two individuals recommend an appellant be given the 
opportunity to submit arguments regarding the program office's response 
to an NAO request for its interpretation of an ambiguous regulation. 
One individual recommends the program office be required to include its 
interpretation of an ambiguous regulation in its IAD. One individual 
recommends that if NMFS needs a program office interpretation then it 
should issue an order requiring a program office to provide an 
interpretation.
    Response: Generally, a program office may interpret an ambiguous 
regulation in its IAD. If NAO determines that a regulation is 
ambiguous, it may be necessary for NAO to contact the program office to 
obtain its interpretation. The request can be made by order, but an 
order is not necessary. If NAO contacts a program office for its 
interpretation of an ambiguous regulation, an appellant will be 
provided notice of the request. The rules do not preclude an appellant 
from submitting arguments regarding a program office's response to a 
request for its interpretation.
    Comment 11: One entity and two individuals indicated the 
requirement that copies be of ``equal legibility'' as the originals was 
not warranted. One individual said that appellants may only have carbon 
copies of documents, and suggested the standard for accepting copies 
should be left to the discretion of the appellate officer based on 
whether the copy is sufficiently clear.
    Response: An appellate officer will decide whether to admit 
evidence into the NAO case record. To be offered as evidence, copies of 
documents must be of equal legibility and quality as the originals. 
Copies of documents that are not of equal legibility and quality as the 
originals may indicate documents that are suspect. NMFS needs the 
ability to reject documents that are suspect or because the quality of 
the original relates to a material fact.
    Comment 12: Two individuals recommend that the RA have more than 10 
days to review NAO decisions. One individual believes that if 10 days 
remains the time period then NAO should be required to transmit its 
decision to the RA by email. This individual also believes the term 
``days'' should be clarified to mean business days. One individual does 
not believe the RA should be precluded from considering anything that 
was not before NAO. A third individual thinks the language addressing 
when an RA can issue a decision is unclear.
    Response: NMFS removed the 10-day review period from 15 CFR 906.17 
and clarified the RA review process in that section. The term ``day'' 
does not mean business day, but is defined in the rule as calendar day. 
It is appropriate for an appellant to present evidence to the fact 
finder. The fact finder for NMFS is NAO, who can probe the truth and 
veracity of evidence, determine credibility, and otherwise develop the 
record. The RA is not in a position to fact find because he or she is 
reviewing the record as it exists. NMFS clarified the RA review process 
in 15 CFR 906.17, specifying when an RA can issue a written decision 
adopting, remanding, reversing, or modifying NAO's decision or revised 
decision.
    Comment 13: One entity and three individuals commented about the 
pre-hearing and hearing provisions of the proposed rule. The entity and 
an individual believe hearings should be recorded as a matter of law. 
One individual believes that a prehearing conference should be 
mandatory unless an appellate officer can justify, in writing, his or 
her decision to not hold a pre-hearing conference. The same individual 
echoes the concern with respect to hearings, stating that if a hearing 
is not held, an appellate officer should be required to state in 
writing why he or she decided a hearing was not necessary.
    Response: Pre-hearings and hearings do not always need to be held. 
For example, if no material issues of fact or law are in dispute, a 
pre-hearing or hearing may be unnecessary. Further, holding unnecessary 
pre-hearings or hearings is an inefficient use of government resources. 
Because an appellate officer has the discretion to order a pre-hearing 
or hearing, there is no requirement for an appellant officer to state 
in writing why he or she did not order a hearing if he or she did not 
order a hearing. If an RA believes a hearing is necessary, he or she 
may remand the appeal for a hearing. While NAO may conduct formal 
hearings, typically, NAO's proceedings are informal and recording is 
not required by law. However, NAO will record all hearings unless an 
appellant consents to proceed without a recording.
    Comment 14: One individual states the rule should include a 
provision for discovery and compelling witness testimony. Without a 
discovery process, according to the individual, it will be difficult 
for an appellant to prove his or her case. The same individual states 
that the rule is not clear about when an appellant can submit evidence 
in support of his or her petition. The same individual thinks without a 
hearing, an appellant cannot offer exhibits for the record.
    Response: The rule is generally for informal proceedings. An 
appellant can obtain evidence to support his or her claim through 
various means, including the record from the NMFS office that issued 
the IAD. The rule allows the appellant to submit evidence to support 
his or her petition when the appellant files his or her petition to 
appeal. However, NAO will determine whether to admit proffered evidence 
into the record.
    Comment 15: One individual states that once a motion for 
reconsideration is filed with NAO, NAO should issue a stay so that an 
appellant has time to meet the deadline for filing a petition for 
review before the RA.
    Response: There is no petition for review to the RA. The RA reviews 
all appeals. NMFS modified the rule so that NAO will have adequate time 
to review a motion for reconsideration.
    Comment 16: Two individuals state that the office issuing the 
administrative determination should provide a copy of the agency record 
to the appellant. One of the individuals suggests a twenty-day 
timeframe for transmitting the copy.
    Response: NMFS assumes the individual's reference to 
``administrative determination'' means IAD. The agency may supply 
records upon request and will follow all Federal law applicable to 
reviewing requests for records.
    Comment 17: One individual agrees that ex parte communication on 
the merits of a pending appeal should not be permissible. The same 
individual, however, thinks the rule should apply

[[Page 7059]]

to communications between appellate officers and their chief.
    Response: The chief is responsible for the quality and timeliness 
of the decisions issued by NAO and must be able to communicate with his 
or her employees.
    Comment 18: One individual suggests NMFS add language to the 
Proposed Rule so that the office that issued the IAD may file a motion 
for reconsideration.
    Response: Any party, including an agency that decides to be a 
party, may file for reconsideration. NMFS thinks this is appropriate 
since the parties participate in the proceedings.
    Comment 19: One individual requests NMFS revise the Proposed Rule 
so that on reconsideration NAO can grant the motion and reopen the 
record to accept additional evidence or argument on the points raised 
in the petition for reconsideration.
    Response: The final rule permits appellants to move for 
reconsideration. Reconsideration is not a new level of appeal. Rather, 
reconsideration is to correct errors of fact or law, based on evidence 
of record, that were made in the NAO decision. The appellate officer 
has discretion to reopen the record when appropriate.
    Comment 20: One individual requested a yearly summary of decision 
outcomes in order to increase transparency and reduce the potential for 
corruption. One entity and two individuals recommend NAO publish all 
decisions by appellate officers and decisions by the RA in reviewing 
decisions by appellate officers. The entity and an individual thought 
names should not be redacted and that the decisions should be indexed. 
One individual requested that in addition to making decisions 
available, decisions be published on both NMFS headquarters Web site 
and the Web site from the region where the appeal originated. One 
individual wants decisions published within 10 days of issuance.
    Response: NMFS appellate officers will apply the law to the facts 
in each individual appeal to determine case outcomes. A NMFS appellate 
officer will disqualify him or herself if he or she has a perceived or 
actual conflict of interest, prejudice or bias. NMFS may publish NAO 
and RA decisions on NMFS' Web site. If it does so, NMFS will comply 
with applicable laws and regulations, including but not limited to the 
Freedom of Information Act (FOIA), the Privacy Act, the Health 
Insurance Portability and Accountability Act (HIPAA), and the MSA.
    Comment 21: Two entities and one individual suggest NMFS regional 
offices should be allowed to opt out of using NAO or that NAO should 
not exist. One individual asks how a program or office may opt in to 
use NMFS appeals process.
    Response: The purpose of NAO is to provide a central forum, using 
uniform rules. To ensure consistency and fairness, NMFS believes it is 
advantageous to use one process when possible. The details for opting 
into NMFS administrative appeals process will be addressed as the need 
arises.
    Comment 22: Two entities and one individual state that the MSA does 
not authorize a central appeals process. They advocate a process 
controlled exclusively by NMFS regional offices. One entity states 
local expertise is needed to adjudicate appeals. One individual adds 
NMFS is not following its policy articulated in NOAA Technical 
Memorandum NMFS-F/SPO-86, The Design and Use of Limited Access 
Privilege Programs, published in 2007. The individual says that 
document recommended handling appeals regionally. The same individual 
states that NMFS could set minimal standards for regions to follow in 
adjudicating appeals, but removing the adjudicative function entirely 
from the region is not the answer.
    Response: The MSA requires NMFS to establish an appeals process for 
agency denials of limited access privileges under LAPPs. NMFS decided 
to vest that authority in NAO. NAO will base its decisions on published 
regulations, and be a neutral body. NMFS believes the fact that NAO is 
geographically removed from the regions does not undermine that 
neutrality, but enhances it. The Memorandum was published in 2007 and 
states that it is non-binding. In 2008, NMFS decided to create a 
centralized appeals office. The administrative appeals process will not 
forego regional input; each RA retains ultimate decision-making 
authority.
    Comment 23: One individual thinks ``the only `current 
infrastructure for LAPP appeals' is in the Alaska Region.'' One entity 
and one individual believe a centralized process will not be cost 
efficient. The individual believes there is no evidence the Office of 
Administrative Appeals, formerly at NMFS Alaska Regional Office, failed 
to achieve economies of scale or efficient use of resources. The 
individual thinks NMFS is disingenuous when it states: ``A cadre of 
experienced and well-trained appellate officers would free other 
employees to use their time performing duties within their area of 
expertise.'' The individual thinks that the time used to review NAO 
decisions will not be cost effective.
    Response: All regions have a process for processing administrative 
appeals. In the Preamble to the Proposed Rule, NMFS stated: 
``Historically, administrative appeals were processed by NMFS regional 
offices. Each NMFS region has had a different structure and process for 
resolving appeals.'' NMFS also noted: ``Most of the appeals processes 
currently used by NMFS pre-date the new MSA requirement. Further, the 
current infrastructure for LAPP appeals does not achieve optimum 
economies of scale, or efficient use of resources.'' NMFS believes that 
efficiencies will be realized through NAO rather than running five 
different processes in five different locations. The decision to 
consolidate appeals processes nationally was not directed at the Office 
of Administrative Appeals. NMFS acknowledges that NMFS employees will 
review NAO decisions. However, that does not undermine the benefits of 
a centralized process and enhances the checks and balance function 
inherent in a robust administrative appeals process.
    Comment 24: One entity and one individual believe NAO should not be 
a division of NMFS Office of Management and Budget. The individual 
thinks NAO should be within an operational division of NMFS 
headquarters. The entity thinks NMFS Office of Management and Budget's 
responsibilities are alien to the substantive adjudication of LAPP 
entitlements.
    Response: NAO is within the operations chain-of-command. NMFS 
believes placing NAO in the Office of Management and Budget would 
enhance neutrality and independence. LAPPs are not entitlement 
programs; as the name states, they are Limited Access Privilege 
Programs.
    Comment 25: One entity and one individual state NMFS does not 
understand LAPPs because NMFS characterized LAPPs in the Proposed Rule 
as a privilege which may provide benefits to some members of the public 
while excluding others.
    Response: LAPPs are not entitlement programs. LAPPs are privilege 
programs. Some members of the public will gain access, or the privilege 
to fish, and some members of the public may be excluded, as implied by 
the name Limited Access Privilege Programs.
    Comment 26: One entity states NMFS is wrong that the Proposed Rule 
will not have a significant economic impact on a substantial number of 
small entities. The entity believes small entities face serious 
economic burden if they must pursue their appeals at a distant 
location.

[[Page 7060]]

    Response: The cost of filing and participating in an appeal will 
typically be minimal. There are no filing fees, and no requirement that 
an appellant or witnesses appear for in-person hearings. This issue is 
discussed further in the Classification section, below. Further, 
implementing standardized rules could reduce the cost of appeals on 
small entities.
    Comment 27: One individual states the Proposed Rule suggests NAO 
will be created after the Proposed Rule is finalized.
    Response: NMFS established NAO in 2010. The Proposed Rule states 
that ``NAO adjudicates initial administrative determinations, defined 
in the proposed rule as agency actions that directly and adversely 
affect an appellant.'' In the Proposed Rule, NMFS proposed procedural 
rules to govern proceedings before NAO. With this final rule, NMFS 
implements procedural regulations governing NAO.
    Comment 28: Two individuals state that NAO has not improved the 
quality of decision making.
    Response: The comment is broader than the subject matter of the 
Proposed Rule. NAO does not yet function under the proposed procedural 
rules, as they have not yet been promulgated.
    Comment 29: One individual questions whether an appellant can seek 
judicial review from a decision from NAO, and not undergo RA review.
    Response: The agency decision is not final until after RA review, 
and judicial review cannot be initiated until after a final agency 
action occurs.

Changes From the Proposed Rule

    NMFS made minor changes to the proposed rule. NMFS clarified the 
scope of NAO review by explicitly stating that the NAO process cannot 
be used to challenge the legality of underlying law (Sec.  906.1(e)). 
NMFS also consolidated text regarding the definition of ``day'' and 
``ex parte communication,'' deleted definitions of ``person'' and 
``Secretary'' because they are already defined in the MSA, and 
corrected typographical errors in the proposed rule.
    In response to comments, NMFS revised the definition of 
``preponderance of evidence'' (Sec.  906.14) and clarified the 
decisions to be made through the appeals process (Sec. Sec.  
906.3(b)(3), 906.15). NMFS also provided more flexibility regarding 
extensions of time to file documents (Sec.  906.4(d)) and amendments to 
petitions for appeal (Sec.  906.3(b)(3)(i)), but noted that a person 
may not request an extension of time for petitions to appeal (Sec.  
906.3(e)(2)). NMFS also clarified the processes for motions for 
reconsideration (Sec.  906.16) and RA review (Sec.  906.17) and made 
edits for consistency in Sec.  906.18 (Final Decision of the 
Department).

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for this certification was published in the 
proposed rule and is not repeated here. One comment was received 
regarding this certification (see comment 26). The commenter believes 
small entities face serious economic burden if they must pursue their 
appeals at a distant location. There is no requirement, however, that 
an appellant or witnesses appear in-person for a hearing. As noted in 
the proposed rule: ``Hearings are also held at the discretion of an 
appellate officer or if the appellate officer considers such hearing 
will materially advance his or her evaluation of the issues under 
appeal. In determining whether to hold a hearing, an appellate 
officer's discretion will be guided by whether the appellate officer 
believes oral testimony is required to resolve a material issue of fact 
or whether oral presentation is needed to probe a party's position on a 
material issue of law. Conferences and hearings may be in person, but 
more likely, they will be held by telephone or by other electronic 
means. The rule does not bar face-to-face hearings, but it is not 
intended to require expenditure of funds in order for an appellant to 
participate . . . in a hearing.'' (77 FR at 33981). NMFS, therefore, 
disagrees with the commenter, and believes that the costs of an appeal 
will be minimal. Because appeals will not result in significant costs 
for small entities, and no other new facts have come to light that 
would change the determination that this rule will not have a 
significant impact on a substantial number of small entities, a final 
regulatory flexibility analysis is not required and none was prepared.

List of Subjects in 15 CFR Part 906

    Administrative appeals, Administrative practice and procedure, 
Fisheries.

    Dated: January 30, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set forth in the preamble, 15 CFR part 906 is added 
to read as follows:

PART 906--NATIONAL APPEALS OFFICE RULES OF PROCEDURE

Sec.
906.1 Purpose and scope.
906.2 Definitions.
906.3 Requesting an appeal and agency record.
906.4 General filing requirements.
906.5 Service.
906.6 Ex parte communications.
906.7 Disqualification of appellate officer.
906.8 Scheduling and pre-hearing conferences.
906.9 Exhibits.
906.10 Evidence.
906.11 Hearing.
906.12 Closing the evidentiary portion of the NAO case record.
906.13 Failure to appear.
906.14 Burden of proof.
906.15 Decisions.
906.16 Reconsideration.
906.17 Review by the Regional Administrator.
906.18 Final decision of the Department.

    Authority: 16 U.S.C. 1801 et seq.; 16 U.S.C. 1374, 1375 and 
1416; 16 U.S.C. 1540; 16 U.S.C. 773f; 16 U.S.C. 973f; 16 U.S.C. 
1174; 16 U.S.C. 2437; 16 U.S.C. 4013; 16 U.S.C. 5507; 16 U.S.C. 
7009; 16 U.S.C. 3637; 16 U.S.C. 5103 and 5106; 16 U.S.C. 5154 and 
5158; 16 U.S.C. 6905, and; 16 U.S.C. 5010.


Sec.  906.1  Purpose and scope.

    (a) This part sets forth the procedures governing administrative 
adjudications before the National Appeals Office (NAO).
    (b) NAO will adjudicate appeals of initial administrative 
determinations in limited access privilege programs developed under 
section 303A of the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA) and approved after the effective date of these 
regulations. Those appeals are informal proceedings.
    (c) The procedures in this part may be incorporated by reference in 
regulations other than those promulgated pursuant to section 303A of 
the MSA.
    (d) The Secretary of Commerce may request that NAO adjudicate 
appeals in any matter in controversy that requires findings of fact and 
conclusions of law, and other quasi-judicial matters that the Secretary 
deems appropriate, consistent with existing regulations. The Secretary 
will provide notice to potential appellants and to any affected party 
in these other matters through regulations or actual notice.

[[Page 7061]]

    (e) The procedures in this part may not be used to seek review of 
the validity of statutes or regulations.


Sec.  906.2  Definitions.

    As used in this part:
    Agency record means all material and information, including 
electronic, the office that issued the initial administrative 
determination relied on or considered in reaching its initial 
administrative determination, or which otherwise is related to the 
initial administrative determination.
    Appeal means an appellant's petition to appeal an initial 
administrative determination and all administrative processes of the 
National Appeals Office related thereto.
    Appellant means a person who is the named recipient of an initial 
administrative determination and appeals it to the National Appeals 
Office.
    Appellate officer means an individual designated by the Chief of 
the National Appeals Office to adjudicate the appeal. The term may 
include the Chief of the National Appeals Office.
    Day means calendar day unless otherwise specified by the Chief of 
the National Appeals Office. When computing any time period specified 
under these rules, count every day, including intermediate Saturdays, 
Sundays, and legal holidays. If the date that ordinarily would be the 
last day for filing with NAO falls on a Saturday, Sunday, or Federal 
holiday, or a day NAO is closed, the filing period will include the 
first NAO workday after that date.
    Department or DOC means the Department of Commerce.
    Initial Administrative Determination or IAD means a determination 
made by an official of the National Marine Fisheries Service that 
directly and adversely affects a person's ability to hold, acquire, 
use, or be issued a limited access privilege. The term also includes 
determinations issued pursuant to other federal law, for which review 
has been assigned to the National Appeals Office by the Secretary.
    NAO means the National Appeals Office, an adjudicatory body within 
the Office of Management and Budget, National Marine Fisheries Service, 
National Oceanic and Atmospheric Administration, Department of 
Commerce. The term generally means all NAO personnel, including 
appellate officers.
    NAO case record means the agency record and all additional 
documents and other materials related to an appeal and maintained by 
NAO in a case file.
    NMFS means the National Marine Fisheries Service, National Oceanic 
and Atmospheric Administration, Department of Commerce.
    National Oceanic and Atmospheric Administration or NOAA means the 
National Oceanic and Atmospheric Administration, Department of 
Commerce.
    Party means a person who files a petition for appeal with NAO and 
an office that issued the IAD if that office participates in the NAO 
appeal.
    Regional Administrator means the administrator of one of five 
regions of NMFS: Northeast, Southeast, West Coast, Alaska, or Pacific 
Islands. The term also includes an official with similar authority 
within the DOC, such as the Director of NMFS Office of Sustainable 
Fisheries.
    Representative means an individual properly authorized by an 
appellant in writing to act for the appellant in conjunction with an 
appeal pending in NAO. The representative does not need to be a 
licensed attorney.


Sec.  906.3  Requesting an appeal and agency record.

    (a) Who may file. Any person who is the named recipient of an 
initial administrative determination.
    (b) Petition to appeal. (1) To request an appeal, a person shall 
submit a written petition of appeal to NAO.
    (2) The petition shall include a copy of the initial administrative 
determination the person wishes to appeal.
    (3) In the petition, the person shall state how the initial 
administrative determination directly and adversely affects him or her, 
why he or she believes the initial administrative determination is 
inconsistent with the law and regulations governing the initial 
administrative determination, and whether he or she requests a hearing 
or prefers that an appellate officer make a decision based on the NAO 
case record and without a hearing.
    (i) Arguments not raised by the person in his or her petition to 
appeal will be deemed waived unless NAO permits amendments to the 
petition based on good cause for not raising the arguments in the 
original petition.
    (ii) The petition may include additional documentation in support 
of the appeal.
    (4) If a person requests a hearing, the written request must 
include a concise statement raising genuine and substantial issues of a 
material fact or law that cannot be resolved based on the documentary 
evidence.
    (5) In the petition, a person shall state whether the person has a 
representative, and if so, the name, address, and telephone number for 
the representative.
    (c) Address of record. In the petition, the person shall identify 
the address of record. Documents directed to the appellant will be 
mailed to the address of record, unless the appellant provides NAO and 
other parties with any changes to his or her address in writing.
    (1) The address of record may include a representative's address.
    (2) NAO bears no responsibility if the appellant or his or her 
representative does not receive documents because appellant or his or 
her representative changed his or her address and did not notify NAO.
    (3) NAO bears no responsibility if the appellant or his or her 
representative fails to retrieve documents upon notification from the 
United States Postal Service or commercial carrier.
    (4) NAO will presume that documents addressed to an address of 
record and properly mailed or given to a commercial carrier for 
delivery are received.
    (d) Place of filing. The petition must be transmitted via 
facsimile. The facsimile number is: 301-713-2384. If the person filing 
the petition does not have access to a fax machine, he or she may file 
the petition by mail or commercial carrier addressed to Chief, National 
Appeals Office, 1315 East-West Hwy., Silver Spring, MD 20910.
    (e) Time limitations. (1) A petition must be filed within 45 days 
after the date the initial administrative determination is issued 
unless a shorter or longer filing timeframe is explicitly specified in 
the regulations governing the initial administrative determination.
    (2) A person may not request an extension of time to file a 
petition to appeal.
    (f) Agency record. (1) Within 20 days of receipt of the copy of the 
petition to appeal, the office that issued the initial administrative 
determination that is the subject of the appeal shall transmit the 
agency record to NAO.
    (2) The office that issued the initial administrative determination 
shall organize the documents of the agency record in chronological 
order. Pages attached to a primary submission shall remain with the 
primary submission.
    (g) Agency participation in appeal. Within 20 days of receipt of 
the copy of the petition to appeal, the office that issued the initial 
administrative determination that is the subject of the appeal may 
provide written notice to NAO that it will be a party to the appeal. An 
office issuing the initial administrative determination is not required 
to be a party.

[[Page 7062]]

Sec.  906.4  General filing requirements.

    (a) Date of filing. Filing refers to providing documents to NAO.
    (1) Except for the agency record required under Sec.  906.3(f), all 
documents filed on behalf of an appellant or related to an appeal shall 
be submitted to NAO via facsimile. The facsimile number is: 301-713-
2384. If the person filing does not have access to a fax machine, he or 
she may file by regular mail or commercial carrier addressed to Chief, 
National Appeals Office, 1315 East-West Hwy., Silver Spring, MD 20910.
    (2) A document transmitted to NAO is considered filed upon receipt 
of the entire submission by 5 p.m. Eastern Time at NAO.
    (b) Copies. At the time of filing a submission to NAO, the filing 
party shall serve a copy thereof on every other party, unless otherwise 
provided for in these rules.
    (c) Retention. All submissions to NAO become part of a NAO case 
record.
    (d) Extension of time. When a submission is required to be filed at 
NAO by a deadline, a party may request, in writing, an extension of 
time to file the submission, citing the specific reason(s) for the need 
for an extension. NAO may grant one extension of up to 30 days if an 
appellate officer determines the party has established good cause for 
an extension of time, taking into account whether the party timely 
requested the extension or the extent to which the party missed the 
deadline.


Sec.  906.5  Service.

    (a) Service refers to providing documents to parties to an appeal.
    (1) Service of documents may be made by first class mail (postage 
prepaid), facsimile, or commercial carrier, or by personal delivery to 
a party's address of record.
    (2) Service of documents will be considered effective upon the date 
of postmark (or as otherwise shown for government-franked mail), 
facsimile transmission, delivery to a commercial carrier, or upon 
personal delivery.
    (b) A party shall serve a copy of all documents to all other 
parties and shall file a copy of all documents with NAO the same 
business day.
    (c) NAO may serve documents by electronic mail.


Sec.  906.6  Ex parte communications.

    (a) Ex parte communication means any oral or written communication 
about the merits of a pending appeal between one party and the NAO with 
respect to which reasonable prior notice to all parties is not given. 
However, ex parte communication does not include inquiries regarding 
procedures, scheduling, and status.
    (b) Ex parte communication is not permissible unless all parties 
have been given reasonable notice and an opportunity to participate in 
the communication.
    (c) If NAO receives an ex parte communication, NAO shall document 
the communication and any responses thereto in the NAO case record. If 
the ex parte communication was in writing, NAO shall include a copy of 
the communication in the NAO case record. If the ex parte communication 
was oral, NAO shall prepare a memorandum stating the substance of the 
oral communication, and include the memorandum in the NAO case record. 
NAO will provide copies of any such materials included in the NAO case 
record under this paragraph to the parties.
    (d) NAO may require a party to show cause why such party's claim or 
interest in the appeal should not be dismissed, denied, disregarded, or 
otherwise adversely affected because of an ex parte communication.
    (e) NAO may suspend this section during an alternative dispute 
resolution process established by regulation or agency policy.
    (f) Communication with NAO, including appellate officers, 
concerning procedures, scheduling, and status is permissible.


Sec.  906.7  Disqualification of appellate officer.

    (a) An appellate officer shall disqualify himself or herself if the 
appellate officer has a perceived or actual conflict of interest, a 
perceived or actual prejudice or bias, for other ethical reasons, or 
based on principles found in the American Bar Association Model Code of 
Judicial Conduct for Administrative Law Judges.
    (b) Any party may request an appellate officer, at any time before 
the filing of the appellate officer's decision, to withdraw on the 
ground of personal bias or disqualification, by filing a written motion 
with the appellate officer setting forth in detail the matters alleged 
to constitute grounds for disqualification.
    (c) The appellate officer, orally or in writing, shall grant or 
deny the motion based on the American Bar Association Model Code of 
Judicial Conduct for Federal Administrative Law Judges and other 
applicable law or policy. If the motion is granted, the appellate 
officer will disqualify himself or herself and withdraw from the 
proceeding. If the motion is denied, the appellate officer will state 
the grounds for his or her ruling and proceed with his or her review.


Sec.  906.8  Scheduling and pre-hearing conferences.

    (a) NAO may convene a scheduling and/or pre-hearing conference if, 
for example, an appellate officer in his or her discretion finds a 
conference will materially advance the proceeding.
    (b) NAO shall notify the parties in writing 10 days prior to a 
conference unless the Chief of NAO orders a shorter period of time for 
providing notice of conducting a conference. A party may request one 
change in the scheduled pre-hearing date. In determining whether to 
grant the request, NAO will consider whether the requesting party has 
shown good cause for the change in date.
    (c) In exercising his or her discretion whether to hold a 
scheduling and/or pre-hearing conference, an appellate officer may 
consider:
    (1) Settlement, if authorized under applicable law;
    (2) Clarifying the issues under review;
    (3) Stipulations;
    (4) Hearing(s) date, time, and location;
    (5) Identifying witnesses for the hearing(s);
    (6) Development of the NAO case record, and;
    (7) Other matters that may aid in the disposition of the 
proceedings.
    (d) Recording. NAO may record the conference.
    (e) Format. At the discretion of the appellate officer, conferences 
may be conducted by telephone, in person, or by teleconference or 
similar electronic means.
    (f) NAO may issue a written order showing the matters disposed of 
in the conference and may include in the order other matters related to 
the appeal.


Sec.  906.9  Exhibits.

    (a) The parties shall mark all exhibits in consecutive order in 
whole Arabic numbers and with a designation identifying the party 
submitting the exhibit(s).
    (b) Parties shall exchange all exhibits that will be offered at the 
hearing at least 10 days before the hearing.
    (c) Parties shall provide all exhibit(s) to NAO at least 5 days 
before the hearing.
    (d) NAO may modify the timeframe for exchanging or submitting 
exhibits if an appellate officer determines good cause exists.
    (e) NAO may deny the admission into evidence of exhibits that are 
not marked and exchanged pursuant to this rule.
    (f) Each exhibit offered in evidence or marked for identification 
shall be filed and retained in the NAO case record.

[[Page 7063]]

Sec.  906.10  Evidence.

    (a) The Federal Rules of Evidence do not apply to NAO proceedings.
    (b) An appellate officer will decide whether to admit evidence into 
the NAO case record.
    (1) An appellate officer may exclude unduly repetitious, 
irrelevant, and immaterial evidence. An appellate officer may also 
exclude evidence to avoid undue prejudice, confusion of the issues, 
undue delay, waste of time, or needless presentation of cumulative 
evidence.
    (2) An appellate officer may consider hearsay evidence.
    (c) Copies of documents may be offered as evidence, provided they 
are of equal legibility and quality as the originals, and such copies 
shall have the same force and effect as if they were originals. If an 
appellate officer so directs, a party shall submit original documents 
to the appellate officer.
    (d) An appellate officer may take official notice of Federal or 
State public records and of any matter of which courts may take 
judicial notice.
    (e) An appellate officer may request, and the program office that 
issued the initial administrative determination in the case before the 
appellate officer will provide, the interpretation(s) of the law made 
by the program office and applied to the facts in the case.


Sec.  906.11  Hearing.

    (a) Procedures. (1) An appellate officer in his or her discretion 
may order a hearing taking into account the information provided by an 
appellant pursuant to Sec.  906.3(b)(3) and whether an appellate 
officer considers that a hearing will materially advance his or her 
evaluation of the issues under appeal. In exercising his or her 
discretion, an appellate officer may consider whether oral testimony is 
required to resolve a material issue of fact, whether oral presentation 
is needed to probe a party's position on a material issue of law, and 
whether a hearing was held previously for the same appeal. If an 
appellate officer determines that a hearing is not necessary, then the 
appellate officer will base his or her decision on the NAO case record. 
In the absence of a hearing an appellate officer may, at his or her 
discretion, permit the parties to submit additional materials for 
consideration.
    (2) If an appellate officer convenes a hearing, the hearing will be 
conducted in the manner determined by NAO most likely to obtain the 
facts relevant to the matter or matters at issue.
    (3) NAO shall schedule the date, time and place for the hearing. 
NAO will notify the parties in writing of the hearing date, time and 
place at least 10 days prior to the hearing unless the Chief of NAO 
orders a shorter period for providing notice or conducting the hearing. 
A party can request one change in the scheduled hearing date. In 
determining whether to grant the request, NAO will consider whether the 
requesting party has shown good cause for the change in date.
    (4) At the hearing, all testimony will be under oath or affirmation 
administered by an appellate officer. In the event a party or a witness 
refuses to be sworn or refuses to answer a question, an appellate 
officer may state for the record any inference drawn from such refusal.
    (5) An appellate officer may question the parties and the 
witnesses.
    (6) An appellate officer will allow time for parties to present 
argument, question witnesses and other parties, and introduce evidence 
consistent with Sec.  906.10.
    (7) Parties may not compel discovery or the testimony of any 
witness.
    (b) Recording. An appellate officer will record the hearing unless 
the appellant consents to proceed without a recording.
    (c) Format. At the discretion of NAO, hearings may be conducted by 
telephone, in person, or by teleconference or similar electronic means.


Sec.  906.12  Closing the evidentiary portion of the NAO case record.

    (a) At the conclusion of the NAO proceedings, an appellate officer 
will establish the date upon which the evidentiary portion of the NAO 
case record will close. Once an appellate officer closes the 
evidentiary portion of the NAO case record, with or without a hearing, 
no further submissions or argument will be accepted into the NAO case 
record.
    (b) NAO in its discretion may reopen the evidentiary portion of the 
NAO case record or request additional information from the parties at 
any time prior to final agency action.


Sec.  906.13  Failure to appear.

    If any party fails to appear at a pre-hearing conference or hearing 
after proper notice, an appellate officer may:
    (a) Dismiss the case, or;
    (b) Deem the failure of a party to appear after proper notice a 
waiver of any right to a hearing and consent to the making of a 
decision based on the NAO case record.


Sec.  906.14  Burden of proof.

    On issues of fact, the appellant bears the burden of proving he or 
she should prevail by a preponderance of the evidence. Preponderance of 
the evidence is the relevant evidence in the NAO case record, 
considered as a whole, that shows that a contested fact is more likely 
to be true than not true. Appellant has the obligation to obtain and 
present evidence to support the claims in his or her petition.


Sec.  906.15  Decisions.

    (a) After an appellate officer closes the evidentiary portion of 
the NAO case record, NAO will issue a written decision that is based on 
the NAO case record. In making a decision, NAO shall determine whether 
the appellant has shown by a preponderance of the evidence that the 
initial administrative determination is inconsistent with the law and 
regulations governing the initial administrative determination. In 
making a decision, NAO shall give deference to the reasonable 
interpretation(s) of applicable ambiguous laws and regulations made by 
the office issuing the initial administrative determination.
    (b) NAO shall serve a copy of its decision upon the appellant and 
the Regional Administrator. NAO will not provide the case record to the 
Regional Administrator when issuing its decision.


Sec.  906.16  Reconsideration.

    (a) Any party may file a motion for reconsideration of an NAO 
decision issued under Sec.  906.15. The request must be filed with NAO 
within 10 days after service of NAO's decision. A party shall not file 
more than one motion for reconsideration of an NAO decision.
    (b) The motion must be in writing and contain a detailed statement 
of an error of fact or law material to the decision. The process of 
reconsideration is not a forum for reiterating the appellant's 
objections to the initial administrative determination.
    (c) Arguments not raised by a party in his or her motion for 
reconsideration of a decision will be deemed waived.
    (d) In response to a motion for reconsideration, NAO will either:
    (1) Reject the motion because it does not meet the criteria of 
paragraph (a) or (b) of this section; or
    (2) Issue a revised decision and serve a copy of its revised 
decision upon the appellant and the Regional Administrator.
    (e) At any time prior to notifying the Regional Administrator 
pursuant to Sec.  906.17(a), the NAO may issue a revised decision to 
make corrections and serve a copy of its revised decision upon the 
appellant and the Regional Administrator.

[[Page 7064]]

Sec.  906.17  Review by the Regional Administrator.

    (a) If NAO does not receive a timely motion for reconsideration 
pursuant to Sec.  906.16(a), receives a timely motion and rejects it 
pursuant to Sec.  906.16(d)(1), or issues a revised decision pursuant 
to Sec.  906.16(d)(2) or (e), NAO will notify the Regional 
Administrator and the appellant, and provide a copy of the case record 
for its decision or revised decision to the Regional Administrator.
    (b) In reviewing NAO's findings of fact, the Regional Administrator 
may only consider the evidentiary record including arguments, claims, 
evidence of record and other documents of record that were before NAO 
when it rendered its decision or revised decision.
    (c) The Regional Administrator may take the following action within 
30 days of service of NAO's notification and receipt of the case record 
under paragraph (a) of this section:
    (1) Issue a written decision adopting, remanding, reversing, or 
modifying NAO's decision or revised decision.
    (2) Issue a stay for no more than 90 days to prevent NAO's decision 
or revised decision from taking effect.
    (d) The Regional Administrator must provide a written decision 
explaining why an NAO decision or revised decision has been remanded, 
reversed, or modified. Consistent with Sec.  906.18(b), the Regional 
Administrator may, but does not need to, issue a written decision to 
adopt an NAO decision or revised decision.
    (e) The Regional Administrator will serve a copy of any written 
decision or stay on NAO and the appellant.


Sec.  906.18  Final decision of the Department.

    (a) The Regional Administrator's written decision to adopt, 
reverse, or modify an NAO decision or revised decision pursuant to 
Sec.  906.17(c) is the final decision of the Department for the 
purposes of judicial review.
    (b) If the Regional Administrator does not take action pursuant to 
Sec.  906.17(c)(1), NAO's decision issued pursuant to Sec.  906.15(a) 
or revised decision issued pursuant to Sec.  906.16(d)(2) or (e) 
becomes the final decision of the Department for the purposes of 
judicial review 30 days after service of NAO's notification under Sec.  
906.17(a), or upon expiration of any stay issued by the Regional 
Administrator pursuant to Sec.  906.17(c)(2).
    (c) The office that issued the initial administrative determination 
shall implement the final decision of the Department within 30 days of 
service of the final decision issued pursuant to Sec.  906.18(a), or 
within 30 days of the decision becoming final pursuant to Sec.  
906.18(b), to the extent practicable.

[FR Doc. 2014-02565 Filed 2-5-14; 8:45 am]
BILLING CODE 3510-22-P