Unpublished Disposition, 900 F.2d 262 (9th Cir. 1990)

MEMORANDUM^** 

Emerald Seafoods appeals the district court's finding that the Secretary of Commerce did not violate any applicable laws or regulations in promulgating an inseason adjustment establishing quarterly allocations of the pollock fishery in the Gulf of Alaska. Emerald contends that the Secretary's inseason adjustment should be set aside as in excess of his authority and as issued without observance of procedure required by law. We review the judgment of the district court de novo, and affirm.

As a preliminary matter, we find that the district court did not abuse its discretion in certifying this issue for immediate appeal pursuant to Fed. R. Civ. P. 54(b). See Continental Airlines v. Goodyear Tire & Rubber Co., 819 F.2d 1519 (9th Cir. 1987). Accordingly, this court has jurisdiction over this appeal. 28 U.S.C. § 1295.

We find that the Secretary has authority pursuant to 50 CFR Sec. 672.22(a) (1) (iii) & (a) (2) (iii) to make the inseason adjustment at issue. Quarterly allocations do constitute a finding that the specified TAC is incorrect in its temporal aspects. It follows that the Secretary must comply with 50 CFR Sec. 672.22(b) (2), (3), (4) and (5). To the extent that this has not been done, it must be done as expeditiously as possible.

Finally, this court is concerned with the somewhat irregular fashion in which this inseason adjustment was accomplished. However, we rely on the Secretary's representation to the district court that this adjustment is a one time temporary measure designed to prevent the overfishing of pollock stocks, see District Court Order at 6 & n. 3, and, because the record supports a finding of overfishing, the judgment of the district court is AFFIRMED.