[Federal Register Volume 59, Number 27 (Wednesday, February 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2871]
[[Page Unknown]]
[Federal Register: February 9, 1994]
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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]
BILLING CODE 3510-22-P
