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National Marine Fisheries Service, Alaska Regional Office

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05-0010 Crab Rationalization
Issued: 7/21/2008 | Effective: 8/20/2008
Appellant: WILLISCROFT, Douglas
Disposition: Affirmed
Abstract Terms:
    - Crab Rationalization

Abstract:    To Decision »
06-0009 Crab Rationalization
Issued: 7/21/2008 | Effective: 8/20/2008
Appellant: SVASAND, Ernest
Disposition: Affirmed
Abstract Terms:
    - Crab Rationalization

Abstract:    To Decision »
06-0007 Crab Rationalization
Issued: 7/18/2008 | Effective: 8/18/2008
Appellant: PERRY, Michael
Disposition: Affirmed
Abstract Terms:
    - Crab Rationalization

Abstract:    To Decision »
06-0002 Crab Rationalization
Issued: 7/3/2008 | Effective: 8/4/2008
Appellant: MEZICH, Walter
Disposition: Affirmed
Abstract Terms:
    - Crab Rationalization

Abstract:    To Decision »
06-0006 Crab Rationalization
Issued: 7/3/2008 | Effective: 8/4/2008
Appellant: ENGLAND, Jim
Disposition: Affirmed
Abstract Terms:
    - Crab Rationalization

Abstract:    To Decision »
06-0002 Crab Rationalization
Issued: 7/3/2008 | Effective: 8/4/2008
Appellant: MEZICH, Walter
Disposition: Affirmed
Abstract Terms:
    - Crab Rationalization

Abstract:    To Decision »
03-0002 Groundfish/Crab LLP
Issued: 7/1/2008 | Effective: 7/31/2008
Appellant: AGATE PASS PARTNERSHIP, LLP
Disposition: Affirmed
Abstract Terms:
    - LLP Groundfish/Crab

Abstract:    To Decision »
07-0003 Crab Rationalization
Issued: 5/2/2008 | Effective: 6/2/2008
Appellant: APICDA v. SNOPAC
Disposition: Affirmed
Abstract Terms:
    - Crab Rationalization

Abstract:    To Decision »
01-0008 Groundfish/Crab LLP
Issued: 4/4/2008 | Effective: 5/5/2008
Appellant: HIGHLAND LIGHT SEAFOODS, LLC
Disposition: Affirmed
Abstract Terms:
    - LLP Groundfish/Crab

Abstract:    To Decision »
07-0005 North Pacific Groundfish Observer Program
Issued: 4/3/2008 | Effective: 5/5/2008
Appellant: DOE, John
Disposition: Affirmed
Abstract Terms:
    - Observer

Abstract:    To Decision »
06-0015 Crab Rationalization
Issued: 2/11/2008 | Effective: 3/12/2008
Appellant: DEAVER, Dennis
Disposition: Vacated
Abstract Terms:
    - Crab Rationalization

Abstract:    To Decision »
03-0028R Groundfish/Crab LLP
Issued: 2/1/2008 | Effective: 3/1/2008
Appellant: SEABECK, Kevin
Disposition: Affirmed
Abstract Terms:
    - Evidence
    - LLP Groundfish/Crab
    - Eligibility

Abstract:  A Decision was issued in this appeal on December 17, 2007, which affirmed RAM’s determination that Appellant did not qualify for a groundfish license under the License Limitation Program (LLP) based on a written contract relating to the fishing history of the F/V VIEWPOINT (ADF&G No. 19501).

The Decision concluded that Appellant could not qualify for an LLP groundfish license based on a written contract for the sale of the vessel because the contract did not clearly and unambiguously show that Appellant retained the LLP-qualifying fishing history of the vessel when he sold it on March 24, 1991. Apparently the buyer still owned the vessel on June 17, 1995, because he holds the LLP groundfish license for the vessel. That conclusion was based on the fact that the sales contract explicitly retained only fishing history relating to “groundfish I.T.Q.,” which does not exist.

The Appellant filed a timely Motion for Reconsideration. Appellant argued that he had the LLP-qualifying fishing history when he sold the vessel on March 24, 1991; that he clearly retained the LLP-qualifying fishing history under the language of the vessel’s sales contract; and that he should not be prevented from qualifying for an LLP groundfish license based solely on the use of the term “groundfish I.T.Q” in the sales contract. Appellant requested a hearingbut a hearing was not authorized because there were no material facts in dispute, only legal issues, which by regulation cannot be the sole basis for a hearing.

The record contains a copy of an Earnest Money Agreement executed by Appellant and the buyer on March 21, 1991. The agreement, at paragraph 4, provides that “All rights, awards concerning groundfish I.T.Q. shall be retained by seller.”

Appellant stated that “These programs, IFQ or LLP, either didn’t exist [or] were only being proposed or called by different names at the time I sold the Viewpoint.” He also stated that “Since [the] LLP program and name didn’t exist when I sold the boat, it’s more than reasonable and in fact can be the only conclusion, that what turns out to be an award, LLP, was clearly retained by me.” Finally, Appellant wrote that the “factual mistake in your findings is an overly narrow and constricted interpretation based on the fact I didn’t call the rights by a name that didn’t exist at the time.”

The word "retained" suggested that Appellant intended to keep only the fishing history he had already earned by the date of the vessel sale. Appellant appeared to believe that he had earned all the necessary LLP-qualifying fishing history before selling the vessel. That belief was not accurate.

At the time of sale, the vessel did not have complete LLP-qualifying fishing history because the endorsement qualifying period of the LLP did not begin until January 1, 1992, nine months after the vessel was sold. This meant that the language in the sales contract must have clearly and unambiguously shown that Appellant not only retained the GQP fishing history of the vessel, but also obtained buyer's future EQP fishing history of the vessel.

Since any post-sale fishing history would normally be credited to the buyer, the contract must have clearly shown that the buyer agreed to transfer or relinquish any of his own future fishing history that might be necessary for Appellant to qualify for a groundfish license. Nothing of this sort is even suggested by the contract language that the parties used. Giving the contract such an interpretation would be reading too much into the term “groundfish I.T.Q.”

Appellant apparently felt an injustice had been done because he was not getting the benefit of the groundfish harvests he made with the, and because the buyer was given the benefit of those harvests and the LLP groundfish license for that vessel.  To Decision »
07-0004 Crab Rationalization
Issued: 1/11/2008 | Effective: 2/10/2008
Appellant: MEDHAUG, Jan O.
Disposition: Affirmed
Abstract Terms:
    - Crab Rationalization

Abstract:    To Decision »
03-0028 Groundfish/Crab LLP
Issued: 12/17/2007 | Effective: 1/16/2008
Appellant: SEABECK, Kevin
Disposition: Affirmed
Abstract Terms:
    - Eligibility
    - Evidence
    - LLP Groundfish/Crab

Abstract:  The Restricted Access Management (RAM) program issued an Initial Administrative Determination (IAD) that denied Appellant's application for a groundfish license under the North Pacific Groundfish and Crab License Limitation Program (LLP) based on the fishing history of the vessel F/V VIEWPOINT (ADF&G #19501).

To be considered an “eligible applicant” for an LLP groundfish license, an applicant must have demonstrated that the applicant (1) owned a vessel on June 17, 1995, which has LLP qualifying fishing history; or (2) owns the LLP qualifying fishing history of a vessel based on the express terms of a written contract that clearly and unambiguously provides that the qualifications for a license under the LLP have been transferred or retained .

A vessel has LLP qualifying fishing history if it made the requisite documented harvests of groundfish during (1) the general qualifying period, which is January 1, 1988, through June 27, 1992; and (2) the endorsement qualifying period for which the applicant is applying, which would be between January 1, 1992, through June 17, 1995.

RAM denied Appellant's application because he (1) did not own the vessel on June 17, 1995; and (2) did not have a written contract which clearly and unambiguously showed that he owned the LLP qualifying fishing history of the vessel.

Appellant acknowledged that he did not own the vessel on June 17, 1995, but claimed that he owned the LLP qualifying fishing history of the vessel because the language of the earnest money agreement and bill of sale for the vessel clearly and unambiguously showed that he retained all of the LLP qualifying fishing history of the vessel when he sold it on March 24, 1991.

Even though the LLP did not exist in 1991, Appellant could have legally acquired the LLP qualifying fishing history of the vessel at the time of sale. As a matter of law, parties can legally contract with respect to future rights, and interests, property, or licenses that are not yet in existence. There is nothing in the LLP regulations or regulatory history that prohibits, or evidences an intent to prohibit, NMFS from recognizing written contracts executed before the adoption of the LLP.

The language in the earnest money agreement for the sale of the vessel stated that “[a]ll rights, awards, concerning groundfish I.T.Q. shall be retained by seller.” The language in the bill of sale does not mention the vessel’s fishing history, but provides only that the sale of the vessel be in accordance with the terms of the earnest money agreement.

The earnest money agreement did not describe or define “groundfish I.T.Q.” It was presumed that the term “groundfish I.T.Q.” refers to “Individual Transferable Quotas,” which were part of one of the alternative proposals that the Council considered, but did not adopt, in the comprehensive rationalization plan for the management of groundfish in the Bering Sea and Aleutian Islands off Alaska.

Even so, it is not clear from the language in the earnest money agreement and bill of sale that the parties to the sale of the vessel intended for the LLP qualifying fishing history of the vessel to remain in the hands of the seller, Appellant. The documents provided only that “[a]ll rights, awards, concerning groundfish I.T.Q.” be retained by him.

The Decision found that the language in the earnest money agreement and bill of sale for the vessel did not clearly and unambiguously show that Appellant retained the LLP qualifying fishing history of the vessel, when he sold the vessel on March 24, 1991. The only fishing history that he retained was fishing history relating to “groundfish I.T.Q.,” which does not exist.   To Decision »
05-0003 Groundfish/Crab LLP
Issued: 12/17/2007 | Effective: 12/17/2007
Appellant: HAL LEWIS
Disposition: Vacated
Abstract Terms:
    - Eligibility
    - LLP Groundfish/Crab

Abstract:  The Restricted Access Management (RAM) program issued an Initial Administrative Determination (IAD) on February 11, 2005, that denied Appellant's application under the North Pacific Groundfish and Crab license limitation program (LLP) for an LLP groundfish license with a Bering Sea area groundfish endorsement based on the fishing history of the F/V MAKUSHIN.

Appellant satisfied the second definition of “eligible applicant” in 50 C.F.R. § 679.2, which requires ownership of an LLP qualifying fishing history based on the express terms of a written contract. Mr. Dennis Robinson owned the F/V MAKUSHIN on June 17, 1995, and transferred the vessel’s fishing history to Appellant based on the express terms of a written contract. Therefore, Appellant was an eligible applicant for an LLP groundfish license based on the fishing history of the F/V MAKUSHIN.

A reasonable reading of the city’s regulations shows that the City of Unalaska (1) did not acquire ownership, but only legal custody or possession, of the F/V MAKUSHIN when it impounded the vessel on March 20, 1995; (2) was not authorized to sell the vessel until after 90 days of impounding (which in this case would have been June 18, 1995; and (3) sold the F/V MAKUSHIN to Troy LaRue on behalf of the vessel’s owner, Dennis Robinson, at public auction on August 25, 1995. Based on the preponderance of evidence, I find that Dennis Robinson owned the F/V MAKUSHIN on June 17, 1995.

The preamble to the LLP regulations provides that if a vessel is sold after June 17, 1995, and the disposition of the vessel’s fishing history is not mentioned in the contract, it will be presumed that the vessel’s fishing history and LLP license qualification remained with the seller. The language of the City of Unalaska’s regulations, and the public bid award for sale of the F/V MAKUSHIN to Troy LaRue, did not provide for Mr. LaRue to acquire the fishing rights of the vessel when the city sold the vessel to him (at public auction) on August 25, 1995. The Decision found that Dennis Robinson retained ownership of the LLP qualifying fishing history of the F/V MAKUSHIN when the City of Unalaska sold the vessel to Troy LaRue on August 25, 1995.

The North Pacific Fishery Management Council has recommended that NMFS recognize written contracts to the extent practicable. The letters of Mr. Robinson and statement of the Appellant collectively show that Mr. Robinson transferred the fishing history of the F/V MAKUSHIN to Appellant; Mr. Robinson does not want to be paid for the vessel’s fishing history; and Mr. Robinson and Appellant want their arrangement to be considered a written contract for purposes of qualifying Appellant for an LLP license. Even though the transfer of the fishing history of the F/V MAKUSHIN occurred after the close of the LLP application period, the language in the LLP regulations does not limit the time period for the transfer of a vessel’s fishing history.

The Decision concluded that Dennis Robinson transferred the LLP qualifying fishing history of the F/V MAKUSHIN to Appellant based on the express terms of a written contract, and that Appellant was an eligible applicant for an LLP groundfish license based on the fishing history of the F/V MAKUSHIN.  To Decision »
02-0016 Groundfish/Crab LLP
Issued: 12/13/2007 | Effective: 12/13/2007
Appellant: ORLANDO B. BELL
Disposition: Affirmed
Abstract Terms:
    - Landings
    - Endorsements
    - LLP Groundfish/Crab

Abstract:  The Restricted Access Management (RAM) program issued an Initial Administrative Determination (IAD) that approved Appellant’s application under the North Pacific Groundfish and Crab License Limitation Program (LLP) for a groundfish license with an endorsement for the Central Gulf groundfish fishery. The license and endorsement was based on the qualifying fishing history of the catcher vessel, the F/V LINDY. The IAD denied Appellant’s request for LLP groundfish license endorsements for the Bering Sea, Aleutian Islands, Western Gulf of Alaska, and Southeast Outside District of Alaska groundfish fisheries.

To qualify for a Bering Sea groundfish license endorsement, and an Aleutian Islands groundfish license endorsement, Appellant must establish that the vessel made at least one documented harvest of LLP groundfish in each of those endorsement areas between January 1, 1992, and June 17, 1995. To qualify for a Western Gulf of Alaska groundfish license endorsement, and a Southeast Outside District of Alaska groundfish license endorsement, Appellant must establish that the vessel made in each endorsement area at least (1) one documented harvest of LLP groundfish in two separate calendar years during the period January 1, 1992 through June 17, 1995; or (2) four documented harvests of LLP groundfish during the period January 1, 1995 through June 17, 1995.

The official LLP record showed that the vessel did not make the requisite documented harvests of LLP groundfish between 1992 and June 17, 1995, to qualify for a Bering Sea, Aleutian Islands, Western Gulf of Alaska, and Southeast Outside District of Alaska groundfish license endorsement. Appellant claimed that the vessel’s Federal logbook sheets and Pacific cod harvests for halibut bait qualified him for those endorsements; and that he needed the endorsements to survive economically. The Federal logbook sheets of the vessel showed that the vessel caught various kinds of groundfish that were discarded at sea, while longlining for sablefish in the Southeast Outside District of Alaska area during 1994 or 1995. Fish discarded at sea cannot be considered a commercial harvest of fish, and therefore a “documented harvest” of LLP groundfish, for two reasons. First, to constitute a “harvest” under the LLP, the fish must be caught and retained. Fish discarded at sea are not fish that are retained by the fisherman, and therefore cannot be considered a documented harvest. Second, a documented harvest must be the result of commercial fishing. Fish discarded at sea do not enter commerce, and therefore cannot constitute a documented harvest. One of the vessel’s Federal logbook sheets indicates that the vessel may have harvested redbanded rockfish in Southeast Alaska waters on March 20, 1995. Even if that was considered a documented harvest of LLP groundfish, the harvest would still not qualify Appellant for a Southeast Outside District of Alaska endorsement. That is because he has provided no proof that the vessel made any other documented harvests of LLP groundfish in Southeast Alaska waters between 1992 and June 17, 1995.

  To Decision »
03-0008 Groundfish/Crab LLP
Issued: 11/26/2007 | Effective: 12/26/2007
Appellant: YAKUTAT, INC.
Disposition: Affirmed
Abstract Terms:
    - LLP Groundfish/Crab

Abstract:    To Decision »
03-0006 Groundfish/Crab LLP
Issued: 10/31/2007 | Effective: 12/1/2007
Appellant: BLUE GADDUS, LLC
Disposition: Affirmed
Abstract Terms:
    - LLP Groundfish/Crab

Abstract:    To Decision »
06-0018 Halibut/Sablefish IFQ
Issued: 10/26/2007 | Effective: 11/26/2007
Appellant: IVANOFF, Steven M.
Disposition: Affirmed
Abstract Terms:

Abstract:    To Decision »
07-0002R Halibut/Sablefish IFQ
Issued: 10/15/2007 | Effective: 11/14/2007
Appellant: RUTTER, Sigard D.
Disposition: Affirmed
Abstract Terms:
    - Transfer
    - IFQ Account
    - Quota Share Amount

Abstract:  A Decision in this appeal was issued on July 6, 2007. We concluded then that the Restricted Access Management (RAM) Program properly calculated Appellant's 2007 halibut Individual Fishing Quota (IFQ) allocation, and that Appellant was not entitled to an additional 285 pounds of underage adjustment to his 2007 halibut IFQ account.

Appellant filed a Motion for Reconsideration on July 12, 2007. Appellant asserted in the motion that we erred in the Decision with regard to the number of IFQ pounds in dispute. He also alleged in the motion that we disregarded language printed on the Application for Transfer of QS/IFQ form (transfer application) that, he argued, allows him to elect to retain his entire underage from 2006 as an adjustment to his 2007 IFQ allocation.

In a letter subsequent to his motion, Appellant raised additional questions about whether RAM had been inconsistent in its implementation of QS and IFQ transfers and in its interpretation of language in the transfer application form and the accompanying instructions. In particular, Appellant pointed to Block F of the transfer application form and to RAM’s handling of a QS/IFQ transfer and IFQ account underage adjustment several years ago involving his wife, which was the subject of our decision in another appeal.

It is true that Appellant was deprived of some of the underage adjustment he would have received if he had not sold the QS units to the purchaser, but he did receive 72 percent of the underage adjustment, which corresponds to the percentage of QS units that he kept. Losing a proportionate share of an underage (or overage) adjustment is a normal consequence of selling QS without also transferring the corresponding QS/IFQ pounds necessary to make it a complete transfer. We find nothing in the outcome of Appellant's QS transfer or the amount of his 2007 underage adjustment that is contrary to the purposes of the underage regulation.  To Decision »
07-0002 Halibut/Sablefish IFQ
Issued: 7/6/2007 | Effective: 8/6/2007
Appellant: RUTTER, Sigard D.
Disposition: Affirmed
Abstract Terms:
    - IFQ Account
    - Transfer

Abstract:  RAM issued a 2007 fishing permit to Appellant for 12,474 pounds of halibut IFQ. Later, RAM determined that it should have added 736 pounds of underage to Appellant's account and issued a new fishing permit to him for 13,210 pounds of halibut IFQ on February 21, 2007.

Appellant claimed on appeal that his underage adjustment was 285 pounds short, and should be 1,021 pounds. He claimed that his total 2007 IFQ allocation of area 2C halibut should have been 13,495 pounds.

The question of whether RAM properly calculated Appellant's halibut IFQ allocation for the 2007 season depended on whether RAM correctly applied the so-called “underage carryover” provision. Underage refers to the portion of a QS holder’s annual IFQ allocation that was not fished during the season for which it was authorized.

Appellant argued that proration of an underage adjustment between the buyer and seller of QS is arbitrary and capricious. He asserted that there was no underage associated with the block of QS that the buyer purchased. Further, he asserted that the purchaser did not expect to receive any underage adjustment as a result of buying the QS, and that Appellant did not authorize it.

Underage adjustments are governed by regulation, not by the terms of a transfer application or sales agreement. Although 50 C.F.R. §679.40(e) provides that underages of “up to 10 percent of a person’s total annual IFQ account for a current fishing year will be added to that person’s annual IFQ account in the year following determination of the underage,” the regulation also provides that the underage adjustment “will apply to any person to whom the affected IFQ is allocated in the year following determination of an underage.”

In RAM’s view, some of the underage from Appellant's 2006 IFQ account was associated with the block of QS that he sold to the purchaser because a proportionate amount of Appellant's 2006 IFQ pounds had been generated by the block he sold. That the parties to the QS transfer did not expect the purchaser to receive any underage adjustment in 2007 merely shows that neither of them understood how RAM calculates and applies underage adjustments. That Appellant did not authorize the award of an underage adjustment to the purchaser’s 2007 IFQ account is irrelevant, as the parties to a QS transfer did not have the authority to direct RAM how to apply any underage or overage adjustments for the next fishing year.

Appellant was free to withhold from the purchaser all of the 2006 adjustment pounds, along with all of the 2006 IFQ pounds, and he did so.

One factor that may have led to some confusion for the parties is that the transfer application form states that “Pounds transferred includes (sic) a pro-rata share of any underage based on the QS held or transferred UNLESS OTHERWISE INSTRUCTED. That statement in the application, although possibly confusing, did not affect the manner in which RAM calculated and applied underage adjustments for the next fishing year.

The Decision concluded that RAM properly calculated Appellant's halibut IFQ allocation for the 2007 season and that he was not entitled to an additional 285 pounds of underage adjustment to his 2007 IFQ account.  To Decision »
06-0011 Crab Rationalization
Issued: 6/20/2007 | Effective: 7/20/2007
Appellant: TOLVA, Michael L., (Estate)
Disposition: Affirmed
Abstract Terms:
    - Regulations
    - Crab Rationalization
    - Estates

Abstract:  The IAD denied the Estate’s application crew Quota Share (QS) in the Bristol Bay red king crab, Bering Sea Snow crab, Bering Sea Tanner crab, and Pribilof Island red and blue king crab fisheries under the Bering Sea/Aleutian Islands (BSAI) Crab Rationalization Program (CRP), based on Mr. Tolva’s fishing history.

RAM determined that Mr. Tolva did not meet the recent participation requirement of the CRP regulations, and did not qualify for an exemption from recent participation, and, therefore, his estate did not qualify for QS under this program.

According to the IAD, Mr. Tolva did not qualify for crew QS because he did not satisfy the recent participation requirement specified in the CRP regulations, or the exemption from that requirement. Mr. Tolva did not meet the recent participation requirement because did not make the required crab landings in two of the last three crab seasons prior to June 10, 2002. Mr. Tolva died on June 3, 2000.

The Estate disputed RAM’s determination that Mr. Tolva did not qualify for the exemption. Under 50 C.F.R. § 680.40(b)(3)(iii)(C)(2), the recent participation requirement does not apply if “the individual who is otherwise eligible to receive an initial issuance of QS died while working as part of a harvesting crew in any U.S. commercial fishery.” The Estate argued that he died while working as part of a harvesting crew in the Alaska halibut fishery because he was actively involved with the harvesting crew in preparing a vessel for halibut fishing at the time of his death. The Estate argued that “[p]reparing the vessel is part and parcel of the work of a harvesting crew.

We assumed for the sake of our analysis that, in the days just before and up until he died, Mr. Tolva was in Homer helping to prepare the vessel for a halibut fishing trip. The question was whether he was “working as part of a harvesting crew” at the time he died, for purposes of qualifying for the exemption from the recent participation requirement under 50 C.F.R. § 680.40(b)(3)(iii)(C)(2).

Although some of a vessel’s crew members might not be part of the harvesting crew, all who are members of the harvesting crew are necessarily members of the vessel’s crew. The CRP regulations define the word “crew” to mean “[a]ny individual, other than the fisheries observers, working on a vessel that is engaged in fishing.” Thus, to be working as part of a harvesting crew, a person must be working on a vessel that is engaged in fishing. The Magnuson-Stevens Fishery and Conservation Management Act (MSA), whose definitions apply to the CRP, defines “fishing.” Preparing a vessel for a fishing trip, as Mr. Tolva was doing when he died, did not fit any of the meanings in the MSA definition of “fishing.”

When a vessel is being prepared on shore or in port for a fishing trip, such a vessel is not then engaged in fishing, as defined in the MSA. Consequently, work done to prepare a vessel for a fishing trip is not work on a vessel that is engaged in fishing, and an individual doing such work does not meet the definition of “crew” under the CRP.

Since, for purposes of determining eligibility for the recent participation exemption, Mr. Tolva’s work was not crew work, neither can it be considered work of a harvesting crew.

We concluded that Mr. Tolva did not die “while working as part of a harvesting crew” and that he did not meet the eligibility requirements for the recent participation exemption under 50 C.F.R. § 680.40(b)(3)(iii)(C)(2).  To Decision »
05-0006 Crab Rationalization
Issued: 6/4/2007 | Effective: 7/5/2007
Appellant: SPINAK, Scott C.
Disposition: Affirmed
Abstract Terms:
    - Crab Rationalization

Abstract:    To Decision »
01-0031 Halibut/Sablefish IFQ
Issued: 5/11/2007 | Effective: 6/11/2007
Appellant: FALK, Thomas C.
Disposition: Affirmed
Abstract Terms:
    - IFQ Account
    - Lease
    - Quota Share Amount
    - Divorce

Abstract:  The Restricted Access Management (RAM) program issued an Initial Administrative Determination (IAD) that denied Appellant's application for additional halibut and sablefish Quota Share (QS) based on a claimed lease of a vessel during 1984. The issues were did Appellant file a timely claim and appeal for additional halibut and sablefish QS based on the lease of the vessel in 1984, and did Appellant qualify for additional halibut and sablefish QS based on the lease of the vessel in 1984?

One day before the filing deadline, Appellant submitted a signed lease affidavit form to RAM with his Application for QS. He asserted that he had leased the vessel from his father between May 5, 1984, and September 1984. The Decision concluded that in doing so, Appellant made a timely claim for additional QS based on the lease of the vessel in 1984.

In mid-November 1994, RAM issued halibut and sablefish QS to Appellant based on his ownership of two vessels. RAM did not issue additional halibut or sablefish QS to Appellant based on the vessel claimed as leased in 1984. Sixteen months later, Appellant inquired about his claim for QS based on that vessel. RAM told him over the telephone that he needed to produce state fish tickets to substantiate his claim. Five years later Appellant produced records from the International Pacific Halibut Commission for halibut landings made by the vesel from 1975 through 1984. Appellant explained that the reason for the “6 year delay” was due to a “difficult divorce.”

RAM determined that Appellant could not qualify for additional QS based on the lease of the vessel because he had “abandoned” his claim by waiting too long (16 months) to “follow up” on his claim and by waiting too long (close to six years) to submit evidence in support of it.

The IFQ regulations do not require an applicant for QS to restate a timely claim for QS in order to have evidence of the claim considered on appeal. Nor do the IFQ regulations specifically provide for the abandonment of a timely claim for QS. We have said however that a timely claim can be “abandoned” based on an affirmative representation by an applicant for QS. In Richard A. Newby, we concluded that the applicant had not abandoned his original claim for sablefish QS, and did not have to renew his claim to have it considered on appeal, even though he did not inquire about his claim until more than nine years later.

The Decision found that: (1) Appellant submitted a signed lease affidavit form to RAM with his Application for QS in which he asserted that he leased the vessel during 1984. (2) Appellant never told RAM that he had abandoned his claim for QS based on the lease of the vessel. (3) RAM did not notify Appellant that his claim for QS based on the vessel was insufficient, and it not give him 90 days to corroborate his claim with sufficient documentation, before the issuance of QS. (4) Appellant filed an appeal of his claim for QS based on the lease of the vessel within 60 days of a formal written IAD. (5) The halibut landings made by the vessel in 1984 were part of Appellant's highest total legal landings of halibut for five of seven years between 1984 and 1990. (6) The sablefish landings made by the vessel in 1984 cannot be part of Appellant's highest total legal landings of sablefish for five of six years between 1985 and 1990. (7) Appellant's lease affidavit for the vessel 1984 did not satisfy the factual regulatory requirements for conclusive evidence of a vessel lease. (8) The lease affidavit of the vessel is not credible evidence of a vessel lease between Appellant and his father in 1984. (9) Appellant did not produce sufficient evidence that he leased the vessel from his father during 1984.   To Decision »
06-0016 Crab Rationalization
Issued: 5/2/2007 | Effective: 6/1/2007
Appellant: CHRISTENSEN, Walter
Disposition: Affirmed
Abstract Terms:
    - Untimely Applications and Appeals
    - Crab Rationalization

Abstract:  The IAD and a Determination on Reconsideration by RAM denied Appellant's annual application for Individual Fishing Quota for the 2006/2007 Bering Sea crab fisheries under the Crab Rationalization Program because it was submitted after the August 1, 2006, deadline provided in regulation.

The record in this appeal shows that Appellant's application for the annual IFQ permit was received by RAM on August 16, 2006, fifteen days past the filing deadline.

In his appeal, which was received in this office on October 3, 2006, Appellant stated that he was in Alaska “at sea from June to August 10, 2006 running the crab vessel F/V McKinley.” He stated that he flew home to Seattle for two days on July 30, 2006, and that he filled out the IFQ permit application on that date. He also stated that “My wife was supposed to have mailed it and said she did.”

The record on appeal shows that the original of Appellant's application, with his signature dated July 30, 2006, was postmarked at Seattle on August 11, 2006, and received at RAM on August 16, 2006.

Appellant completed his application on July 30, 2006, only two days before the filing deadline. That was a Sunday, when there is normally minimal, if any, mail service. Under those circumstances, even if the application had been mailed at the first opportunity, it likely would not have arrived at RAM’s offices by the August 1 deadline. If it had been faxed or transmitted electronically on that Sunday, Monday, or Tuesday, however, it could have been received at RAM by the deadline. Nonetheless, the evidence in the record shows that the application was not mailed until 12 days after Appellant signed it and 10 days after the filing deadline.

The fact that Appellant relied on his wife to mail the application for him does not excuse his lateness. Nor has Appellant stated facts that would trigger application of the equitable tolling doctrine, i.e., he has not stated extraordinary circumstances beyond his control that prevented him from filing the application by the deadline.

Although denying Appellant an annual IFQ permit because of the missed deadline may have a harsh result, this office does not have any authority to waive or stay the filing deadline. NMFS has adequately stated its need to establish the August 1 annual deadline.

The fact that the annual application deadline was set at a time of year that may be inconvenient for many fishermen is beyond the purview of this appeal. The Decision concluded as a matter of law that Appellant's late application cannot be deemed as having been timely filed, and that RAM properly denied Appellant's application for an annual IFQ permit.  To Decision »
06-0014 Crab Rationalization
Issued: 4/30/2007 | Effective: 5/30/2007
Appellant: COBBAN, Gary D., Jr.
Disposition: Affirmed
Abstract Terms:
    - Crab Rationalization
    - Untimely Applications and Appeals

Abstract:  The IAD denied Appellant's annual application for Individual Fishing Quota for the 2006/2007 Bering Sea crab fisheries under the Crab Rationalization Program because it was submitted two months after the August 1, 2006 deadline provided in regulation.

Under 50 C.F.R. §680.4(f)(1), holders of crab quota share must apply annually for an Individual Fishing Quota (IFQ) permit for the upcoming crab fishing year. The regulation is straightforward and unambiguous, and says in part: If a complete application is not received by NMFS by this date, that person will not receive IFQ or IPQ for that crab fishing year.

On appeal, Appellant did not dispute that his application was late. Rather, he asked that his lateness be excused because he was unaware of the annual application requirement, he was at sea during the entire period April 16-September 24, 2006, and he did not receive application forms in the mail before the August 1 deadline. Appellant, in effect, asked this office to waive the application filing deadline.

The Crab Rationalization Program regulations do not provide any exception to the annual filing requirement. Constructive notice of the August 1 annual deadline and requirement was provided in the Federal Register in March 2005. RAM automatically sends the application forms to current crab quota share holders and then, about two weeks before the August 1 deadline, RAM sends a postcard reminder. Appellant did not mention whether or not received RAM’s postcard reminder.

Appellant claimed that he was at sea every day from April 16 through September 24, 2006, aboard the F/V NEW VENTURE. He also stated that “a wheelhouse fire on July 7 burned the Satphone and computer among other things. I had no working MCC or phone.” The gist of Appellant's argument appeared to be that, because he was at sea and, for at least part of that time was unable to communicate with shore, it would have been impossible, or at least impractical, for him to learn of the annual application filing requirement or to take any action regarding the application if he had learned about it.

Yet, Appellant stated, however, that his wife informed him of the IAD arriving at their home via certified mail and which she signed for on August 18, 2006. Although Appellant did not explicitly say so, it was presumed that he and his wife communicated orally, either by phone or radio: “I had her open it and read it to me, then had her forward it to me.” It was reasonable and prudent for Appellant to rely on his wife to alert him of any business mail he received while he was at sea. The underlying problem in this case was not any lack of communication between Appellant and his wife; rather, it was Appellant's failure to become informed about the regulation requiring annual application.

Although denying Appellant an annual IFQ permit because of the missed deadline may have a harsh result, this office does not have the authority to waive or stay the filing deadline in this case. NMFS has adequately stated its need to establish the August 1 annual deadline (See Decision).   To Decision »
03-0017 Groundfish/Crab LLP
Issued: 2/15/2007 | Effective: 3/12/2007
Appellant: DOUBLEDAY, Morgan
Disposition: Affirmed
Abstract Terms:
    - Divorce
    - Eligibility
    - Evidence
    - LLP Groundfish/Crab
    - Official Record
    - Regulations

Abstract:  Appellant was not an eligible applicant for an LLP license. Eligible applicant is defined in 50 C.F.R. § 679.2. First, according to the Official LLP Record, Appellant did not own the F/V EASTERN on June 17, 1995. Appellant did not claim that he did.

Second, Appellant did not own the LLP-qualifying fishing history of the F/V EASTERN according to the terms of a written contract, or court order, that clearly and unambiguously transfered or retained to him the LLP-qualifying fishing history of the F/V EASTERN. Appellant's agreement with Daryl Knutsen and Don Knutsen, dated December 16, 1989, that F/V EASTERN, Inc., could use Appellant's fishing licenses for three years, did not clearly and unambiguously transfer or retain to Appellant any fishing history of the F/V EASTERN. The Bill of Sale, dated January 3, 1990, which transferred 100% of Appellant's interest in the F/V EASTERN to Daryl Knutsen, did not transfer or retain to Appellant any interest in the fishing history of the F/V EASTERN. The Stock Redemption Agreement, dated February 5, 1992, by which Appellant sold his stock in F/V EASTERN, Inc., back to the corporation, did not transfer or retain to Appellant any interest in the fishing history of the F/V EASTERN.

The statement from Don Knutsen, which Appellant submitted to NMFS in April 1996 to support Appellant's application for a moratorium permit, did not constitute a written contract that clearly and unambiguously transferred or retained to Appellant the LLP-qualifying fishing history of the F/V EASTERN.

The Decision ruled that, for Appellant to prove that he owned the LLP-qualifying fishing history of the F/V EASTERN, he had to submit a contract with both Don Knutsen and Mary Knutsen transferring to him all of their interest in the fishing history of the F/V EASTERN. A Washington State court in Don Knutsen and Mary Knutsen’s divorce decree, entered August 2005, determined that the F/V EASTERN and F/V EASTERN, Inc., were community property and awarded all right, title and interest in the F/V EASTERN and F/V EASTERN, Inc., to Mary Knutsen. But the court was only aware of the Individual Fishing Quota rights flowing from the halibut and sablefish fishing history of the F/V EASTERN and not the LLP license flowing from the groundfish fishing history. The Decision therefore ruled that Mary Knutsen and Don Knutsen, together, had the power to transfer to Appellant the fishing history of the F/V EASTERN.

Appellant sought to leave the record open so he could attempt to extinguish Mary Knutsen’s interest in the F/V EASTERN through a proceeding in a state court and so he could obtain a written contract with Don Knutsen. The administrative judge ruled that Appellant had not shown cause to leave the record open for those purposes and that the record was sufficient to render final judgment, as required by 50 C.F.R. § 679.43(g)(2).   To Decision »
06-0017 Crab Rationalization
Issued: 1/31/2007 | Effective: 3/2/2007
Appellant: SITKIN ISLAND, INC. and NORTHERN ORION, INC.
Disposition: Affirmed
Abstract Terms:
    - Untimely Applications and Appeals
    - Crab Rationalization

Abstract:  On October 6, 2006, the Trustee in the Chapter 7 bankruptcy cases filed by Sitkin Island, Inc., and Northern Orion, Inc., filed this appeal of IADs issued to the corporations on August 7, 2006 by the RAM program. The identically worded IADs denied the corporations’ annual applications for Individual Fishing Quota (IFQ) for the 2006/2007 Bering Sea crab fisheries under the Crab Rationalization Program because the applications were not submitted by the August 1, 2006 deadline provided in regulation.

The record on appeal showed that the corporations principal and sole shareholder should have timely filed the applications. The record showed that the annual IFQ applications for both corporations were filed by the bankruptcy Trustee on October 12, 2006, approximately two and one-half months after the August 1 deadline. The bankruptcy cases were not filed and the Trustee was not appointed until August 11, 2006, after the deadline.

On appeal, it was first determined that the corporations failure to file the applications on time was not legally excusable under the doctrine of equitable tolling, and then it was decided that the corporations’ filings should be not have been deemed timely as a matter of law.

The Appellant acknowledged that the duty to file the IFQ applications for 2006/2007 rested with the corporations and that the obligation was not met. The corporations have offered no affidavit or statement explaining the applications were not filed.

The Decision did not rule out the possibility that an applicant’s financial circumstances could constitute the “extraordinary circumstances” needed to support a claim under the equitable tolling doctrine. It was found only that the Appellant did not meet the burden of proving by a preponderance of the evidence the first element of the equitable tolling claim – that the corporations were prevented by circumstances beyond their control from filing the 2006/2007 IFQ applications by the deadline.

As to the other two elements of the equitable tolling claim, it did appear from the evidence that the bankruptcy Trustee acted diligently in filing the applications, once he learned that corporations had not done so. It also appeared that implementation of the Crab Rationalization Program would not have been harmed or frustrated if the application had been processed by RAM when it was submitted, since RAM reportedly had calculated and set aside the 2006/2007 IFQ in order to be able to perform in the event the Appellant succeeded on appeal. But because the first element of the equitable tolling claim was met, it was concluded as a matter of law that the applications should not be deemed as timely filed.   To Decision »
02-0008B Groundfish/Crab LLP
Issued: 12/20/2006 | Effective: 1/19/2007
Appellant: DONOVICK, Mark
Disposition: Affirmed
Abstract Terms:
    - Eligibility
    - Endorsements
    - LLP Groundfish/Crab
    - Official Record
    - Regulations

Abstract:  Appellant did not meet the endorsement qualification period [EQP] requirement for an Aleutian Islands endorsement on his LLP groundfish license. The EQP requirement for an Aleutian Islands endorsement is one documented harvest of groundfish in the Aleutian Islands between January l, 1992 and June 17, 1995. 50 C.F.R. § 679.4(k)(4)(ii)(A). Appellant submitted no evidence of documented harvests of license limitation groundfish in the Aleutian Islands between January l, 1992 and June 17, 1995.

Appellant did not meet the EQP requirement for a Bering Sea endorsement: one documented harvest of groundfish in the Bering Sea between January l, 1992 and June 17, 1995. 50 C.F.R. § 679.4(k)(4)(ii)(A). To prove he met this requirement, Appellant provided copies of eight State of Alaska fish tickets, and eight catcher vessel daily fishing logs, that show the F/V ROUGHNECK as catching Pacific cod in the Bering Sea between January and March 1993. But neither Appellant nor the vessel operator nor anyone else submitted these fish tickets or logs to the State or Federal Government.

To receive an LLP license, an applicant must prove documented harvests. To determine whether unsubmitted fish tickets or logs can be evidence of documented harvests for purposes of awarding an LLP license, two LLP regulations are relied on. First, an LLP regulation defines documented harvest as “a lawful harvest that was recorded in compliance with Federal and state commercial fishing regulations in effect at the time of harvesting.” 50 C.F.R. § 679.2. Second, an LLP regulation states that “evidence of a documented harvest must be demonstrated by a state catch report, a Federal catch report, or other valid documentation.” 50 C.F.R.§ 679.4(k)(4)(i).,

The Decision concluded that Appellant's unsubmitted fish tickets and catcher vessel daily fishing logs are not evidence of documented harvests because they are not state catch reports, Federal catch reports or other valid documentation of documented harvests. This was not valid documentation because these were not submitted to the State of Alaska or the Federal Government. The failure of a vessel operator who is not the vessel owner to turn in a fish ticket is not, by itself, an extenuating circumstance that excuses a failure to turn in a fish ticket because it is a common practice for a vessel owner to hire someone else to operate the vessel.

The Decision did not address the meaning of “other valid documentation” where the applicant proved extenuating circumstances for failure to turn in a required document, where the applicant turned in an incomplete document or where the applicant turned in one required document but not others.   To Decision »
03-0020 Groundfish/Crab LLP
Issued: 12/20/2006 | Effective: 12/19/2006
Appellant: HARLAN, Joseph W.
Disposition: Affirmed
Abstract Terms:
    - Endorsements
    - Regulations
    - LLP Groundfish/Crab
    - Rehabilitation Act of 1973
    - Unavoidable Circumstances
    - Vessel

Abstract:  Appellant was not eligible for an LLP license under the unavoidable circumstance regulation, which is 50 C.F.R. § 679.4(k)(8)(iv). An applicant seeking relief under this regulation must have harvested groundfish in the area for which the applicant is seeking an endorsement – in this case the Central Gulf – “after the vessel was prevented from participating by the unavoidable circumstance but before June 17, 1995.” 50 C.F.R. § 679.4(k)(8)(iv)(E).

Appellant stated that he did not harvest groundfish in the Central Gulf from the F/V DELIVERANCE in 1991, 1992, 1993, 1994, 1995 and 1996 because he had health problems and was unable to hire a substitute skipper. The F/V DELIVERANCE did not harvest groundfish until January 20, 1997, when Appellant was able to hire a skipper. Since this date is after June 17, 1995, Appellant did not satisfy section (E) of the unavoidable circumstance regulation.

An unavoidable circumstance must be unique, unforeseen and unforeseeable. 50 C.F.R. § 679.4(k)(8)(iv)(B)(2) and (3). The Decision noted that Appellant's health problems were not unforeseen or unforeseeable after the first year and that the need to hire a captain was not a unique, unforeseen or unforeseeable. The Decision noted that Appellant stated that he had hired a captain in 1992 who backed out at the last minute. The Decision did not decide whether that circumstance could be unique, unforeseen and unforeseeable because the applicant did not meet the requirement in section (E) and therefore could not prevail on an unavoidable circumstance claim.

Appellant had a vessel, the F/V TIDINGS, which sank in January 1989. Although the loss of that vessel was an unavoidable circumstance, it did not support Appellant's claim because he did not harvest groundfish between January l, 1988 and February 9, 1992 from the F/V TIDINGS, which is a required by the unavoidable circumstance regulation. Appellant met that requirement with the F/V DELIVERANCE. Therefore, Appellant had to prove that the F/V DELIVERANCE was “lost, damaged, or otherwise unable to participate” in the endorsement qualification period due to an unavoidable circumstance and that the F/V DELIVERANCE, or a replacement vessel for the F/V DELIVERANCE, harvested groundfish in the Central Gulf after that unavoidable circumstance but before June 17, 1995. For purposes of section (E), the relevant unavoidable circumstance was Appellant's inability to hire a skipper, not the sinking of the F/V TIDINGS.

Appellant was not eligible for an LLP license based on the Rehabilitation Act. To be eligible for an LLP license based on the Rehabilitation Act, an applicant must show that, if NMFS made a reasonable accommodation in the requirements of the LLP, the applicant would receive an LLP license. The reasonable accommodation proposed by Appellant was that NMFS should award an applicant an LLP license if the applicant shows that, but for the applicant’s disability, the applicant would have made the harvests necessary for an LLP license.

It was found that this was not a reasonable accommodation for two reasons. First, this would change an essential requirement in the LLP, namely award of an LLP license based on a history of actual harvests. Second, the requirement of owning a vessel with a particular fishing history did not discriminate against disabled persons.  To Decision »
05-0005 Groundfish/Crab LLP
Issued: 11/29/2006 | Effective: 12/29/2006
Appellant: ARCTIC SOLE SEAFOODS, INC.
Disposition: Affirmed
Abstract Terms:
    - LLP Groundfish/Crab
    - Endorsements
    - Evidence

Abstract:  The IAD denied the Appellant’s requested LLP groundfish license area endorsements for the Aleutian Islands, Western Gulf of Alaska, and Central Gulf of Alaska groundfish fisheries, based on the fishing history of the same vessel. The Appellant appealed only the denial of the Central Gulf area groundfish license endorsement.

The IAD stated that the vessel satisfied the GQP requirement, but not the EQP requirement, for the Central Gulf license endorsement. The Appellant claimed on appeal to qualify for the Central Gulf license endorsement based on a documented harvest of groundfish by-catch made while fishing for shrimp in the state waters in 1993.

The LLP regulations require that the Appellant use a state fish ticket, Federal Weekly Production Report, or “other valid documentation” to prove its claim. The Appellant’s state fish ticket showed that the vessel harvested shrimp, which is not LLP groundfish, and caught “trawl waste fish” which, as discarded fish, cannot be considered a commercial harvest of fish and therefore not a documented harvest of groundfish.

An oral hearing was held to determine whether the “trawl waste fish” was incorrectly recorded on the fish ticket. The captain testified that some of the “trawl waste fish” consisted of red rockfish, but his testimony lacked sufficient detail and corroboration to show that the vessel retained and sold, and therefore commercially harvested, the fish. Even so, the fish ticket is not a valid fish ticket because it was not signed by a fish buyer or receiver of fish, or imprinted with a State of Alaska commercial fishing permit card, as required by State of Alaska commercial fishing regulations.

Appellant produced an affidavit from the vessel’s captain, a declaration from a fish buyer/broker, and a bill of lading for a vessel that transported shrimp and red rockfish to Japan. The affidavit and declaration were not made until several years after the harvesting by the vessel in 1993, nor were these written in the performance of one’s duties to record. The bill of lading did not mention the name of the vessel, the gear type used to harvest fish, and the date of harvesting, landing, or reporting of the fish by the vessel. As a result, none of the Appellant’s documents could be considered “other valid documentation” of an LLP groundfish harvest.   To Decision »
06-0012 Crab Rationalization
Issued: 11/20/2006 | Effective: 12/20/2006
Appellant: THOMPSON, David E.
Disposition: Affirmed
Abstract Terms:
    - Untimely Applications and Appeals
    - Crab Rationalization
    - Regulations

Abstract:  The IAD denied Appellant's annual application for Individual Fishing Quota for the 2006/2007 Bering Sea crab fisheries under the Crab rationalization Program because it was received late, two weeks past the filing deadline.

NMFS published notice of the application filing requirement and deadline in the Federal Register on March 2, 2005, giving Appellant constructive notice of the requirements. RAM provided Appellant actual notice of the filing deadline at his address of record on July 15, 2006.

Appellant did not dispute that his application was late. Rather, he asked that his lateness be excused because he did not receive a reminder from RAM until August 15, 2006. Appellant included a color copy of the reminder card that he received, which showed a postmark of July 11, 2006, from Juneau, Alaska. It also showed that the reminder was forwarded to the Appellant at an address in Prescott, Arizona.

Appellant stated that the reminder card was delivered to his post office box in Petersburg, Alaska, on July 15, 2006, and was delivered to his temporary address in Arizona sometime in late July 2006. Appellant asserted that when the reminder card was delivered to his Petersburg address, he was in Dutch Harbor, Alaska, preparing to take a vessel, the M/V LABRADOR, to Seattle. Appellant stated that he set sail for Seattle on July 22 and arrived there on August 3. Appellant said that he arrived in Arizona and actually received the reminder card on August 10, 2006.

Appellant argued that RAM sent the reminder card to him too late to provide adequate notice of the filing deadline and denied him a reasonable opportunity to file his application on time. He asserted that RAM should send out the reminders at least 30 days before the August 1 deadline. Appellant stated that the July 15, 2006, delivery of the reminder card in Petersburg would have allowed him only 11 business days to file his application, and that this is an insufficient amount of time for fishermen, like him, who are away from home fishing or taking care of other business. Appellant stated that if he is denied an IFQ permit for 2006/2007, he will lose almost $100,000 that he expected to make from selling his IFQ this fall, and that such a loss constitutes an extreme and unreasonable penalty for a late application.

The Crab Rationalization Program regulations do not provide any exception to the annual filing requirement. Constructive notice of the August 1 annual deadline and requirement was provided in the Federal Register on March 2, 2005. RAM automatically sent the application forms to current crab quota share holders and then, about two weeks before the August 1 deadline, RAM sent the post card reminder.

While it may be anticipated that fishermen will often be away from home fishing or on other business, that fact does not relieve them of the responsibility to take care of their business affairs, or delegate someone else to take care of them in their absence. As we stated in a previous decision, “Fishing is a highly regulated industry. It is a fisherman’s responsibility to keep informed of applicable regulations.” Appellant asked this office to waive the application filing deadline.

The record indicates that NMFS provided the required notice of the application filing requirement and deadline. Appellant did not state facts that would trigger application of the equitable tolling doctrine, i.e., he did not claim extraordinary circumstances beyond his control that prevented him from filing the application by the eadline. This office does not have authority to waive or stay the filing deadline. NMFS adequately stated its need to establish the August 1 annual deadline.  To Decision »
05-0008 North Pacific Groundfish Observer Program
Issued: 10/31/2006 | Effective: 11/30/2006
Appellant: DOE, Mary
Disposition: Vacated
Abstract Terms:
    - Regulations
    - Observer

Abstract:  A trainee can be denied certification only if the trainee does not meet standards issued in writing at the start of the training. 50 C.F.R. § 679.50(j)(1)(iii)(B)(4)(i); 50 C.F.R. § 679.50(j)(1)(iv)(A).

The written standards given to Appellant stated that trainees had to pass all examinations with a score of 75% or better. Appellant failed the final examination and therefore was properly denied certification. On appeal, she did not seek to be certified. She sought to retake the class.

The issue on appeal is whether NPGOP may exclude Appellant from future training courses. Appellant alleged that she failed the final exam because she was sick during the final week of class. The NPGOP stated that she chose to take the final examination rather than exercise her right to withdraw from the training class.

The administrative judge ruled that NPGOP policy was that a trainee had the right to withdraw from the training course without penalty if the trainee was in good standing when the trainee withdrew and that it was NPGOP policy to inform trainees of that right. The administrative judge concluded that the trainee stated a defense to her failure to withdraw from the training class if NPGOP did not notify Appellant the conditions under which she could withdraw from the class. The administrative judge concluded that the Appellant met the requirements for a hearing under 50 C.F.R. § 679.43(g) and held a hearing to determine if NPGOP informed Appellant that she could withdraw from the class and retake it.

The administrative judge concluded that NPGOP had not proven, by a preponderance of evidence in the record, that it notified Appellant of her right to withdraw from the class either in the introductory lecture given to the whole class or in individual conversations between the trainers and Appellant after she got sick. The administrative judge found that Appellant would have withdrawn from observer training before taking the final exam, if she had known that she could withdraw and retake it. The administrative judge concluded that Appellant should be treated as having withdrawn in good standing from observer training. The administrative judge did not decide whether Appellant violated any other written observer standards since the administrative judge concluded that Appellant should be treated as having withdrawn from the class and since NPGOP stated that Appellant could have withdrawn from the class, notwithstanding any other alleged problems.

The administrative judge did rule that, in determining whether an observer has unresolvable deficiencies under 50 C.F.R. § 679.50(j)(1)(iv)(A), and therefore cannot retake the class, the NPGOP did not abuse its discretion in declining to consider Appellant's performance as an observer in other observer programs.

The administrative judge emphasized that the Decision only removed the IAD as a barrier to Appellant retaking the observer training class. The North Pacific Groundfish Observer Program [NPGOP] was ordered to treat Appellant as though she had withdrawn in good standing from the observer training course. For Appellant to become an observer in the North Pacific Groundfish Observer Program, she still must take and pass the observer training course and meet every other standard specified in federal regulation for observer certification.   To Decision »
02-0015 Groundfish/Crab LLP
Issued: 10/4/2006 | Effective: 11/6/2006
Appellant: GOLDEN FLEECE, INC.
Disposition: Affirmed
Abstract Terms:
    - Regulations
    - Unavoidable Circumstances
    - LLP Groundfish/Crab
    - Official Record

Abstract:  The IAD denied endorsements as a result of the vessel’s fishing history. The issue was whether Appellant qualified for a license endorsement under the unavoidable circumstance provision in the LLP regulations?

The record showed that the vessel made one documented harvest of Western Gulf of Alaska groundfish between January 1, 1992, and June 17, 1995. Appellant did not dispute the record, but claimed that an "unavoidable circumstance" prevented the vessel from making at least one more documented harvest of groundfish between the required dates.

Appellant asserted that it purchased the vessel on November 18, 1994, with the intent of using it to begin fishing for Western Gulf groundfish in January 1995. Not knowing that the vessel was unseaworthy until after it took possession of it, Appellant began discovering significant problems with the vessel that resulted in several months of repairs. The repairs began in mid-December 1994 and lasted until July 23, 1995. Appellant’s “first opportunity” to use the vessel to make the required harvest was in August 1995. The vessel made additional harvests in October 1995, March 1996, and February 1997.

Appellant claimed the circumstance of having an unseaworthy vessel in need of major unexpected repairs constituted an unavoidable circumstance that prevented the Appellant from fishing for the required harvests until August 1995.

The Appellant argued that NMFS had "broad authority" to exempt an applicant from the cut-off date. The language of the regulations did not provide for an exception to the requirement of a documented harvest after an unavoidable circumstance, but before June 17, 1995. RAM interpreted the regulations to require an actual documented harvest after an unavoidable circumstance, but before June 17, 1995. RAM’s practice was reasonable given the plain language, and regulatory history, of the requirement.

The Appellant argued that the documented harvest requirement after an unavoidable circumstance but before June 17, 1995, was not a "mandatory factor" in the unavoidable circumstance provision. The regulatory history in the preamble of the LLP regulations refers to all five paragraphs in the unavoidable circumstance provision as the “criteria ... [that must be] ... met to the satisfaction of NMFS” to qualify an applicant for an LLP groundfish license (or groundfish license endorsement). RAM’s interpretation in this case is consistent with the plain language and regulatory history of the unavoidable circumstance provision. The documented harvest requirement after an unavoidable circumstance but before June 17, 1995, was a “mandatory factor” that must have been met to qualify Appellant for the license endorsement it sought based on an unavoidable circumstance.

The Appellant argued that the “Doctrine of Equitable Tolling” required NMFS to toll the June 17, 1995, deadline in this case for making at least one documented harvest after an unavoidable circumstance. This Office has applied the Doctrine of Equitable Tolling only in appeals that relate to the untimely filing of an application. Appellant’s LLP application was not untimely filed. The Doctrine of Equitable Tolling cannot be used to exempt Appellant from the June 17, 1995, cut-off date.

None of Appellant’s arguments for exemption from the requirement of a documented harvest after an unavoidable circumstance but before June 17, 1995, were persuasive. Appellant did not qualify for a Western Gulf of Alaska groundfish fishery license endorsement under the unavoidable circumstance provision in the LLP regulations.   To Decision »
02-0056 Groundfish/Crab LLP
Issued: 9/14/2006 | Effective: 10/15/2006
Appellant: OLNEY, Virginia
Disposition: Affirmed / Reversed In Part
Abstract Terms:
    - LLP Groundfish/Crab
    - Official Record
    - Regulations
    - Eligibility
    - Evidence

Abstract:  The IAD is affirmed as to the denial of an LLP groundfish license with a Central Gulf and a Western Gulf endorsement. NMFS did not dispute that Appellant met the general qualification period requirement in 50 C.F.R. § 679.4(k)(4)(i) for an LLP groundfish license based on the fishing history of the F/V LUCY O. But the IAD concluded that Appellant did not make a documented harvest of license limitation groundfish in the endorsement qualification period [EQP] for a Western Gulf, Central Gulf or Southeastern Outside endorsement, as required, respectively, by 50 C.F.R. § 679.4(k)(4)(ii)(G), (K) and (O). The endorsement qualification period was January l, 1992 to June 17, 1995.

Appellant withdrew her appeal of the denial of Western Gulf and Central Gulf endorsements. Neither the official LLP record nor Appellant's appeal contained any evidence that the F/V LUCY O harvested license limitation groundfish in the Western Gulf in the EQP. The official LLP record showed that the vessel harvested license limitation groundfish in the Central Gulf in the EQP but the vessel did not have a Federal Fisheries Permit when it made that harvest. The IAD concluded that, since the vessel did not have the required federal permit, the harvest was not a lawful harvest. See Richard Newby, Appeal No. 01-0007 (March 24, 2005). The IAD concluded that the harvest was not a “documented harvest,” which is defined in federal regulation 50 C.F.R. § 679.2 as “a lawful harvest that was recorded in compliance with Federal and state commercial fishing regulations in effect at the time of harvesting.” An applicant can only receive an LLP license based on documented harvests. Appellant did not contest those points on appeal.

With regard to the Southeast Outside Area endorsement, an applicant must have made at least one documented harvest of license limitation groundfish in the EQP “in the Southeast Outside District or in waters shoreward of that district.” 50 C.F.R. § 679.4(k)(4)(ii)(O). On appeal, Appellant proved by a preponderance of evidence that the F/V LUCY O made a documented harvest of license limitation groundfish in State waters shoreward of the Southeast Outside District on June 12, 1993 that was properly recorded on fish ticket J93 039465. Appellant showed that the official LLP record incorrectly attributed that harvest to the F/V JOHNNY ROGER, Appellant's other vessel, and that the official LLP record of the fishing history of the F/V LUCY O should be amended to reflect that harvest.   To Decision »
03-0029 Groundfish/Crab LLP
Issued: 7/3/2006 | Effective: 8/2/2006
Appellant: PARNELL, William F.
Disposition: Affirmed
Abstract Terms:
    - Rehabilitation Act of 1973
    - Eligibility
    - LLP Groundfish/Crab

Abstract:  Appellant applied for an LLP groundfish license with a Central Gulf endorsement based on the fishing history of the F/V MOCCASIN and on section 504 of the Rehabilitation Act. Federal regulation 50 C.F.R. § 679.2 defines the three ways that Appellant could be eligible for an LLP license. Appellant was not eligible for an LLP license under any of those provisions.

First, Appellant did not own the F/V MOCCASIN on June 17, 1995. Second, even if Mr. Parnell owned the entire fishing history of the F/V MOCCASIN, the F/V MOCCASIN did not make the harvest in the endorsement qualification period that is required for a Central Gulf endorsement pursuant to 50 C.F.R. § 679.4(k)(4)(ii)(H). Third, Appellant was not eligible for an LLP license based on the Rehabilitation Act. Appellant was denied an LLP license, not because of any physical disability, but because he did not meet an essential eligibility requirement for an LLP license: ownership of a vessel on June 17, 1995 that made the harvests necessary for an LLP license or ownership of a qualifying fishing history apart from the vessel.   To Decision »
04-0008R North Pacific Groundfish Observer Program
Issued: 6/12/2006 | Effective: 6/12/2006
Appellant: JANE DOE (Reconsideration)
Disposition: Affirmed
Abstract Terms:
    - Observer
    - Regulations

Abstract: 

I affirm the IAD and affirm the decertification of Ms. Doe as an observer. The IAD found eight areas where Ms. Doe did not perform assigned duties as described in the observer Manual or other written instructions to observers, as required by 50 C.F.R. 679.50(j)(2)(ii)(A).

The NPGOP proved five allegations. First, Ms. Doe did not complete the Vessel Safety Checklist. Second, Ms. Doe did not meet the standard for frequency of hook counts on a longline vessel, which is the basis for the estimate of the overall total catch [OTC] of the vessel. Third, Ms. Doe did not properly tare the scale – account for the weight of the basket in which she weighed fish – because she did not record her calculations in writing. Fourth, Ms. Doe did not meet sampling requirements for calculations of average weight of fish that the vessel caught.

Fifth, Ms. Doe’s sampling data had discrepancies between data sources and these discrepancies violated an observer’s duty to accurately record sampling data. This was the difference between the original Decision, dated January 3, 2006, and the Decision on Reconsideration. The original Decision concluded that the NPGOP had not proven that the data discrepancies violated a written observer duty. On reconsideration, the administrative judge concluded that the Observer Manual, read in conjunction with 50 C.F.R. 679.50(j)(2)(ii)(B) (“Observers must accurately record their sampling data.”), establishes that [1] observers must accurately record their sampling data and [2] the usual definition of “accurate” as “free from error or mistake” is the proper definition of accurately in this context. The number and seriousness of an observer’s errors come into play in reviewing whether the NPGOP reasonably concluded that the violations of written standards constitute a severe deficiency in the observer’s work.

The NPGOP did not prove three allegations in the IAD. First, the NPGOP did not prove that Ms. Doe failed to meet a written observer standard through inappropriate content in the Daily Notes section of her logbook. Second, although the NPGOP proved that Ms. Doe did not retain at least six original deck sheets, the NPGOP did not prove that Ms. Doe’s actions violated a written observer standard. Third, the NPGOP did not prove that the Manual or other written instructions established a clear written standard for collection of halibut injury data that Ms. Doe violated.

The NPGOP did not abuse its discretion in concluding that Ms. Doe’s work showed severe deficiencies and that decertification was warranted under 50 C.F.R. 679.50(j)(3)(iii), based on the following facts. The hook count standard and the size for species composition samples are clearcut standards in the Manual that Ms. Doe knew, that she understood and that she did not meet by a wide margin. Ms. Doe had been warned during the prior cruise, and during the mid-cruise debriefing for this cruise, that she needed to meet the standard for frequency of hook counts, i.e., two hook counts per week. Ms. Doe did not communicate through the Daily Notes, e-mails to her inseason advisors or the Vessel and Plant Survey that she had problems meeting the standard for hook counts or the species composition samples. Ms. Doe’s substandard performance led to a significant amount of unreliable data: the overall total catch data and the species composition data for the cruise were unreliable.

Ms. Doe made three arguments to show mitigating circumstances: [1] her health; [2] her performance as a State observer; [3] her belief that she could correct her mistakes in the future. The NPGOP did not abuse its discretion in rejecting these claims of mitigating circumstances and concluding that decertification was warranted.

  To Decision »
04-0004 Groundfish/Crab LLP
Issued: 5/26/2006 | Effective: 6/26/2006
Appellant: FALK, Thomas and FALK, Deborah
Disposition: Affirmed
Abstract Terms:
    - Endorsements
    - LLP Groundfish/Crab
    - Divorce
    - Eligibility

Abstract:  Thomas and Deborah Falk do qualify for an LLP groundfish license with area endorsements for Bering Sea, Western Gulf and Central Gulf based on the fishing history of the F/V ARGO. Thomas and Deborah Falk do not qualify for an Aleutian Islands endorsement and a Southeast Outside endorsement on their LLP license.

To receive an Aleutian Islands endorsement, a vessel must have harvested license limitation groundfish in the Aleutian Islands subarea between January l, 1992 and June 17, 1995. To receive a Southeast Outside endorsement, a vessel must have harvested license limitation groundfish in Southeast Outside District between January l, 1992 and June 17, 1995. According to the official LLP record, the F/V ARGO harvested no license limitation groundfish in the Aleutian Islands or Southeast Outside between January l, 1992 and June 17, 1995.

Mr. Falk’s evidence that he caught halibut does not support his claim for an LLP license. Halibut is not a license limitation groundfish and does not count toward an LLP license. Halibut caught in certain years entitled the vessel owner, or in certain cases the vessel lessee, to quota share in the Individual Fishing Quota or IFQ program.

Thomas Falk and Deborah Falk, together, are the eligible applicants for the LLP license based on the fishing history of the F/V ARGO. Thomas Falk and Deborah Falk owned the F/V ARGO jointly on June 17, 1995. The parties’ Decree of Dissolution awarded to Thomas Falk “the fishing moratorium asset.” The Decree of Dissolution does not meet the requirement of federal regulation 50 C.F.R. § 679.2 for Thomas Falk to be an eligible applicant based on ownership of the F/V ARGO fishing history apart from the vessel. The Decree does not constitute a written contract that, by its express terms, transfers clearly and unambiguously the F/V ARGO’s LLP-qualifying fishing history to Thomas Falk.   To Decision »
04-0002R Groundfish/Crab LLP
Issued: 5/25/2006 | Effective: 6/25/2006
Appellant: JAMIE MARIE., INC.- Order Denying Motion For Reconsideration
Disposition: Denied
Abstract Terms:
    - Estoppel

Abstract:  A Decision was issued in this appeal on April 13, 2006 that affirmed the IAD. In the Decision it was explained that government estoppel is an extraordinary remedy that is reserved only for situations of serious injustice because, by accepting a claim of estoppel, NMFS would be prevented from judging Appellant's application according to published regulations and according to the same rules by which it judged all other LLP applicants. The Administrative Judge concluded that Appellant did not meet five requirements, each of which an applicant must meet to prevail on a claim of government estoppel.

Appellant filed a timely motion for reconsideration of the Decision on April 24, 2006. An order was issued staying the effective date of the Decision on April 25, 2006.

In its motion, Appellant agreed with the Decision’s statement of the requirements for estoppel: “The criteria for estoppel have been accurately described in the Decision.” Appellant argued that the Decision overlooked that Appellant met the requirements for estoppel. The Administrative Judge concluded that the Decision did not overlook or misunderstand any argument or evidence that showed that Appellant met the requirements for estoppel. Therefore, the motion was denied and June 25, 2006 was established as the new effective date of the Decision.  To Decision »
03-0009 Groundfish/Crab LLP
Issued: 5/19/2006 | Effective: 6/19/2006
Appellant: BEAGLE ENTERPRISES, L.P.
Disposition: Affirmed
Abstract Terms:
    - Official Record
    - Regulations
    - Eligibility
    - LLP Groundfish/Crab

Abstract:  Beagle Enterprises, L.P., did not qualify for a Western Gulf endorsement on LLP license LLG 4360. LLG 4360 has a catcher/processor vessel designation. An applicant qualified for a Western Gulf endorsement on an LLP license with a catcher/processor vessel designation if either [1] the applicant’s vessel made one documented harvest in each of any two calendar years in the Western Gulf between January l, 1992 and June 17, 1995, under 50 C.F.R. § 679.4(k)(4)(ii)(E), or [2] the vessel made four documented harvests in the Western Gulf between January l, 1995 and June 17, 1995, under 50 C.F.R. § 679.4(k)(4)(ii)(F).

Beagle offered no evidence or argument that the official LLP record was incorrect and that it made one documented harvest in each of two calendar years in the Western Gulf between January l, 1992 and June 17, 1995. Beagle therefore did not qualify for a Western Gulf endorsement on LLG 4360 under 50 C.F.R. § 679.4(k)(4)(ii)(E).

The dispute was whether Beagle qualified for a Western Gulf endorsement under 50 C.F.R. § 679.4(k)(4)(ii)(F). To distinguish between catcher/processor vessels that made one, two, three or four documented harvests in the Western Gulf between January l, 1995 and June 17, 1995, NMFS credited one documented harvest to a catcher/processor vessel for each week that the vessel harvested groundfish. Beagle harvested groundfish in the Western Gulf in one week in 1995 and recorded that activity on a Weekly Production Report dated May 6, 1995. NMFS concluded that Beagle made one documented harvest between January l, 1995 and June 17, 1995.

Beagle argued that a catcher/processor vessel made one documented harvest for every haul that a catcher/processor vessel made and recorded, and that it made four documented harvests between January l, 1995 and June 17, 1995.

I concluded that the number of weeks of harvesting activity by a catcher/processor vessel is a reasonable interpretation of the four documented harvest requirement in 50 C.F.R. § 679.4(k)(4)(ii)(F). The language of the LLP regulations, standing alone, is ambiguous and allows NMFS’s or Beagle’s interpretation. The LLP regulations do not refer to a week as the criterion for a documented harvest, which was NMFS’s interpretation, or a haul, which was Beagle’s. NMFS used the standard for a documented harvest that the North Pacific Fishery Management Council used to analyze the LLP and recommend it to the Secretary. NMFS’s interpretation furthers the purpose of 50 C.F.R. § 679.4(k)(4)(ii)(F), which was to prevent a catcher/processor vessel from remaining in the Western Gulf based on harvesting activity in the last five and a half months of the EQP, which was possibly opportunistic and speculative and which did not represent a commitment to participate in that fishery. NMFS evaluated documented harvests for catcher/processors according to the weekly production reports, which are documents that NMFS used to create the official LLP record.

In the alternative, Beagle requests a Western Gulf endorsement as a catcher vessel. Beagle sought a catcher/processor vessel designation for the Central Gulf and the Bering Sea and a catcher vessel designation for the Western Gulf. NMFS does not have authority to do that. The LLP license itself has one vessel designation: either a catcher vessel designation or a catcher/processor vessel designation. An LLP license is not assigned a vessel designation area-by-area. An LLP license cannot have a catcher vessel designation for one area and a catcher/processor vessel designation for other areas.

The LLP regulation does permit a license holder to make a one-time permanent change in vessel designation. Thus, Beagle could change LLG 4360 from a catcher/processor vessel designation to a catcher vessel designation. Beagle would then qualify for Western Gulf, Central Gulf and Bering Sea endorsements but it could only operate as a catcher vessel.  To Decision »
02-0033 Groundfish/Crab LLP
Issued: 4/24/2006 | Effective: 5/24/2006
Appellant: JACOBSEN, Dick
Disposition: Affirmed
Abstract Terms:
    - Official Record
    - Evidence
    - LLP Groundfish/Crab

Abstract:  The issue was whether Mr. Jacobsen’s LLP groundfish license qualified to be designated for trawl and non-trawl gear, based on the fishing history of the F/V MS INGRID? On September 24, 2001, the National Marine Fisheries Service (NMFS) published a new LLP regulation that required an applicant’s LLP groundfish license to be designated with one of three gear types: trawl gear, trawl and non-trawl gear, or non-trawl gear.

To qualify an LLP groundfish license for a trawl and non-trawl gear designation, the vessel that qualified the applicant for the license (known as the “qualifying vessel”) must have harvested LLP groundfish or crab with trawl and non-trawl gear between January 1, 1988, and June 17, 1995.

The record showed that the vessel that qualified Mr. Jacobsen for his LLP groundfish license (LLG1427) was the F/V MS INGRID (ADFG 25187; USCG 563238), and that the vessel harvested LLP groundfish or crab between January 1, 1988, and June 17, 1995, but only with trawl gear.

On appeal, Mr. Jacobsen produced two fish tickets to show that the F/V MS INGRID harvested Pacific cod with non-trawl gear between January 1, 1988, and June 17, 1995. Both fish tickets record that the vessel harvested Pacific cod with non-trawl gear, but the fish tickets did not show that the fish were harvested or landed between January 1, 1988, and June 17, 1995. The first fish ticket (G99016805) did not show the date of the harvest or landing of the fish, but it did show that the buyer received the fish on March 5, 2000. The second fish ticket (G99016597) also did not show the date of the harvest or landing of the fish, but it did show that the F/V MS INGRID began fishing Pacific cod on March 12, 2000, and that the buyer received the fish the following day, March 13, 2000. Neither of the fish tickets recorded that the F/V MS INGRID harvested groundfish with non-trawl gear between January 1, 1988, and June 17, 1995.

Mr. Jacobsen did not produce any other proof to show that the F/V MS INGRID harvested LLP groundfish or crab with non-trawl gear between January 1, 1988, and June 17, 1995. Mr. Jacobsen’s LLP groundfish license did not qualify to be designated for trawl and non-trawl gear, based on the fishing history of the F/V MS INGRID.   To Decision »
03-0027 Groundfish/Crab LLP
Issued: 4/19/2006 | Effective: 5/19/2006
Appellant: PROWLER, LLC
Disposition: Affirmed
Abstract Terms:
    - LLP Groundfish/Crab
    - Regulations
    - Unavoidable Circumstances
    - Eligibility

Abstract:  Prowler, LLC, was not entitled to a Pacific cod endorsement on LLG 3773 based on the fishing history of the F/V PROWLER.

Prowler received LLP license LLG 3773 based on its ownership of the fishing history of the F/V RESPONSE. The F/V RESPONSE had a fire, and then was intentionally sunk, in May 1993. Prowler wanted to receive a Pacific cod endorsement on LLG 3773, based on Pacific cod harvests from a different vessel, the F/V PROWLER. NMFS could not do this because Prowler had received a Pacific cod endorsement on another license – LLG 3676 – based on the fishing history of the F/V PROWLER.

Prowler argued that it met the eligibility requirement for the Pacific cod endorsement in 50 C.F.R. § 679.4(k)(9)(ii)(C): at least 270 metric tons of Pacific cod harvested in the BSAI in any one of the years 1996 through 1999 with hook-and-line gear. Prowler had two moratorium permits from September 1997 through December 31, 1999. The F/V PROWLER harvested approximately 2,200 metric tons of Pacific cod in the years 1997, 1998 and 1999. Prowler wanted to attribute half of the F/V PROWLER’s harvest to LLG 3676 and half to LLG 3773.

Prowler could not do that because [1] the requirement of “at least 270 metric tons” is a minimum requirement, [2] no LLP regulation authorized NMFS to divide Pacific cod catch between LLP licenses and [3] the result would be two Pacific cod endorsements, and therefore two vessels in the Pacific cod fishery, whereas before there had only been one vessel in that fishery. This result would frustrate the purpose of the LLP and the Pacific cod endorsement, is inconsistent with the basic structure of the Vessel Moratorium Program and the LLP and would have violated the specific regulatory prohibition in 50 C.F.R.§ 679.4(k)(9)(F)(3).

Prowler argued that it met the hardship provision for a Pacific cod endorsement in 50 C.F.R. § 679.4(k)(9)(v)(B). Prowler did not meet 50 C.F.R. § 679.4(k)(9)(v)(B)(4) because that provision requires that the license holder harvest Pacific cod “aboard the vessel that was used as the basis of eligibility for the license holder’s groundfish license after the vessel was prevented from participating by the unavoidable circumstance but before April 16, 2000.”

Prowler did not harvest Pacific cod by April 16, 2000 from the F/V RESPONSE, which was the vessel that was used as the basis of Prowler’s eligibility for LLG 3676. It was not decided whether a license holder could ever satisfy (B)(4) with a Pacific harvest from a vessel other than the original qualifying vessel because Prowler clearly could not satisfy (B)(4) with a harvest from the F/V PROWLER because Prowler has used the Pacific cod harvests from the F/V PROWLER for a Pacific cod endorsement on LLG 3676. NMFS does not have the authority to divide a vessel’s fishing history between two LLP licenses under the standard eligibility provision or the hardship provision.   To Decision »
04-0002 Groundfish/Crab LLP
Issued: 4/13/2006 | Effective: 5/15/2006
Appellant: JAMIE MARIE, INC.
Disposition: Affirmed
Abstract Terms:
    - Unavoidable Circumstances
    - Estoppel

Abstract: 

The Appellant did not meet the requirements in federal regulation for an LLP groundfish license. Appellant acknowledged this but argued that NMFS should be estopped, or prevented, from applying the LLP regulations to its application.

Appellant stated that it relied on representations by a NMFS employee in 1991 that halibut would be considered a groundfish for purposes of receiving a limited access groundfish license and, as a result, did not harvest Pacific cod in 1992 and did not meet the requirements for an LLP groundfish license. Appellant's statement of the facts was assumed to be true. Even assuming that, Appellant did not meet five requirements for government estoppel. Any one of these deficiencies bars Appellant from relief.

First, Appellant was not ignorant of the true facts, namely that in 1991 and 1992, it did not need a limited access license to harvest Alaska groundfish and NMFS had not established requirements for a limited access license that it might need to harvest groundfish in the future.

Second, Appellant's reliance on a NMFS employee’s statement was unreasonable for the purpose of preventing NMFS from applying the rules that the Secretary of Commerce adopted for an LLP license. An applicant cannot rely, or assume, that government will adopt, without change, a proposal for requirements for a license to participate in a limited access fishery.

Third, if a NMFS official told Appellant that it would definitely receive a license before the government had adopted regulations for the license – no matter what the public said in response to a proposed rule, no matter what the Secretary of Commerce said in its legal review of the rule – the government official was clearly acting outside the scope of his authority.

Fourth, NMFS did not commit affirmative misconduct. At most, the NMFS employee’s private statements to Appellant were mistaken, careless or negligent. These statements come nowhere close to constituting affirmative misconduct. NMFS’s public actions are that it proposed a regulation that defined halibut as a qualifying species for the Vessel Moratorium Program and withdrew the proposed rule when it determined, and the Secretary concurred, that the proposed rule violated the national standards in the Magnuson-Stevens Act. The North Pacific Fishery Management Council [Council] and NMFS then proposed, and the Secretary approved, a VMP regulation in 1995, and an LLP regulation in 1998, under which Appellant did not qualify for a limited access license. None of these actions constitute misconduct of any kind.

Fifth, estoppel is not necessary to avoid serious injustice. When a fishery goes from open access fishery to limited access, a vessel owner is not entitled to know the rules for participation in the limited access fishery, before the government adopts those rules through the process specified in the Administrative Procedure Act and the Magnuson-Stevens Act. It did not cause serious injustice to evaluate Appellant's application by the rules that the Secretary adopted for LLP licenses in 1998 and that NMFS applied to all other applicants for an LLP license.  To Decision »
04-0001 Groundfish/Crab LLP
Issued: 1/20/2006 | Effective: 2/19/2006
Appellant: SOLSTICE, INC.
Disposition: Affirmed
Abstract Terms:
    - Endorsements
    - LLP Groundfish/Crab
    - Regulations
    - Unavoidable Circumstances

Abstract:  The IAD denied the license because the vessel did not make a documented harvest of groundfish in either the Bering Sea/Aleutian Islands [BSAI] or the Gulf of Alaska in the basic general qualification period [GQP] for an LLP groundfish license, which was January l, 1988 through June 27, 1992.

Apellant did not argue that the vessel made such a harvest, but argued it should receive credit under the unavoidable circumstance provision because the owner began construction of the vessel in January 1991, expected to finish construction by April 1992, but unanticipated construction delays the vessel to not be finished until January 1993.

Appellant did not qualify for an LLP license based on the unavoidable circumstance regulation, 50 C.F.R. § 679.4(k)(8)(iv), because it did not make a documented harvest of groundfish between January l, 1988 and February 9, 1992, as required by the first sentence of the regulation. NMFS lacks authority to issue an LLP license by combining the general qualification period [GQP] fishing history of another vessel with the endorsement qualification period [EQP] fishing history of the principal vessel. To receive an LLP license, the same vessel must have made the GQP and EQP documented harvests.

Appellant did not qualify for an LLP license based on its claim that, as a matter of sound policy, fairness and justice, its application should be granted. The LLP regulations grant licenses based on an objective standard of a vessel’s documented harvests, subject to the limited exception of the unavoidable circumstance regulation. The LLP regulations do not give NMFS the authority to grant an LLP license based on an administrative judge’s subjective determinations of sound policy, fairness and justice.

Appellant did not qualify for an LLP license based on its claim that the LLP violates the Administrative Procedure Act [APA] because NMFS did not consider vessel safety.

The vessel did not participate in any fishery until January 1993. The vessel did not qualify for an LLP license under the standard requirements for documented harvests or the unavoidable circumstance requirements. The Secretary of Commerce did not adopt a regulation that exempted a vessel from meeting the standard requirements and the unavoidable circumstance requirements for any reason, including that the new vessel was a safer vessel than the prior vessel and the entry of the new vessel into the fishery was delayed by financial difficulties.

Appellant argued that the LLP itself was unwise because it did not consider vessel safety in the manner that Appellant thinks the Council and NMFS should have considered vessel safety.

Appellant did not qualify for an LLP groundfish license based on its claim that the LLP is arbitrary and capricious and violates the Administrative Procedure Act. The Administrative Judge has the duty to interpret and apply the regulations, but does not have the authority to change them. The regulations were adopted according to the detailed process for public, Council and NMFS participation in the Magnuson-Stevens Fishery Conservation and Management Act. The Magnuson-Stevens Act provides for judicial review of regulations adopted under it, if a petition for review is filed [1] in federal court within 30 days after the date on which the regulations are promulgated or the action is published in the Federal Register. This proceeding was not before a federal court and was not filed within 30 days after the LLP regulations were promulgated.  To Decision »
04-0008 North Pacific Groundfish Observer Program
Issued: 1/3/2006 | Effective: 1/3/2006
Appellant: JANE DOE
Disposition: Affirmed
Abstract Terms:
    - Observer
    - Regulations

Abstract: 

I affirm the IAD and affirm the decertification of Ms. Doe as an observer. The IAD found eight areas where Ms. Doe did not perform assigned duties as described in the observer Manual or other written instructions to observers, as required by 50 C.F.R. 679.50(j)(2)(ii)(A).

The NPGOP proved five allegations. First, Ms. Doe did not complete the Vessel Safety Checklist. Second, Ms. Doe did not meet the standard for frequency of hook counts on a longline vessel, which is the basis for the estimate of the overall total catch [OTC] of the vessel. Third, Ms. Doe did not properly tare the scale – account for the weight of the basket in which she weighed fish – because she did not record her calculations in writing. Fourth, Ms. Doe did not meet sampling requirements for calculations of average weight of fish that the vessel caught.

The NPGOP did not prove four allegations in the IAD. First, the NPGOP did not prove that Ms. Doe failed to meet a written observer standard through inappropriate content in the Daily Notes section of her logbook. Second, although the NPGOP proved that Ms. Doe did not retain at least six original deck sheets, the NPGOP did not prove that Ms. Doe's actions violated a written observer standard. Third, the NPGOP did not prove that the Manual or other written instructions established a clear written standard for collection of halibut injury data that Ms. Doe violated.

Fourth, although the NPGOP proved that Ms. Doe's data had discrepancies between different sources, the NPGOP did not prove that the quantity or quality of these discrepancies violated the observer's duty to make a reasonable level of accurate calculations. [Note: the Decision on Reconsideration, dated June 12, 2006, changed this fourth conclusion. The Decision on Reconsideration concluded that the NPGOP Observer Manual, construed in light of federal regulation 50 C.F.R. 679.50(j)(2)(ii)(B)("Observers must accurately record their sampling data"), imposes a duty of 100% accuracy on observers that the observer violates by one error in recording data. The Decision on Reconsideration noted, however, that the quantity and quality of data discrepancies in an observer's work affects whether the NPGOP reasonably concluded that the observer's work was characterized by severe deficiencies.]

The NPGOP did not abuse its discretion in concluding that Ms. Doe's work showed severe deficiencies and that decertification was warranted under 50 C.F.R. 679.50(j)(3)(iii), based on the following facts. The hook count standard and the size for species composition samples are clearcut standards in the Manual that Ms. Doe knew, that she understood and that she did not meet by a wide margin. Ms. Doe had been warned during the prior cruise, and during the mid-cruise debriefing for this cruise, that she needed to meet the standard for frequency of hook counts, i.e., two hook counts per week. Ms. Doe did not communicate through the Daily Notes, e-mails to her inseason advisors or the Vessel and Plant Survey that she had problems meeting the standard for hook counts or the species composition samples. Ms. Doe's substandard performance led to a significant amount of unreliable data: the overall total catch data and the species composition data for the cruise were unreliable.

Ms. Doe made three arguments to show mitigating circumstances: [1] her health; [2] her performance as a State observer; [3] her belief that she could correct her mistakes in the future. The NPGOP did not abuse its discretion in rejecting these claims of mitigating circumstances and concluding that decertification was warranted.

  To Decision »
01-0027 Groundfish/Crab LLP
Issued: 10/18/2005 | Effective: 11/17/2005
Appellant: NEW ERA PARTNERSHIP
Disposition: Vacated
Abstract Terms:
    - Evidence
    - LLP Groundfish/Crab
    - Endorsements
    - Official Record

Abstract:  New Era Partnership appealed an Initial Administrative Determination [IAD] that the Restricted Access Management Program [RAM] issued on September 4, 2001, under the North Pacific Groundfish and Crab License Limitation Program [LLP]. New Era applied for an LLP crab license and five area/species endorsements, based on the fishing history of the F/V ALEUTIAN NO. 1 (ADFG 05992, USCG No. 611139), a catcher vessel with a length overall of 126 feet. The IAD determined that New Era qualified for a transferable LLP crab license with four endorsements: Pribilof Islands red and blue king crab, Bristol Bay red king crab, St. Matthew blue king crab, and Bering Sea/Aleutian Islands [BSAI] C. opilio and C. bairdi (Tanner) crab. The IAD determined that New Era did not qualify for an Aleutian Islands [AI] brown king crab endorsement. On appeal, New Era did not challenge the denial of the AI brown king crab endorsement.

New Era also applied for an LLP groundfish license based on the fishing history of the F/V ALEUTIAN NO. 1. New Era sought three groundfish area endorsements: Bering Sea, Aleutian Islands, and Western Gulf of Alaska.

To receive an LLP license, an applicant must meet the requirements for documented harvests in the general qualification period [GQP] and at least one endorsement qualification period [EQP]. The IAD determined that New Era did not qualify for an LLP groundfish license because its only groundfish harvest during the GQP was not a lawful harvest. The IAD also stated that if the harvest had been lawful, New Era would qualify only for a Bering Sea area endorsement. Pending a final agency action on New Era’s application, RAM issued to New Era a non-transferable LLP groundfish license and a non-transferable LLP crab license.

On appeal, New Era argued that it qualified for an LLP groundfish license, but did not argue that it met the EQP requirements for an Aleutian Islands or a Western Gulf of Alaska endorsement. Therefore, New Era’s appeal was treated as disputing only whether it qualified for an LLP groundfish license with a Bering Sea endorsement.

Oral hearing in this matter was held on March 22, 2005 and June 8, 2005. The Appeals Officer found that New Era qualified for an LLP groundfish license with a Bering Sea area endorsement. The F/V ALEUTIAN NO. 1’s only groundfish harvest during the general qualification period was made in 1992 without a 1992 Federal Fisheries Permit [FFP]. New Era established by a preponderance of the evidence, however, that it had applied to NMFS for a 1992 FFP in December 1991, while its 1991 FFP was still in effect. Under Section 9(b) of the federal Administrative Procedure Act, 5 U.S.C. §558(c), a timely and sufficient application for a renewal license keeps the applicant’s existing license in effect until the agency makes a final determination on the application. Thus, New Era’s 1991 FFP was still in effect on January 8, 1992, when the F/V ALEUTIAN NO. 1 landed the groundfish harvest. As a result, the harvest was lawful and constituted a documented harvest under 50 C.F.R. §679.2. Therefore, New Era met the documented harvest requirement for an LLP groundfish license with a Bering Sea area endorsement.  To Decision »
04-0007 Groundfish/Crab LLP
Issued: 8/11/2005 | Effective: 9/11/2005
Appellant: OLNEY, Virginia
Disposition: Affirmed
Abstract Terms:
    - Eligibility
    - Endorsements
    - LLP Groundfish/Crab

Abstract:  Ms. Olney applied for an LLP groundfish license with a Southeastern Outside area endorsement. An Initial Administrative Determination (IAD) denied her application because it concluded that her vessel did not meet the general qualification period [GQP] requirement for an LLP groundfish license.

According to the official LLP record, the vessel made no harvests of license limitation groundfish in the BSAI or the Gulf of Alaska between January l, 1988 and June 27, 1992. Ms. Olney submitted three fish tickets that showed harvests of ling cod, quillback rockfish and yelloweye rockfish on May 9, 1991; ling cod, quillback rockfish and yelloweye rockfish on September 5, 1991; ling cod, quillback rockfish, tiger rockfish, canary rockfish and yelloweye rockfish on June 9, 1992. These dates are within January l, 1988 and June 27, 1992.

NMFS and the North Pacific Fishery Management Council and NMFS specifically excluded these fish from the definition of license limitation groundfish. The fish tickets submitted by Ms. Olney do not show harvests of license limitation groundfish and therefore do not show that she satisfied this way of meeting the GQP requirement for an LLP groundfish license. Ms. Olney does not need an LLP groundfish license to conduct directed fishing for these species – ling cod anywhere in Alaska and demersal shelf rockfish in the Southeast Outside district.

The vessel did harvest license limitation groundfish in 1993 and 1994: redbanded rockfish and silvergray rockfish on June 12, 1993 and redbanded rockfish on September 16, 1994. These are not demersal shelf rockfish and therefore could count toward LLP qualification. The vessel is less than 60 feet. According to the Official LLP Record, the vessel made these harvests with hook and line gear, not pot or jig gear, and Ms. Olney did not dispute that.

The relevant regulation has three parts and Ms. Olney satisfied only two. The vessel harvested license limitation groundfish between January l, 1988 and June 17, 1995: redbanded rockfish and silvergray rockfish on June 12, 1993; redbanded rockfish on September 16, 1994; and redbanded rockfish on May 6, 1995. The vessel harvested groundfish in the Gulf of Alaska or BSAI between February 10, 1992 and December 11, 1994 using trawl or longline gear, excluding sablefish with fixed gear. The rockfish harvests on June 12, 1993 and September 16, 1994 meet this requirement as well.

The Appeals Officer noted that the F/V vessel did meet the EQP requirement for an LLP license with a Southeast Outside area endorsement for a category C vessel. It made at least one documented harvest of license limitation groundfish in the Southeast Outside district between January l, 1992 and June 17, 1995, however, an applicant must meet both the general qualification period requirement and the endorsement qualification period requirement. Since the vessel did not meet any GQP requirement, the Appeals Officer concluded that Ms. Olney did not qualify for an LLP groundfish license with a Southeast Outside endorsement based on the fishing history of the vessel.   To Decision »
03-0024 Groundfish/Crab LLP
Issued: 8/8/2005 | Effective: 9/7/2005
Appellant: HOGEVOLL, Ben
Disposition: IAD Vacated
Abstract Terms:
    - Endorsements
    - Unavoidable Circumstances

Abstract:  Appellant qualified for an LLP groundfish license endorsed for the Bering Sea (BS) and Western Gulf of Alaska (GOA) groundfish fisheries. The IAD denied Appeallant's claim to a Central Gulf of Alaska area endorsement because the official record showed that the vessel did not make the required harvests for that endorsement, and because Appellant did not qualify for the Central Gulf area endorsement under the unavoidable circumstances provision, 50 C.F.R. §679.4(k)(8)(iv).

On appeal, Appellant conceded that his vessel did not make the required documented harvests for the Central Gulf area endorsement, but disputed the determination that he was ineligible for the endorsement under the unavoidable circumstance provision.

Appellant did not dispute the official LLP record and conceded that the vessel lacked the requisite fishing history to meet the EQP requirements for Central Gulf of Alaska area endorsement. However, Appeallant claimed qualification for the Central Gulf endorsement under an alternative method – the unavoidable circumstance provision found at 50 C.F.R. §679.4(k)(8)(iv). Appellant claimed that the grounding of the vessel in October 1992 prevented it from participating in the Central Gulf groundfish fishery during the fall of the same year. But for that event, Appellant claimed the vessel would have made at least one documented harvest of LLP groundfish in 1992, and would have met the requirements for a Central Gulf area endorsement under 50 C.F.R. §679.4(k)(ii)(I).

The evidence in the record showed that Appellant would have gone to the Central Gulf of Alaska in the fall of 1992 to fish LLP groundfish if the vessel had not grounded, and was found to have had that specific intent. The vessel needed only one more documented harvest of LLP groundfish in the Central Gulf to qualify for the Central Gulf area endorsement. The evidence in the record was that Appellant's failure to make the requisite LLP groundfish harvest was directly attributable to the grounding and subsequent repairs, and that those events were the sole cause of that failure.

Paragraph (E) of the unavoidable circumstance regulation specifies that the vessel must have made a documented harvest in the appropriate endorsement area after an unavoidable circumstance but before June 17, 1995. As this office has stated in other decisions, that is an absolute requirement to qualify under the unavoidable circumstances provision. The NMFS official LLP record showed that the vessel made a documented harvest of LLP groundfish (Pacific cod) in the Central Gulf of Alaska on March 15, 1993. Thus, it was found the vessel made a documented harvest in the appropriate endorsement area after the unavoidable circumstance but before June 17, 1995.

The Administrative Judge concluded that Appellant satisfied all of the criteria under the unavoidable circumstances provision and qualified for the Central Gulf of Alaska area endorsement.

  To Decision »
02-0041 Groundfish/Crab LLP
Issued: 8/1/2005 | Effective: 8/31/2005
Appellant: REHDER, Charles
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements

Abstract:  Appellant claimed qualification for two LLP groundfish area endorsements under an unavoidable circumstance provision, 50 C.F.R. 679.4(k)(8)(iv). The AO concluded as a matter of law that an applicant can never qualify for a Bering Sea area endorsement on the basis of an unavoidable circumstance. That endorsement requires only one documented harvest of LLP groundfish in the Bering Sea during the period January 1, 1992, through June 17, 1995. An unavoidable circumstance claim requires, among other things, that the applicant's vessel must have made a documented harvest of LLP groundfish in the appropriate regulatory area after the unavoidable circumstance occurred, but before June 17, 1995. Any applicant who meets this unavoidable circumstance requirement necessarily would have made the requisite documented harvest to qualify for the Bering Sea area endorsement without recourse to the unavoidable circumstance provision. Conversely, any applicant who does not meet the documented harvest requirement for a Bering Sea area endorsement also will not meet the documented harvest requirement of an unavoidable circumstance claim. The unavoidable circumstance provision of 50 C.F.R. 679.4(k)(8)(iv) simply does not apply in a claim for a Bering Sea area endorsement.

The AO concluded that the Appellant also did not qualify for an LLP groundfish license with a Central Gulf of Alaska area endorsement based on an unavoidable circumstance claim. The AO found that a crane collapse and engine repairs in 1994, and an engine failure in January 1995, did not cause the Appellant's failure to make the requisite documented harvests of LLP groundfish to qualify for the endorsement. The AO found that engine problems in February and March 1995 did not result in an engine failure, and did not meet several basic requirements of the unavoidable circumstance regulation.   To Decision »
02-0055 Groundfish/Crab LLP
Issued: 7/21/2005 | Effective: 8/22/2005
Appellant: KARUZA, John A.
Disposition: IAD Affirmed
Abstract Terms:
    - Eligibility
    - Regulations

Abstract:  RAM properly denied Appellant an LLP groundfish license with Central Gulf and Southeast Outside endorsements. Appellant owned the F/V VIS but that vessel met only the harvest requirements in the endorsement qualification period [EQP] for an LLP groundfish license. The F/V VIS did not meet any the general qualification period [GQP] requirement for an LLP groundfish license. The F/V VIS caught groundfish in the GQP, but they were discarded at sea. To be a documented harvest, the fish must be retained and enter commerce.

The F/V DEVOTION had a complete LLP-qualifying fishing history. Appellant owned the F/V DEVOTION when it made a GQP harvest but he did not own it on June 17, 1995 and does not now own the fishing history of the F/V DEVOTION. The written contract between Appellant and the current owner of the F/V DEVOTION only retained to Appellant the rights to halibut and black cod caught prior to the date of the sale, which was in December 1990. Appellant is therefore not an eligible applicant for an LLP license based on the fishing history of the F/V DEVOTION, as that term, eligible applicant, is defined by federal regulation 50 C.F.R. 679.2. NMFS does not have authority to issue the applicant an LLP groundfish license by combining the GQP fishing history of the F/V DEVOTION with the EQP fishing history of the F/V VIS. NMFS does not have authority to divide the fishing history of an original LLP qualifying vessel and does not have authority to issue two LLP licenses based on the fishing history of one vessel.  To Decision »
04-0006 Groundfish/Crab LLP
Issued: 6/29/2005 | Effective: 7/29/2005
Appellant: DUNCAN, Rex
Disposition: IAD Affirmed
Abstract Terms:
    - Eligibility
    - Endorsements
    - Rehabilitation Act of 1973

Abstract:  Appellant was not eligible for an LLP groundfish license pursuant to the Rehabilitation Act. Appellant did not show that he meets the essential eligibility requirements for an LLP license and that he would receive an LLP license if NMFS made reasonable accommodations to his disability. Appellant would receive an LLP license only if NMFS made fundamental changes to the LLP. Appellant would only receive an LLP license if NMFS awarded him an LLP license based on [1] his participation in groundfish fisheries in 1979 and 1991 as a skipper and State of Alaska permit holder and [2] a determination that he would have owned a vessel with an LLPqualifiying history on June 17, 1995 but for the onset of his disability. This would be a major change because the LLP only awards licenses to applicants who actually did own a vessel on June 17, 1995 that made the documented harvests necessary for an LLP license or own the fishing history apart from the vessel. A major change to a government benefit or program is not a reasonable accommodation and is therefore not authorized under the Rehabilitation Act.

Appellant was not eligible to receive an LLP license based on the unavoidable circumstance regulation, 50 C.F.R. 679.4(k)(8)(iv). Appellant did not meet at least three requirements of the unavoidable circumstance regulation. First, he did not own a vessel on June 17, 1995 "and did not now own the fishing history" that harvested groundfish between January l, 1988 and February 9, 1992. Second, Appellant did not own a vessel on June 17, 1995 "and did not now own the fishing history of a vessel" that harvested groundfish in the Western Gulf and Central Gulf after the unavoidable circumstance and before June 17, 1995. Third, Appellant did not allege facts from which he could prove that he had a specific intent to conduct directed fishing for groundfish in the Western Gulf or Central Gulf in a specific time period between January l, 1992 and June 17, 1995, the endorsement qualification period for those endorsements. 50 C.F.R. 679.4(k)(4)(ii). Appellant stated that his disability prevented him from participating in those fisheries beginning in August 2, 2005 1992. The unavoidable circumstance regulation does not excuse applicants with a disability from proving specific intent.  To Decision »
02-0040 Groundfish/Crab LLP
Issued: 6/14/2005 | Effective: 7/14/2005
Appellant: BELLAMY, Raymond
Disposition: IAD Affirmed/Vacated in part
Abstract Terms:
    - Eligibility
    - Endorsements
    - Regulations

Abstract:  The IAD was affirmed with respect to the Appellant's claim for a Bering Sea LLP groundfish license endorsement, but vacated with respect to his claim for a Central Gulf of Alaska LLP groundfish license endorsement.

The Appellant claimed that he qualified for an LLP groundfish license, with endorsements for the Bering Sea (BS) and Central Gulf of Alaska (GOA) areas, under an unavoidable circumstance provision in the LLP regulations. The claims were based on the illness from cancer in 1995 of the former skipper of the F/V FARRAR SEA, and who died from the illness in 2000. He had been was responsible for the day-to-day operations of the F/V FARRAR SEA in 1995.

The Appeals Officer concluded that the Appellant did not qualify for a BS area endorsement because he did not satisfy one of the requirements of the unavoidable circumstance provision. Specifically, the AO found that the F/V FARRAR SEA did not make a documented harvest of groundfish in the Bering Sea after the skipper temporarily recovered from his illness on April 1, 1995, but before June 17, 1995. Therefore, the Appellant did not meet the requirements of 50 August 2, 2005 C.F.R. 679.4(k)(8)(iv)(E).

The AO concluded that the Appellant qualified for the Central GOA area endorsement because he satisfied all of the criteria under the unavoidable circumstance provision with regard to that endorsement. The AO found that the former skipper's illness from cancer was an allowable basis for the Appellant's unavoidable circumstance claim because the illness was beyond his control, unavoidable, and unique to him. The AO concluded that where someone other than the owner is responsible for the day-to-day operations of the vessel, including the decisions regarding when, where, and whether to fish, it is reasonable to impute the person's intent and actions to the vessel's owner, for purposes of an unavoidable circumstances claim. The AO concluded that the specific intent to harvest Pacific cod in the Central GOA was thwarted by a circumstance that was unavoidable, unique, unforeseen, and reasonably unforeseeable to the Appellant.  To Decision »
05-0004 Groundfish/Crab LLP
Issued: 5/31/2005 | Effective: 6/30/2005
Appellant: CHOQUETTE, William
Disposition: IAD Vacated
Abstract Terms:
    - Due Process
    - Eligibility
    - Evidence

Abstract:  Mr. Choquette met the requirements for an LLP license based on the fishing history of the F/V JACQUELYN R. Mr. Choquette was an eligible applicant for this license because he showed that he purchased the fishing history of the F/V JACQUELYN R. on May 15, 1995 from the F/V JACQUELYN R. Limited Partnership, which owned the vessel on that date, by the express terms of a written contract that clearly and unambiguously transferred the fishing history to him.

Based on the record in this appeal, the appeals officer found that the IAD incorrectly concluded that the F/V JACQUELYN R. Limited Partnership did not own the fishing history of the vessel on May 15, 1995. Based on the record in this appeal, the appeals officer found that the IAD incorrectly concluded that Key Bank owned the fishing history of the vessel on May 12, 1995 and transferred it to Mark Maring on that date.

The IAD relied on documents submitted by Mark Maring to deny William Choquette a license. Mr. Choquette requested those documents but NMFS did not provide those documents to Mr. Choquette. NMFS may not deny Mr. Choquette a license based on documents submitted by another applicant that NMFS will not provide to Mr. Choquette. A decision by the government made on secret undisclosed evidence of a disputed issue violates Mr. Choquette's due process rights to notice of the evidence on which the government is relying and a meaningful opportunity to rebut that evidence. A decision on undisclosed evidence violates the requirement in 50 C.F.R. 679.43(k) that that decisions of LLP appeals must be based on the record. A decision on undisclosed evidence makes full judicial review impossible.

The usual practice of this Office is to join competing applicants for the same license in one appeal and decide which applicant meets the requirement for the disputed license or quota share. The appeals officer did not join Mr. Maring in this appeal because NMFS issued Mr. Maring a transferable LLP license based on the fishing history of the F/V JACQUELYN R. on July 28, 2000 and approved transfer of that license to a third party on February 18, 2004.  To Decision »
02-0034 Groundfish/Crab LLP
Issued: 5/27/2005 | Effective: 6/27/2005
Appellant: MELANIE, INC
Disposition: IADs Affirmed
Abstract Terms:
    - Eligibility
    - Endorsements
    - Regulations

Abstract:  The Restricted Access Management Program (RAM) denied the Appellant's requests for a Bering Sea area endorsement to its LLP groundfish license, and a St. Matthew blue king area/species endorsement to its LLP crab license, based on the qualifying fishing history of the August 2, 2005 F/V MELANIE.

The official LLP record showed that the F/V MELANIE did not make at least one documented harvest of Bering Sea groundfish during the EQP, as required by regulation. The Appellant disputed the official record, and claimed it should receive credit for Pacific cod harvests made in 1994 and used on its own vessel for crab bait. The Appeals Officer concluded that, under the Magnuson-Stevens Act, the alleged Pacific cod harvests made by the F/V MELANIE in 1994 were not commercial harvests because they were not, nor were they intended to be, sold, bartered or traded, but were used exclusively aboard the vessel as bait for the commercial fishing of crab. The AO found that the F/V MELANIE did not harvest any other groundfish in the Bering Sea during the EQP for the fishery. Therefore, the AO concluded that the Appellant did not qualify for a Bering Sea area endorsement on its LLP groundfish license based on Pacific cod harvests for crab bait made by the F/V MELANIE in 1994.

The AO also concluded that the Appellant did not qualify for a St. Matthew blue king crab area/species endorsement on its LLP crab license under the unavoidable circumstances provision of the LLP regulations. The AO had found that the F/V MELANIE did not make a documented harvest of St. Matthew blue king crab after the alleged unavoidable circumstance in September 1994, but before June 17, 1995. Citing prior OAA decisions, the AO stated that the requirement of a documented harvest after an unavoidable circumstance, but before June 17, 1995, is an absolute requirement to qualify under the unavoidable circumstances provision.  To Decision »
03-0004R Groundfish/Crab LLP
Issued: 4/27/2005 | Effective: 5/27/2005
Appellant: WIZARD FISHERIES, INC (Reconsideration)
Disposition: IAD Affirmed
Abstract Terms:
    - Landings
    - Unavoidable Circumstances
    - Endorsements
    - LLP Groundfish/Crab

Abstract:  Appellant filed a Motion for Reconsideration on March 21, 2005. The Appellant’s motion presented one material matter of fact that was overlooked by the Appeals Officers in the Decision, namely, the Pacific cod harvest record of the F/V WIZARD in 1992. The motion also presented a new argument and evidence regarding Bering Sea ocean temperatures and their effect on the F/V WIZARD’s ability to chill Pacific cod aboard the vessel. Although this argument and evidence were not overlooked or misunderstood by the Appeals Officers, they were considered because they raise an important question concerning the interpretation of the Pacific cod hardship provision and the characteristics of an “unavoidable circumstance” that was announced for the first time in the Decision.

The issues decided were: 1. Did the Appellant have the specific intent to commercially harvest at least 100,000 pounds of BSAI Pacific cod with pot gear aboard the F/V WIZARD in 1998? 2. Was the Appellant’s specific intent thwarted by an “unavoidable circumstance” within the meaning of the Pacific cod endorsement hardship provision, 50 C.F.R. §679.4(k)(9)(v)(B)?

The Appeals Officer found that: 1. The increase in ocean temperature did not involve or result in loss, damage, or breakdown of the F/V WIZARD or its gear or equipment. 2. The temperature of the ocean is an element of the environment in which all fishing vessels must operate.

The Appeals Officer concluded that: 1. The temperature of the ocean is not a circumstance “unique to the license holder, or unique to the vessel,” as required by 50 C.F.R. §679.4(k)(9)(v)(B)(1)(ii). 2. Warmer ocean temperatures in the Bering Sea in 1998 cannot and did not constitute an “unavoidable circumstance” under 50 C.F.R. §679.4(k)(9)(v)(B). 3. The Appellant’s specific intent was not thwarted by an “unavoidable circumstance” within the meaning of the Pacific cod endorsement hardship provision, 50 C.F.R. §679.4(k)(9)(v)(B). 4. The Appellant does not qualify for a Pacific cod pot gear endorsement on its LLP groundfish license (#LLG1480).  To Decision »
01-0007 Groundfish/Crab LLP
Issued: 3/24/2005 | Effective: 4/24/2005
Appellant: NEWBY, Richard A.
Disposition: IAD Affirmed
Abstract Terms:
    - Eligibility

Abstract:  Appellant?s vessel, the F/V RED BARON, made crab harvests during the recent participation period (RPP). The Federal regulations that were in effect when the vessel made the harvests explicitly made it unlawful for a vessel to commercially harvest crab without a vessel moratorium permit (VMP). The F/V RED BARON did not have the required permit when it made the crab harvests. Therefore, the vessel did not make lawful harvests of crab during the RPP. Because the crab harvests were unlawful, the crab harvests cannot be considered "documented harvests" of crab, for purposes of qualifying the Appellant for an LLP license. As a result, Appellant did not qualify for an LLP crab license, based on a documented harvest of crab during the RPP. Appellant claimed that he was ignorant of the VMP requirement when the vessel made the crab harvests and that his ignorance constitutes an unavoidable circumstance. Based on the facts of the case, it was evident that Appellant's alleged ignorance was not a circumstance beyond his control and cannot constitute an unavoidable circumstance under the unavoidable circumstance provision.  To Decision »
03-0004 Groundfish/Crab LLP
Issued: 3/3/2005 | Effective: 5/27/2005
Appellant: WIZARD FISHERIES, Inc.
Disposition: IAD Affirmed
Abstract Terms:
    - Endorsements

Abstract:  The IAD denied the Appellant's claim for a Pacific cod pot gear endorsement to its LLP groundfish license because the Appellant's vessel, the F/V WIZARD, had not made documented harvests of at least 100,000 pounds of Pacific cod in two years, 1995 - 1999. The vessel had such harvests in only one of the five years, 1999. Appellant argued that it qualified for the endorsement under the hardship (unavoidable circumstance) provision, 50 C.F.R. 679.4(k)(9)(v)(B). That provision allows an LLP groundfish license holder to qualify for the endorsement if it can show that it held a "specific intent" to "conduct directed fishing for BSAI Pacific cod in a manner sufficient to meet the landing requirements," but the specific intent was "thwarted" by a circumstance that was unavoidable, unique to the license holder, and both unforeseen and reasonably unforeseeable by the license holder. The license holder also must show that the alleged circumstance actually occurred, that the license holder took all reasonable steps to overcome it, and that the license holder harvested any amount of BSAI Pacific cod aboard its vessel after the unavoidable circumstance occurred but before April 16, 2000. The Appeals Officers found that the Appellant lacked the specific intent to commercially harvest at least 100,000 pounds of BSAI Pacific cod with pot gear aboard the F/V WIZARD in 1998. The Appeals Officers concluded that: (1) the existence of "uniquely large and deep" fish holds on the F/V WIZARD did not constitute an "unavoidable circumstance" within the meaning of the Pacific cod endorsement hardship provision, 50 C.F.R. 679.4(k)(9)(v)(B); (2) to be "unavoidable," a circumstance must be beyond the control of the vessel owner or license holder; (3) a vessel-related "unavoidable circumstance" must involve loss, damage, or breakdown of the vessel or its gear or equipment; (4) an "unavoidable circumstance" must remove or seriously impair the vessel's pre-existing capability to August 2, 2005 meet the landing requirements for the Pacific cod endorsement; (5) the lack of knowledge and the inability to accurately predict a vessel's performance that stem from a lack of experience in a specific fishery with a specific vessel is not an "unavoidable circumstance" within the meaning of the Pacific cod endorsement hardship provision; (6) choosing the wrong refrigeration method or equipment for a particular vessel and a particular fishery is not beyond the vessel owner's control and is not an "unavoidable circumstance"; (7) the Appellant's decision to use slush ice to chill Pacific cod aboard the F/V WIZARD in 1998 did not constitute an "unavoidable circumstance" within the meaning of the Pacific cod endorsement hardship provision, 50 C.F.R. 679.4(k)(9)(v)(B); and (8) the Appellant does not qualify for a Pacific cod pot gear endorsement on its LLP groundfish license.

Further Action: In a Decision on Reconsideration, the Appeals Officer withdrew the finding in the Decision that the Appellant lacked the requisite specific intent under the hardship provision, but declined to make a finding on that issue without more evidence and because such a finding would not be determinative. The Appeals Officer concluded that: (1) the temperature of the ocean is not a circumstance "unique to the license holder, or unique to the vessel," as required by 50 C.F.R. 679.4(k)(9)(v)(B)(1)(ii); (2) warmer ocean temperatures in the Bering Sea in 1998 cannot and did not constitute an "unavoidable circumstance" under 50 C.F.R. 679.4(k)(9)(v)(B); (3) the Appellant's specific intent was not thwarted by an "unavoidable circumstance" within the meaning of the Pacific cod endorsement hardship provision, 50 C.F.R. 679.4(k)(9)(v)(B); and (4) the Appellant did not qualify for a Pacific cod pot gear endorsement on its LLP groundfish license. The Decision on Reconsideration affirmed the Decision.  To Decision »
05-0002 Groundfish/Crab LLP
Issued: 2/17/2005 | Effective: 3/21/2005
Appellant: PETERSON, Ronald
Disposition: IAD Vacated
Abstract Terms:
    - Eligibility

Abstract:  The appeals officer concluded that LLP crab license LLC3967 should NOT be revoked. NMFS issued LLP crab license LLC 3967 based on the fishing history of the F/V SEAWIND. RAM concluded that LLC 3967 should be revoked because the F/V SEAWIND did not meet the recent participation period [RPP] requirement in federal regulation 50 C.F.R. 679.4(k)(5)(iii, which requires a harvest of LLP crab between January l, 1996 and February 7, 1998. The applicant claimed it met "Exemption 4" to the RPP requirement at 50 C.F.R. 679.4(k)(5)(iv). August 2, 2005 Exemption 4 provides an exception to the requirement that the person must have owned the LLP qualifying fishing history at the time of the RPP harvest.

Exemption 4 has two requirements: a documented harvest of LLP crab between January l, 1998 and February 7, 1998 and a contract to purchase an LLP qualifying fishing history by October 10, 1998. The applicant claimed the benefit of an LLP crab harvest from the F/V ALEUTIAN No. 1 on January 29, 1998. The applicant purchased the qualifying fishing history of the F/V SEAWIND on September 29, 1998.

RAM denied Exemption 4 because the applicant had already used the RPP harvest of the F/V ALEUTIAN No. 1 to keep alive another LLP crab license - LLC3968. Relying on Bella K. of Seattle, Inc. decision in Appeal No. 02-0006 (March 25, 2004), the appeals officer concluded that the RPP fishing history of a vessel could support more than one LLP crab license. The appeals officer therefore concluded that the applicant could use the RPP harvest from the F/V ALEUTIAN No. 1 to keep alive LLP crab license LLC3967, even though the applicant had also used that harvest to keep alive LLP crab license LLC3968.  To Decision »
02-0054 Groundfish/Crab LLP
Issued: 2/5/2005 | Effective: 3/4/2005
Appellant: NORDIC FISHING, INC.
Disposition: IAD Affirmed
Abstract Terms:
    - Eligibility
    - Endorsements

Abstract:  None of Appellant's vessels made the requisite documented harvests of crab to qualify for the requested LLP crab licenses and endorsements of those licenses. Appellant claims that various unavoidable circumstances prevented the vessels from making the required documented harvests. The vessels either did not make at least one documented harvest of crab after the alleged unavoidable circumstances, but before June 17, 1995, or did not make the requisite documented harvests of crab during the general qualifying period for an LLP crab license. Therefore, the unavoidable circumstance provision cannot apply in this case. Appellant also claimed that it would have produced sufficient evidence for the requested crab licenses and endorsements, but for the death of its accountant and consequent loss or destruction of Appellant's files. Appellant did not produce proof to support that claim. Regardless, it still is the duty of an appellant to produce sufficient evidence to support the claims made on appeal. The Appellant did not do so in this case. Therefore, the Appellant does not qualify for the requested LLP crab licenses and endorsements.  To Decision »
05-0001 North Pacific Groundfish Observer Program
Issued: 2/2/2005 | Effective: 3/4/2005
Appellant: DUTEAU, Michel
Disposition: Vacated
Abstract Terms:
    - Observer

Abstract:  Mr. Duteau appealed the determination in the IAD that he can never retake the observer training course because he did not pass either of two domestic finfish identification tests he took in the third week of the course.

Appeals Officer found that if the NPGOP determines that a candidate for observer certification cannot retake observer training, the certification official must make a determination that the candidate has unresolvable deficiencies in meeting the requirements for observer certification and must provide the basis for that determination. The IAD did not contain such a determination.

Appeals Officer concluded that the IAD was not properly issued and that Mr. Duteau was not properly denied the opportunity to retake the observer certification training course.  To Decision »
02-0050 Groundfish/Crab LLP
Issued: 1/28/2005 | Effective: 2/28/2005
Appellant: BLUE DUTCH, LLC
Disposition: IAD Affirmed
Abstract Terms:
    - Endorsements

Abstract:  NMFS records show that the F/V BLUE DUTCH did not make the requisite August 2, 2005 documented harvests of groundfish or Pacific cod to qualify for various groundfish area endorsements and a Pacific cod pot gear endorsement to its LLP groundfish license. Appellant did not produce the required evidence (a state fish ticket, Federal catch report, or other valid documentation) to show otherwise. Appellant claimed that it was not been able to obtain the fishing history of the vessel from the former owner and skippers of the vessel. Even if that were true, the Appellant still bears the ultimate responsibility for proving its case. This Office does not have the authority to release the fish ticket data in the official LLP record to the Appellant without the permission of the persons that may have harvested the fish. Therefore, Appellant did not qualify for the requested endorsements and a Pacific cod pot gear endorsement to its LLP groundfish license.  To Decision »
02-0035 Groundfish/Crab LLP
Issued: 1/25/2005 | Effective: 2/24/2005
Appellant: KARIN LYNN FISHERIES, INC.
Disposition: IAD Affirmed
Abstract Terms:
    - Eligibility

Abstract:  The F/V KARIN LYNN did not make the requisite documented harvests of groundfish to qualify for an LLP groundfish license. Appellant claimed that the vessel made documented harvests of groundfish based on recorded harvests of Pacific cod that were retained aboard the vessel for crab bait. The Federal regulations did not (and still do not) require the recording of Pacific cod harvests that were used exclusively for crab bait. Also, in several decisions, we have said that to be considered documented harvests of groundfish, the fish must have been sold, bartered, or traded. The Pacific cod harvests in this case were not required to be recorded and were not "commercial" harvests of groundfish. Therefore, Pacific cod harvests of the F/V KARIN LYNN cannot constitute "documented harvests" of groundfish for purposes of qualifying for an LLP groundfish license.  To Decision »
02-0043R Groundfish/Crab LLP
Issued: 1/21/2005 | Effective: 2/22/2005
Appellant: ARCTIC BARUNA, LLC (Reconsideration)
Disposition: Affirmed Decision
Abstract Terms:
    - Unavoidable Circumstances
    - LLP Groundfish/Crab
    - Official Record

Abstract:  In the Decision on Reconsideration, the Appeals Officer found that another vessel owned by the Appellant's predecessor companies did not make the requisite documented harvests to qualify the Appellant for an LLP crab license under the unavoidable circumstance provision.

As a result of that finding, the Appeals Officer need not decide – and did not - whether the vessel was in fact a replacement vessel, for the purpose of meeting the unavoidable circumstance provision requirements.  To Decision »
02-0031 Groundfish/Crab LLP
Issued: 1/14/2005 | Effective: 2/15/2005
Appellant: NUKA ISLAND, INC.
Disposition: IAD Affirmed
Abstract Terms:
    - Eligibility

Abstract:  The F/V NUKA ISLAND did not have the requisite fishing history to qualify for an LLP groundfish license. Appellant claimed that the vessel would have had the requisite qualifying (Pacific cod) fishing history but for a large wave that caused severe damage to the vessel. Appellant spent $500,000 to repair the vessel and has a huge financial stake in the Pacific fishery. The F/V NUKA ISLAND did not make at least one documented harvest of groundfish or Pacific cod after the damage and repair of the vessel, but before June 17, 1995 as required by 50 CFR 679.4 (k) (8) (IV) (E). Therefore, Appellant cannot qualify for an LLP groundfish license based on an "unavoidable circumstance" under the unavoidable circumstance provision in the LLP regulations. The LLP regulations do not provide for an financial hardship exception to the documented harvest requirements for an LLP groundfish license.  To Decision »
02-0020 Groundfish/Crab LLP
Issued: 1/12/2005 | Effective: 2/11/2005
Appellant: OCEAN STORM FISHERIES, INC.
Disposition: IAD Affirmed
Abstract Terms:
    - Endorsements

Abstract:  Appellant's qualifying vessel, the F/V OCEAN STORM, harvested LLP groundfish only with trawl gear during the relevant period. Appellant claimed that it should be able to combine the non-trawl fishing history that it owned from another vessel, the F/V DECISION, to qualify its LLP groundfish license for a non-trawl/trawl endorsement. Even if Appellant owned the fishing history of the F/V DECISION, the LLP regulations explicitly require a non-trawl/trawl endorsement to be based solely on the fishing history of an applicant's qualifying vessel. The August 2, 2005 Appellant's qualifying vessel, the F/V OCEAN STORM, did not have non-trawl fishing history. Therefore, Appellant's LLP groundfish license did not qualify for a non-trawl/trawl endorsement.  To Decision »
04-0003 Groundfish/Crab LLP
Issued: 1/7/2005 | Effective: 3/2/2005
Appellant: KONA KAI, INC.
Disposition: IAD Affirmed
Abstract Terms:
    - Eligibility
    - Endorsements
    - Regulations

Abstract:  Kona Kai, Inc., is not eligible to receive an LLP groundfish license with a Bering Sea endorsement based on the unavoidable circumstance regulation, 50 C.F.R. 679.4(k)(8)(iv). An applicant must meet every requirement of the unavoidable circumstance regulation. The unavoidable circumstance regulation, in section (E), requires that the applicant have harvested groundfish in the desired endorsement area after the unavoidable circumstance and before June 17, 1995. The requirement for a harvest before June 17, 1995 does not have any exceptions. Kona Kai did not harvest groundfish in the Bering Sea before June 17, 1995 and therefore cannot receive credit for a harvest under the unavoidable circumstance regulation.

Further Action: Kona Kai, Inc., through counsel, moved for reconsideration of the Decision in this appeal. The appeals officer concluded that Kona Kai did not show that the Decision overlooked or misunderstood any material question of law or fact regarding Kona Kai's claim to a Bering Sea endorsement. The motion was denied and a new effective date of the Decision was established as March 2, 2005.  To Decision »
02-0013 Groundfish/Crab LLP
Issued: 1/7/2005 | Effective: 2/7/2005
Appellant: BLUE ALEUTIAN, LLC
Disposition: IAD Affirmed
Abstract Terms:
    - Eligibility
    - Endorsements

Abstract:  The F/V BLUE ALEUTIAN did not make the requisite documented harvests of crab to qualify for an LLP crab license and the endorsements to the license sought by Appellant. Appellant claimed that it was unable to obtain the fishing history of the vessel from the vessel's previous owner. Even if that were true, neither NMFS, nor this Office, has the authority to disclose the fishing history of the vessel without the owner's written consent. However, this Office does have the authority to examine NMFS' records to verify the vessel's fishing history. The appeals officer in this case did so, and found that the F/V BLUE ALEUTIAN did not have the fishing history to qualify Appellant for an LLP crab license and the requested endorsements.  To Decision »
02-0010 Halibut/Sablefish IFQ
Issued: 12/29/2004 | Effective: 1/28/2005
Appellant: COULTER, Mary Ann
Disposition: IAD Vacated
Abstract Terms:
    - Quota Share Amount

Abstract:  In January 2002, the Appellant purchased halibut quota shares, and 31 pounds of underage "IFQ allocation pounds not fished" from the 2001 season. By regulation, up to 10 percent of a QS holder's annual IFQ allocation can be carried over and used in the following fishing year. RAM approved the transfer of QS and underage to the Appellant, issued a 2001 IFQ permit to the Appellant, opened a 2001 IFQ account for the Appellant, and deposited the 31 pounds of underage into the account. Then, on January 31, 2002, RAM allocated IFQ pounds to the Appellant for the coming fishing season. RAM adjusted the allocation by adding 3 pounds of underage, which represented 10 percent of the Appellant's 2001 account that had not been fished. The Appellant argued that all 31 pounds of underage should have been added to her 2002 IFQ account, but RAM denied that claim in the IAD.

The Appeals Officer found that RAM erred by issuing a 2001 IFQ permit to the Appellant and concluded that RAM does not have the regulatory authority to issue an IFQ permit for a fishing year that has already ended. The Appeals Officer also concluded that RAM incorrectly applied the underage carryover provision when it reduced the Appellant's underage by 90 percent for 2002 simply because there had been a post-season QS transfer. The Appeals Officer stated that the purpose of the underage provision was to encourage persons not to harvest IFQ species when they are very close to their annual IFQ account limit. This purpose had already been served because the Appellant's seller had stopped fishing 31 pounds short of his 2001 limit. Reducing the Appellant's underage for the 2002 season did not further the purpose of the regulation because the Appellant did not have the opportunity to fish any pounds in 2001.

The Appeals Officer also stated that RAM's application of the underage provision improperly discouraged QS transfers between the end of the fishing season and the calculation of the next year's IFQ allocation. Finally, the Appeals Officer concluded that the Appellant was entitled to have the 2001 underage carried over to the 2005 season because that was her first opportunity to benefit from the final determination of her claim.  To Decision »
02-0047 Groundfish/Crab LLP
Issued: 12/28/2004 | Effective: 1/27/2005
Appellant: MGF FISHERIES, INC.
Disposition: IAD Affirmed
Abstract Terms:
    - Eligibility
    - Endorsements
    - Rehabilitation Act of 1973

Abstract:  MGF is not eligible to receive an LLP groundfish license with Bering Sea and Aleutian Islands endorsements. First, MGF did not make the documented harvests required in 50 C.F.R. 679.4(k)(4) for an LLP groundfish license with Bering Sea or Aleutian Islands endorsements in either the general qualification period [GQP] or endorsement qualification period [EQP]. MGF stated that it caught Pacific cod in 1991 and 1993 and used it for crab bait. These harvests are not commercial fishing because they did not involve a transaction between two entities. Therefore, these harvests cannot be the basis for MGF to receive an LLP commercial fishing license.

Second, MGF is not eligible for an LLP groundfish license with Bering Sea and Aleutian Islands endorsements under the unavoidable circumstances regulation, 50 C.F.R. 679.4(k)(8)(iv), because MGF did not make the harvests required by the regulation: a groundfish harvest between January l, 1988 and February 9, 1992 and, for the Aleutian Islands endorsement, a groundfish harvest in the Aleutian Islands before June 17, 1995 and, for the Bering Sea endorsement, a groundfish harvest in the Bering Sea before June 17, 1995.

Third, MGF is not eligible for an LLP groundfish license based on Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794(a). To receive a license under the Rehabilitation Act, an applicant must prove that, if NMFS made a reasonable accommodation for disability, MGF would receive an LLP groundfish license with Bering Sea and Aleutian Islands endorsements.

MGF proposed, as a reasonable accommodation, that an applicant should receive an LLP license, if the applicant can prove that, but for a disability, the applicant would have made the harvests necessary for the LLP license sought by the applicant. This is not a reasonable modification of the LLP because it waives an essential requirement of the LLP: ownership of a vessel which made the harvests required for an LLP groundfish license with Bering Sea and Aleutian Islands endorsements either by the standard criteria for this license at 50 C.F.R. 679.4(k)(4)(i) or the unavoidable circumstance criteria at 50 C.F.R. 679.4(k)(8)(iv).  To Decision »
02-0043 Groundfish/Crab LLP
Issued: 12/22/2004 | Effective: 2/22/2005
Appellant: ARCTIC BARUNA, LLC
Disposition: IAD Affirmed
Abstract Terms:
    - LLP Groundfish/Crab

Abstract:  The IAD denied the Appellant's claim to an LLP crab license based on the fishing history of the F/V PACIFIC APOLLO, a vessel that sank in October 1990. RAM denied a crab license because the vessel (or a replacement vessel) lacked a documented harvest during any endorsement qualification period (EQP) and during the recent participation period (RPP). On appeal, the Appellant claimed it qualified for two area/species endorsements and a license under the EQP unavoidable circumstance provision, 50 C.F.R. 679.4(k)(8)(iv). Although the Appellant owns the fishing history of three other vessels, none of them could be considered a replacement vessel because each vessel's EQP fishing history had already been used to qualify for its own LLP crab license. The Appeals Officer concluded that neither the general qualification period (GQP) nor the EQP fishing history of a vessel can be reused to create more than one license. The Appeals Officer concluded that the F/V PACIFIC APOLLO's fishing history remained incomplete and August 2, 2005 does not constitute an LLP qualifying fishing history. Therefore, the vessel did not qualify for a transferable LLP crab license under the unavoidable circumstance provision. The Appeals Officer also stated that under the OAA decision in Bella K of Seattle, Inc., Appeal No. 02-0006 (Mar. 25, 2004), the Appellant was a recent participant, but could not meet the RPP requirements because the F/V PACIFIC APOLLO lacked an LLP qualifying fishing history.

Further Action: In a Decision on Reconsideration, the Appeals Officer found that a vessel owned by the Appellant's predecessor companies did not make the requisite documented harvests to qualify the Appellant for an LLP crab license under the unavoidable circumstance provision. The Appeals Officer affirmed the Decision.  To Decision »
02-0025 Groundfish/Crab LLP
Issued: 12/14/2004 | Effective: 2/28/2005
Appellant: HANSEN ENTERPRISES, INC
Disposition: IAD Affirmed
Abstract Terms:
    - Regulations
    - Eligibility
    - Endorsements

Abstract:  Hansen was found not eligible to receive an LLP groundfish license with an Aleutian Islands endorsement based on the unavoidable circumstance regulation, 50 C.F.R. 679.4(k)(8)(iv). An applicant must meet every requirement of the unavoidable circumstance regulation. Hansen did not harvest groundfish in the Aleutian Islands after the claimed unavoidable circumstance and before June 17, 1995, as required by section (E) of the unavoidable circumstance regulation. The appeals officer did not decide whether Hansen met the other requirements of the unavoidable circumstance regulation, including whether Hansen's inability to find a floating processor to take its catch in 1994 and 1995 was "unique" to Hansen or its vessel.

Hansen claimed the Western Gulf endorsement because it met the harvest requirement for that endorsement that was published in the LLP rule in October 1998: one documented harvest of license limitation groundfish in the Western Gulf between January l, 1992 and June 17, 1995. Final Rule, 63 Fed. Reg. 52,642, 52,655 (Oct. 1, 1998). This rule had an error in the text, namely it omitted the phrase "in each of any 2 calendar years" before the phrase "between January l, 1992 and June 17, 1995." NMFS published a correcting amendment to the LLP rule in May 2000 that restored the omitted phrase and provided that the requirement for a Western Gulf endorsement for August 2, 2005 a catcher vessel in category length A is one documented harvest of license limitation groundfish in the Western Gulf in each of any 2 calendar years between January l, 1992 and June 17, 1995. Hansen does not meet that requirement because it harvested groundfish only in 1995.

To receive a Western Gulf endorsement, Hansen must have met the requirement in current federal regulation: one documented harvest of license limitation groundfish in the Western Gulf in each of any two calendar years between January l, 1992 and June 17, 1995. The North Pacific Fishery Management Council approved this requirement when it took final action on the LLP. NMFS published this requirement for a Western Gulf endorsement when it published the proposed LLP rule. By judging Hansen's application according to this requirement, NMFS is not subjecting Hansen to a retroactive regulation.

Further Action: Hansen filed a motion for reconsideration of the Decision in this appeal. The Council and NMFS could have adopted the approach implicit in Hansen's argument, namely, that a vessel would have varying lengths overall, depending on when it made particular harvests, but they did not. The LLP regulations, however, direct NMFS to assign a vessel one length overall and that is the LOA of the vessel as of a particular date: June 17, 1995. The applicant gets the benefit of the vessel's LOA on that date. If the vessel's LOA on June 17, 1995 was longer than when the vessel made some of the qualifying harvests, the applicant receives a longer MLOA on its LLP license. Thus, Hansen is receiving an LLP crab license with an MLOA of 126 feet and an LLP groundfish license with a Bering Sea endorsement with an MLOA of 126 feet. But the applicant also receives the disadvantages of the vessel's LOA on that date, namely the applicant may be judged by a standard that requires two, rather than one, documented harvests for an endorsement. The appeals officer concluded that Hansen did not show grounds to reconsider the Decision. The motion was denied and February 28, 2005 was established as the new effective date of the Decision.  To Decision »
03-0022 Western Alaska CDQ Program
Issued: 11/26/2004 | Effective: 12/7/2004
Appellant: NORTON SOUND ECONOMIC DEVELOPMENT CORP.
Disposition: IAD Vacated
Abstract Terms:
    - Community Development Quota (CDQ)

Abstract:  The Appellant, one of six CDQ groups, proposed to partially fund two multi-purpose community buildings as substantial amendments to its Community Development Plan (CDP). The NMFS CDQ Program Coordinator issued two IADs which accepted the State of Alaska's recommendations that the substantial amendments be disapproved on the grounds that the proposed buildings do not start or support commercial fisheries business activities, as specified in 50 C.F.R. 679.1(e). The Appeals Officer found that the CDQ Program Coordinator used a reasonable analytical approach to determine that the projects were not primarily fisheries-related, and concluded that the coordinator properly made that determination. The Appeals Officer also found that NMFS has consistently approved non-fisheries-related CDQ projects, but has "not clearly delineated the boundaries or described the characteristics of the types of non-fisheries-related projects that it will approve, nor has NMFS provided notice or guidance to the CDQ groups of which kinds of projects will and won't be approved." The Appeals Officer found that NMFS did not articulate any rational basis for distinguishing between the non-fisheries-related projects it has approved and disapproved. The Appeals Officer found that NMFS does not interpret its regulations to require CDQ projects to be fisheries-related, and concluded that NMFS may not disapprove the substantial amendments in this appeal on the grounds that they are inconsistent with the goals and purpose of the CDQ program stated in 50 C.F.R. 679.1(e). The Appeals Officer concluded that NMFS had not met the standard for disapproving a substantial amendment in 50 C.F.R. 679.30(g)(4)(iii) and, therefore, the amendments should be approved.

Further Action: RA Decision on Review affirmed Decision and gave a new effective date.   To Decision »
01-0026 Groundfish/Crab LLP
Issued: 9/16/2004 | Effective: 10/18/2004
Appellant: ERLA-N, LLC
Disposition: IAD Affirmed
Abstract Terms:
    - Endorsements

Abstract:  The F/V ERLA-N did not make the requisite documented harvests of crab to qualify for an Aleutian Islands brown king crab area/species endorsement to its LLP crab license. Appellant claimed that a series of unavoidable circumstances, which consisted of unforeseen vessel repairs, prevented the vessel from making the requisite harvests for the endorsement. Appellant also claimed that it invested more than $400,000 in Aleutian Islands brown king crab fishing gear and that it is financially dependent on the fishery. The vessel did not make at least one documented harvest of Aleutian Islands brown king crab after the alleged unforeseen vessel repairs before June 17, 1995, as required by 50 CFR 679.4 (k) (8) (IV) (E) . Appellant cannot therefore qualify for an Aleutian Islands brown king crab endorsement based on an unavoidable circumstance under the unavoidable circumstances provision. The LLP regulations do not provide a financial hardship exception to the documented harvest requirements for an Aleutian Islands brown king crab endorsement.  To Decision »
04-0005 Groundfish/Crab LLP
Issued: 9/7/2004 | Effective: 10/7/2004
Appellant: SELDOVIA FISHERIES, INC.
Disposition: IAD Affirmed
Abstract Terms:
    - Eligibility
    - Official Record

Abstract:  Seldovia Fisheries, Inc., applied for an LLP groundfish license based on the fishing history of the F/V BLUE PACIFIC. The F/V BLUE PACIFIC is in vessel length category A, which means it had a length overall of 125 feet or greater on June 17, 1995. Seldovia did not qualify for an LLP groundfish license with area endorsements for Western Gulf, Central Gulf or Southeast Outside. According to 50 C.F.R. 679.4(k)(4)(ii), the endorsement qualification period [EQP] requirement for those endorsements for a category A vessel are one groundfish harvest in each of two calendar years between January l, 1992 and June 17, 1995 in, respectively, the Western Gulf, Central Gulf and Southeast Outside District. According to the official LLP record, the F/V BLUE PACIFIC did not make those harvests. On appeal, Seldovia did not submit any evidence or argument that the official LLP record was incorrect and therefore did not carry its burden to prove that the official LLP record should be changed.  To Decision »
02-0042 Groundfish/Crab LLP
Issued: 8/31/2004 | Effective: 9/2/2004
Appellant: ARCTIC BARUNA, LLC
Disposition: IAD Vacated
Abstract Terms:
    - Eligibility

Abstract:  NMFS revoked Appellant's LLP crab license based on the qualifying fishing history of the F/V SHELIKOF because the vessel did not make documented harvests of crab during the RPP. However, the Appellant made documented harvests of crab during the RPP with two other vessels, F/V BARUNA I and F/V BARUNA II. The Appellant used those RPP fishing histories to qualify for two other crab licenses, based on the combining the LLP qualifying fishing histories of the F/V SEA PRODUCER and the F/V OCEAN TEMPEST. The LLP regulations provide for an applicant to qualify for or to retain an LLP crab license, based on having participated in the crab fisheries during the RPP at the time that it owned an LLP qualifying fishing history of another vessel. The Appellant owned the LLP qualifying fishing history of the F/V SHELIKOF at the time that it participated with the F/V BARUNA I and the F/V BARUNA II during the RPP. The regulations that govern the requirements of the RPP do not preclude an applicant from using the RPP fishing history of a vessel to qualify for or to retain more than one LLP crab license. As a result, the Appellant was entitled to keep its LLP crab license based on ownership of the LLP qualifying fishing history of the F/V SHELIKOF, as a recent participant during the RPP.  To Decision »
02-0028 Groundfish/Crab LLP
Issued: 8/27/2004 | Effective: 9/27/2004
Appellant: ARCTIC EAGLE, LLC
Disposition: IAD Affirmed
Abstract Terms:
    - Endorsements

Abstract:  The catcher vessel, F/V ARCTIC EAGLE, did not make enough Pacific cod harvests to qualify Appellant's groundfish license for a Pacific cod pot gear endorsement. Appellant claimed that winter opilio crab seasons, spring vessel maintenance schedules, and summer tendering contracts prevented the vessel from satisfying the requirements for the endorsement. Even if that were true, none of those claims can be construed as an "unavoidable circumstance" under the unavoidable circumstance provision in the LLP regulations because the Appellant would have known beforehand that those circumstances would have prevented the F/V ARCTIC EAGLE from making the requisite harvests to qualify for a Pacific cod pot gear endorsement. Appellant could have avoided those circumstances to fish additional Pacific cod, but chose instead, apparently for economic reasons, to fish and tender crab. Appellant did not qualify for a Pacific cod pot endorsement based on an unavoidable circumstance.  To Decision »
03-0005 Groundfish/Crab LLP
Issued: 8/24/2004 | Effective: 9/23/2004
Appellant: DIAMONDBACK SEAFOODS, INC.
Disposition: IAD Vacated
Abstract Terms:
    - Eligibility
    - Endorsements

Abstract:  Diamondback qualifies for a BSAI Pacific cod catcher vessel pot gear endorsement on its LLP groundfish license. The requirement for this endorsement, in 50 C.F.R. 679.4(k)(9)(ii), is that the vessel harvested 100,000 pounds of Pacific cod in the BSAI with pot or jig gear in each of any two years 1995, 1996, 1997, 1998 or 1999. Diamondback's vessel, the F/V ANNA MARIE, harvested over 100,000 pounds of BSAI Pacific cod with pot gear in 1995; none in 1996, 1997, 1998 and 1999; and 200,000 pounds in February and March 2000.

Diamond sought credit for a second year of BSAI Pacific cod pot gear harvests based on the the hardship/unavoidable circumstance provision in the BSAI Pacific cod regulation, 50 C.F.R. 679.4(k)(9)(v)(B). The circumstance faced by Diamondback was that its vessel sank and required three months of repairs. On appeal, Diamondback proved, by a preponderance of evidence, it met the requirements of the hardship provision. Diamondback proved that it intended to harvest at least 100,000 pounds of BSAI Pacific cod with pot gear in 1996 but was thwarted by the sinking of the vessel. Diamondback proved the sinking was unavoidable, unique, unforeseen and reasonably unforeseeable and that Diamondback took all reasonable efforts to overcome the unavoidable circumstance. Diamondback harvested BSAI pacific cod after the unavoidable circumstance and before April 16, 2000.

The appeals officer concluded that Diamondback met the requirements of the hardship provision even though it chose not to participate in the BSAI Pacific cod pot gear fishery for 1997, 1998 and 1999. The appeals officer concluded that, under the hardship provision, Diamondback did not August 2, 2005 have to prove that it had a specific intent to harvest BSAI Pacific cod that was thwarted by an unavoidable circumstance for 1997, 1998 and 1999 but met the requirements of the hardship provision by proving the required facts for 1996.  To Decision »
02-0032 Groundfish/Crab LLP
Issued: 8/23/2004 | Effective: 9/22/2004
Appellant: SUYDAM, Kevin
Disposition: IAD Affirmed
Abstract Terms:
    - LLP Groundfish/Crab

Abstract:  The Appeals Officer concluded that the Restricted Access Management (RAM) Program is not authorized to transfer area/species endorsements from one of the Appellant's LLP crab licenses to another of his LLP crab licenses. The Appeals Officer concluded that such a transfer is prohibited because the license from which the endorsements were sought to be transferred was nontransferable and did not meet the general qualification period harvest requirement of 50 C.F.R. 679.4(k)(5)(i) and would expire upon Final Agency Action. The Appeals Officer also concluded that endorsements cannot be stripped or severed from a license and transferred to another license because that is specifically prohibited by 50 C.F.R. 679.4(k)(7)(viii)(A). The Appeals Officer also found that the Appellant's vessel lacked the requisite Aleutian Islands red king crab documented harvest and concluded that therefore the Appellant did not qualify for the AI red king crab endorsement.  To Decision »
03-0016 Groundfish/Crab LLP
Issued: 8/19/2004 | Effective: 9/19/2004
Appellant: GRIMSSON, John
Disposition: IAD Affirmed
Abstract Terms:
    - Eligibility
    - Regulations
    - Transfer
    - Official Record

Abstract:  An LLP license may only be issued to an applicant who meets the definition of eligible applicant in federal regulation 50 C.F.R. 679.2. Mr. Grimsson did not meet the first definition of eligible applicant, which requires ownership of an LLP qualifying vessel on June 17, 1995, because he did not own the F/V PROSPERITY on June 17, 1995.

The second definition of eligible applicant in 50 C.F.R. 679.2 requires ownership of an LLP qualifying fishing history according to the express terms of a written contract that clearly and unambiguously transferred or retained the vessel's fishing history to the applicant. This regulation means that if a contract is silent or unclear or ambiguous with respect to the transfer or retention of the fishing history, NMFS will treat the vessel owner on June 17, 1995 as the owner of the fishing history. Mr. Grimsson owned the F/V PROSPERITY before June 17, 1995 but lost the F/V PROSPERITY involuntarily through a court order issued in bankruptcy proceedings in 1993. Mr. Grimsson produced no contract that reserved the vessel's fishing history to him.

Although the second definition of eligible applicant refers to a "written contract," the appeals officer noted in footnote 16 of the opinion that it was likely that a court order would satisfy the requirement for a written contract, as long as the court order, by its terms, clearly and unambiguously reserved the vessel's fishing history to Mr. Grimsson. Mr. Grimmson produced no court order that reserved the vessel's fishing history to him.

Mr. Grimsson raised challenges to the definition of eligible applicant. An appeals officer must interpret and apply the LLP regulations but does not have authority to rule on challenges to them.  To Decision »
03-0015 Groundfish/Crab LLP
Issued: 8/9/2004 | Effective: 9/8/2004
Appellant: NOTORIOUS PARTNERSHIP
Disposition: IAD Affirmed
Abstract Terms:
    - Endorsements
    - Eligibility

Abstract:  Notorious Partnership appealed the denial of a St. Matthew blue king crab endorsement on its LLP crab license. NP claimed this endorsement based on the unavoidable circumstance regulation, 50 C.F.R. 679.4(k)(8)(iv). NP argued that it was impossible for it to meet section (E) of that regulation, which requires a harvest of the particular crab species for which NP is seeking an endorsement after the claimed unavoidable circumstance and before June 17, 1995.

An applicant may only receive credit for a harvest under the unavoidable circumstance regulation if it meets all the requirements of the regulation, including section (E). NP's claim that it was August 2, 2005 impossible for it to meet section (E) is another way of stating that NP wants NMFS to examine the reasons why NP did not harvest St. Matthew blue king crab before June 17, 1995 and make some kind of determination about those reasons.

The North Pacific Fishery Management Council (Council) and NMFS made a policy choice to impose an across-the-board requirement that the unavoidable circumstance applicant must have harvested the particular crab species for which the applicant is seeking an endorsement after the unavoidable circumstance and before June 17, 1995. Nothing in the LLP regulations authorizes RAM or the appeals officer to [1] examine why an applicant did not meet that requirement and [2] extend the deadline based on any kind of determination about why the applicant did not meet that requirement.  To Decision »
01-0024 Groundfish/Crab LLP
Issued: 8/3/2004 | Effective: 9/2/2004
Appellant: LEE ROSE, INC.
Disposition: IAD Vacated/Affirmed in part
Abstract Terms:
    - Eligibility

Abstract:  The express terms of a written contract showed that Appellant purchased the qualifying fishing history of the F/V VIGILANT from the vessel's owner. The fishing history of the vessel had not been transferred to another person. Therefore, Appellant qualified for an LLP groundfish license based on the fishing history of the F/V VIGILANT. Appellant produced three credible documents showing the vessel's length was 58 feet on June 24, 1992. As a result, the groundfish license is qualified to be designated with a maximum length of 70 feet.  To Decision »
02-0017 Groundfish/Crab LLP
Issued: 7/30/2004 | Effective: 8/30/2004
Appellant: KALDESTAD FISHERIES, LTD.
Disposition: IAD Vacated
Abstract Terms:
    - Vessel

Abstract:  Appellant's vessel, the F/V NORTHWEST, did not make the requisite documented crab harvests during the "recent participation period" (RPP) to qualify for an LLP crab license. The vessel did not do so because the vessel was lost at sea. Appellant used another vessel, the F/V NORDIC MARINER, to make documented LLP crab harvests during the RPP after the previous vessel was lost at sea but before the implementation of the LLP on January 1, 2000. Appellant already had used the RPP fishing history of the F/V NORDIC MARINER to qualify for another LLP crab license. The language of the "lost or destroyed" vessel exception to the RPP requirement does not prevent an applicant from using the RPP fishing history of qualifying vessel to qualify for another LLP crab license. Therefore, Appellant can qualify for an LLP crab license, based on fishing history of the F/V NORTHWEST MARINER under the "lost or destroyed" exception to the RPP requirement.  To Decision »
03-0011 Groundfish/Crab LLP
Issued: 7/28/2004 | Effective: 12/13/2004
Appellant: WEST, Charles G.
Disposition: IAD Affirmed
Abstract Terms:
    - Endorsements
    - Rehabilitation Act of 1973

Abstract:  Charles West is not eligible for an LLP crab license pursuant to the Rehabilitation Act. Mr. West has not shown that he meets the essential eligibility requirements for an LLP license and that he would receive an LLP license if NMFS made reasonable accommodations to his disability. Mr. West would receive an LLP license only if NMFS made fundamental changes to the LLP and awarded Mr. West an LLP license based on Mr. West's receiving a percentage of the catch of the vessels on which he worked as a deck hand, deck boss or engineer. A major change to a government benefit or program is not a reasonable accommodation and is therefore not authorized under the Rehabilitation Act.

Mr. West is not eligible to receive an LLP license based on the unavoidable circumstance regulation, 50 C.F.R. 679.4(k)(8)(iv). He does not meet three requirements of the regulation. First, he did not own a vessel that harvested LLP crab between January l, 1988 and February 9, 1992. Second, Mr. West did not show that he had a specific intent to harvest, as a vessel owner, the particular crab species for which he is seeking endorsements in the endorsement qualification periods for those endorsements. Third, Mr. West did not harvest the crab species for which he is seeking endorsements after the unavoidable circumstance and before June 17, 1995.

Further action: Mr. West filed a motion for reconsideration of the Decision and requested additional time to introduce further evidence. The appeals officer denied Mr. West's motion because all the facts asserted by Mr. West were treated as true, namely, that he was in an accident in March 1991 which caused him to have a disability, that he had a specific intent to fish as a vessel owner in the BSAI crab fisheries from 1991 to 1994, that the disability prevented him from doing that. Further evidence would simply prove the facts that were treated as proven. Even assuming those facts were true, Mr. West did not qualify for an LLP crab license under either the Rehabilitation Act or the unavoidable circumstance regulation.  To Decision »
02-0045 Groundfish/Crab LLP
Issued: 7/23/2004 | Effective: 8/23/2004
Appellant: SHADLE, Matt
Disposition: IAD Affirmed
Abstract Terms:
    - Eligibility

Abstract:  Mr. Shadle claimed that he acquired the LLP qualifying fishing history of the F/V INFIDEL based on various bare boat charter agreements. None of the agreements showed that he acquired the fishing history of the vessel.  To Decision »
02-0002 Groundfish/Crab LLP
Issued: 7/23/2004 | Effective: 8/23/2004
Appellant: VICTOR AND LOIS MULLEN
Disposition: IAD Affirmed
Abstract Terms:
    - Eligibility

Abstract:  Appellants vessel, the F/V JADE ALASKA, did not make the requisite documented (crab) harvests during the "recent participation period" to qualify Appellants for an LLP crab license. Appellants claimed that they did not participate in the LLP crab fisheries during the RPP because they had a commitment to tender grey cod and because they were fishing for halibut in Bristol Bay. Appellant's also claimed that they and their son should be compensated for NMFS taking away their livelihood in the crab fisheries. Appellant did not produce evidence that showed they meet three of the exceptions to the RPP requirement or that they had a specific intent to fish for crab during the RPP. Therefore, Appellants cannot qualify for an LLP crab license based on the RPP exemptions or the RPP unavoidable circumstances provision. Nor can Appellants be compensated based on a claim of lost compensation that is not provided for in the LLP regulations.  To Decision »
02-0021 Groundfish/Crab LLP
Issued: 7/23/2004 | Effective: 8/23/2004
Appellant: HJELLE ENTERPRISES, INC.
Disposition: IAD Affirmed
Abstract Terms:
    - Eligibility

Abstract:  Appellant's vessel, the F/V PACIFIC STAR, did not make the requisite documented (crab) harvests during the "recent participation period" to qualify Appellant for an LLP crab license. The tragic death of the owner and skipper of the vessel, Mr. Hjelle, prevented the vessel from making the requisite harvests. However, the Doctrine of Unavoidable Circumstances cannot be used to qualify the Appellant for an LLP crab license because the vessel did not make at least one documented harvest of crab after Mr. Hjelle's death in 1997, but before the implementation of the LLP on January 1, 2000. Therefore, Appellant did not qualify for an LLP crab license.  To Decision »
01-0013 Groundfish/Crab LLP
Issued: 7/22/2004 | Effective: 8/23/2004
Appellant: CHEEMUK, THOMAS J., Sr.
Disposition: IAD Affirmed
Abstract Terms:
    - Eligibility
    - Untimely Applications and Appeals

Abstract:  Mr. Cheemuk did not submit a timely application for an LLP crab license. NMFS did not have to send him an unsolicited application form because he did not meet the prerequisites for one. Mr. Cheemuk never claimed, nor did the evidence on appeal show, that an "extraordinary circumstance" prevented him from filing a timely application. Therefore, his application for an LLP crab license cannot be considered "timely" filed under the Doctrine of Equitable Tolling. Mr. Cheemuk claimed that a storm prevented him from making the requisite harvests to qualify for an LLP crab license. Even if that were true, he still could not be issued an LLP crab license because of unavoidable circumstances because he did not submit a timely application.  To Decision »
02-0052 Groundfish/Crab LLP
Issued: 7/21/2004 | Effective: 8/20/2004
Appellant: FARWEST LEADER, INC.
Disposition: IAD Affirmed
Abstract Terms:
    - Endorsements
    - Official Record
    - Eligibility

Abstract:  Farwest Leader, Inc., appealed an IAD that denied it BSAI Pacific cod catcher/processor hook-and-line and pot gear endorsements on its LLP license. Farwest's LLP license is based on ownership of the fishing history of the F/V SONYA S, apart from ownership of the vessel.

A license holder generally only gets credit for a harvest of Pacific cod endorsement if the harvest occurred within the BSAI Pacific cod directed fishery. 50 C.F.R. 679.4(k)(9)(iii)(G). RAM presumed that BSAI Pacific cod reported on a fish ticket or a Weekly Production Report (WPR) was harvested in the directed fishery if 50% or more of the catch on the fish ticket or WPR was BSAI Pacific cod. The appeals officer did not analyze the 50% rule because the 50% rule did not cause RAM to eliminate any Pacific cod from the F/V SONYA S's harvest totals.

The appeals officer found that Farwest did not meet the requirements for a BSAI Pacific cod catcher/processor hook-and-line gear endorsement because the F/V SONYA S did not harvest 270 metric tons of Pacific cod in the BSAI directed Pacific cod fishery with hook-and-line gear in any one of the years 1996 to 1999. The appeals officer concluded that Farwest did not meet the requirements for a BSAI Pacific cod catcher/processor pot gear endorsement or a catcher vessel pot gear endorsement because Farwest did not harvest with any BSAI Pacific cod with pot or jig gear in any of the years 1995 to 1999. 50 C.F.R. 679.4(k)(9)(ii)(B), (C) & (D).

The appeals officer noted a discrepancy in the data for 1995 as reflected in the Weekly Production Report databases maintained by the Restricted Access Management Program (RAM) and the Sustainable Fisheries Division (SF), both parts of the NMFS Alaska Region. The discrepancy did not affect the hook-and-line catcher processor endorsement because 1995 is not a qualifying year for that endorsement but the appeals officer suggested that the official LLP record would be enhanced if RAM verified that the SF data was in the official LLP record for the F/V SONYA S.  To Decision »
02-0038 Groundfish/Crab LLP
Issued: 7/8/2004 | Effective: 8/8/2004
Appellant: PAVLOF, INC.
Disposition: IAD Vacated
Abstract Terms:
    - Eligibility
    - Official Record

Abstract:  Pavlof, Inc., appealed an IAD that denied it a BSAI Pacific cod catcher/processor pot gear endorsement on its LLP license. The catcher/processor endorsement requires that a vessel have harvested 300,000 pounds of Pacific cod in the BSAI Pacific cod directed fishery with pot or jig gear in each of any two years 1995, 1996, 1997 and 1998. The appeals officer concluded Pavlof met that requirement.

The appeals officer first noted that a licenseholder generally only gets credit toward the eligibility amounts for a harvest of Pacific cod, if the harvest was made within the BSAI Pacific cod directed fishery, pursuant to 50 CFR 679.4(k)(9)(iii)(G). RAM employed a 50% presumptive rule: it presumed that BSAI Pacific cod reported on a fish ticket or a WPR was harvested in the directed fishery if 50% or more of the catch on the fish ticket or WPR was BSAI Pacific cod. The appeals officer did not decide whether the 50% presumptive rule was required or authorized by regulation because Pavlof received the endorsement whether NMFS applies a 50% rule or any lesser percentage for determining whether a harvest was in the BSAI Pacific cod directed fishery.

The appeals officer found that Pavlof, Inc., harvested over 300,000 pounds of Pacific cod in the BSAI Pacific cod directed fishery in 1995. The official LLP record, as relied on by RAM, did not show any harvests from the F/V PAVLOF in 1995 in either State of Alaska fish tickets or federal Weekly Production Reports (WPRs). The appeals officer determined that the WPR database maintained by NMFS's Sustainable Fisheries Division (SF) showed that the F/V PAVLOF harvested approximately 1.3 million pounds of BSAI Pacific cod in 1995. The appeals officer August 2, 2005 ordered that the official LLP record be amended to reflect these harvests.

For 1996, the official LLP record, as maintained by RAM in fish tickets and WPRs, showed that the F/V PAVLOF harvested over 300,000 pounds of BSAI Pacific cod in 1996 with pot gear. SF's WPR data and Pavlof's Daily Cumulative Production logs also showed the F/V PAVLOF harvested over 300,000 pounds of BSAI Pacific cod with pot gear in 1996.  To Decision »
02-0037 Groundfish/Crab LLP
Issued: 7/7/2004 | Effective: 8/6/2004
Appellant: BOWLDEN, INC.
Disposition: IAD Affirmed
Abstract Terms:
    - Endorsements
    - Eligibility
    - Regulations

Abstract:  To receive an LLP license under the unavoidable circumstance regulation at 50 C.F.R. 679.4(k)(8)(iv), an applicant must meet all the requirements of the regulation, including section (E). Section (E) requires that the unavoidable circumstance applicant have harvested crab or groundfish - in the particular area of the desired endorsement - after the unavoidable circumstance and before June 17, 1995. Since Bowlden did not harvest groundfish in the Bering Sea or the Aleutian Islands after its boat suffered damage in February 1995 but before June 17, 1995, Bowlden cannot receive an LLP groundfish license with a Bering Sea or an Aleutian Islands endorsement under the unavoidable circumstance regulation.

The appeals officer reached this conclusion even though it meant that the unavoidable circumstance provision may not be used by applicants seeking a Bering Sea endorsement, an AI endorsement or any other groundfish endorsement that requires one documented harvest in the endorsement qualification period or EQP: January l, 1992 to June 17, 1995. If the applicant made a harvest by June 17, 1995, and thereby met section (E), the applicant would meet the EQP requirement and would not need the unavoidable circumstance provision.

Even though this result is anomalous, the appeals officer concluded that she could not reasonably August 2, 2005 interpret section (E), which on its face requires a harvest before June 17, 1995, as being met by a harvest on December 30, 1995, which is after June 17, 1995, even if December 30, 1995 was a reasonable time after the unavoidable circumstance ended. The appeals officer based this conclusion on the clear language of section (E) and the consistent evidence in the LLP regulatory record that the North Pacific Fishery Management Council (Council) and NMFS intended to establish June 17, 1995 as an absolute cutoff date for a harvest by the unavoidable circumstance applicant. If the Council and NMFS wish a different rule for Bering Sea, Aleutian Island and other groundfish endorsements that require only one documented harvest in the EQP, they must change the regulation and state a different rule.

The Appeals Officer denied Bowlden's request for a hearing on whether it meets sections (A) through (D) of the unavoidable circumstance regulation. Assuming Bowlden met sections (A) through (D), Bowlden could not be granted an LLP groundfish license with a Bering Sea or AI endorsement because it does not meet section (E). Bowlden therefore did not meet the requirement in 50 C.F.R. 679.43(g)(3)(iv) for a hearing because Bowlden could not possibly receive the endorsements that it sought as a result of a hearing.  To Decision »
03-0019 Halibut Subsistence
Issued: 6/10/2004 | Effective: 7/12/2004
Appellant: KROLL, Henry
Disposition: IAD Affirmed
Abstract Terms:
    - Halibut Subsistence

Abstract:  The IAD denied the Appellant's application for a Subsistence Halibut Registration Certificate (SHARC) on the grounds that he was not a resident of a rural community under 50 C.F.R. 300.65(f)(1). The Appellant resided on the north shore of Tuxedni Bay. Under the subsistence halibut regulations the waters of Tuxedni Bay are within the Anchorage-Matsu- Kenai non-subsistence marine waters area in Commission regulatory area 3A. These waters are closed to subsistence halibut fishing, even for persons who do hold a Subsistence Halibut Registration Certificate. NMFS regulations prohibit subsistence halibut fishing in all of Tuxedni Bay. The Appeals Officer found that Tuxedni Bay is not a rural community listed under 50 C.F.R. 300.65(f)(1) and concluded, therefore, that Mr. Kroll was ineligible for a SHARC from NMFS.

Further Action: Motion for Reconsideration denied on July 9, 2004.  To Decision »
02-0036 Groundfish/Crab LLP
Issued: 5/20/2004 | Effective: 6/21/2004
Appellant: SANKO FISHERIES, LLC
Disposition: IAD Affirmed
Abstract Terms:
    - Eligibility

Abstract:  The Pacific cod harvests of the F/V AMERICAN ENTERPRISE were not sold, but kept aboard the vessel for crab bait. Because the Pacific cod harvests were not harvested commercially, they cannot be considered "documented harvests," for purposes of qualifying Appellant for an LLP groundfish license.  To Decision »
01-0029 Groundfish/Crab LLP
Issued: 5/13/2004 | Effective: 6/13/2004
Appellant: KIMBERLIN, Brad
Disposition: IAD Affirmed/part/vacated
Abstract Terms:
    - Eligibility
    - Transfer

Abstract:  This appeal involved the transfer restriction at 50 C.F.R. 679.4(k)(7)(ix). The appeals officer affirmed that Mr. Kimberlin's LLP groundfish license [LLG license # 3423] must have a vessel permanently affixed to it because Mr. Kimberlin did not have a Federal Fisheries Permit for the F/V SHANE when the F/V SHANE made the LLP-qualifying harvests for LLG license # 3423.

The appeals officer vacated the IAD to the extent that the IAD determined that the F/V SHANE must be named on LLG license # 3423. The appeals officer found that Mr. Kimberlin proved on appeal, by a preponderance of the evidence, that the F/V SHANE and the fishing history of the F/V SHANE were separated prior to February 7, 1998. The appeals officer found that Mr. Kimberlin's sale of the F/V SHANE to Patrick McKay in November 1996 separated the F/V SHANE from the fishing history of the F/V SHANE. The appeals officer found that Mr. Kimberlin is not currently deploying a vessel using LLG license # 3423. Before Mr. Kimberlin can use or transfer LLG license # 3423, he must name a vessel on it and that vessel will be permanently affixed to LLG license # 3423.  To Decision »
02-0029 Groundfish/Crab LLP
Issued: 4/26/2004 | Effective: 5/26/2004
Appellant: DEEP SEA FISHERIES, LLC
Disposition: IAD Vacated
Abstract Terms:
    - LLP Groundfish/Crab

Abstract:  The Appeals Officer found that the Appellant made a documented harvest of crab species after the F/V JODY ANN was lost or destroyed and before January 1, 2000. RAM, in issuing the LLP crab license #LLC1418 to Deep Sea Fisheries, had already determined that the Appellant deployed a vessel that met the documented harvest requirements of 50 C.F.R. 679.4(k)(5)(i) and (ii). Therefore, the Appeals Officer concluded that Deep Sea Fisheries met the requirements of 50 C.F.R. 679.4(k)(5)(iii)(B)(3) and was exempt from the Recent Participation Period requirements in 50 C.F.R. 679.4(k)(5)(iii)(A). The Appeals Officer concluded that LLP crab license #LLC1418 should not be revoke  To Decision »
03-0025 Halibut/Sablefish IFQ
Issued: 4/26/2004 | Effective: 5/26/2004
Appellant: NEWBY, Richard A.
Disposition: IAD Vacated
Abstract Terms:
    - Untimely Applications and Appeals
    - Eligibility

Abstract:  Appellant filed a timely claim for sablefish QS. NMFS did not tell him in an initial administrative determination (IAD) that he did not qualify for sablefish QS until nine years later. Appellant filed an appeal of the IAD within 60 days, as required by the applicable regulations. The Decision concluded that Appellant's appeal was not late, and that as a qualified person for halibut QS, he was entitled to be issued sablefish QS based on the legal landings of sablefish made by his vessel in 1987.  To Decision »
02-0019 Groundfish/Crab LLP
Issued: 4/16/2004 | Effective: 5/17/2004
Appellant: NORTHERN ORION, INC
Disposition: IAD Vacated
Abstract Terms:
    - LLP Groundfish/Crab

Abstract:  The Appeals Officer found that Northern Orion made a documented harvest of an LLP crab species from the F/V NORTHERN ORION in January 1998. The Appeals Officer concluded that Northern Orion was a recent participant under 50 C.F.R. 679.4(k)(5)(iii)(A). The Appeals Officer found that Northern Orion held the LLP qualifying fishing history of the F/V ST. MATTHEW at the time of the harvest, and concluded that Northern Orion met the requirements of 50 C.F.R. 679.4(k)(5)(iii)(A) and was entitled to retain LLP crab license #LLC5166.  To Decision »
02-0018 Groundfish/Crab LLP
Issued: 4/16/2004 | Effective: 5/17/2004
Appellant: SITKIN ISLAND, INC
Disposition: Vacated
Abstract Terms:
    - LLP Groundfish/Crab
    - Successor-in-Interest

Abstract:  The Appeals Officer found that Kona General Partnership made a documented harvest of an LLP crab species from the F/V SITKIN ISLAND in January 1998. The Appeals Officer concluded, therefore, that Kona General Partnership was a recent participant under 50 C.F.R. 679.4(k)(5)(iii)(A). Because Kona General Partnership held the LLP qualifying fishing history of the F/V ARCTIC ORION at the time of the harvest, the Appeals Officer concluded that Kona General Partnership met the requirements of 50 C.F.R. 679.4(k)(5)(iii)(A). The Appeals Officer also concluded that Sitkin Island, Inc., as the successor-in-interest, stands in the shoes of Kona General Partnership and is entitled to retain LLP crab license #LLC5162.  To Decision »
01-0025 Groundfish/Crab LLP
Issued: 4/9/2004 | Effective: 5/10/2004
Appellant: ZOLOTOI PARTNERSHIP
Disposition: IAD Affirmed
Abstract Terms:
    - Eligibility
    - Endorsements

Abstract:  The Pacific cod harvests of the F/V ZOLOTOI were not sold, but kept in cold storage for bait. Because the Pacific cod harvests were not harvested commercially, they cannot be considered "documented harvests," for purposes of qualifying Appellant for an LLP groundfish license. Appellant claimed that an "unavoidable circumstance" (caused by the Federal court's delay in the confirmation of the U.S. Marshal's sale of the F/V ZOLOTOI to Appellant) prevented the vessel from making enough documented harvests to qualify for an LLP groundfish license and various LLP crab license endorsements. Even if that is true, the vessel did not make at least one documented harvest after the alleged unavoidable circumstance. Therefore, Appellant could not qualify for an LLP groundfish license or various LLP crab endorsements based on the F/V ZOLOTOI under the unavoidable circumstance provision in the LLP regulations.  To Decision »
02-0006 Groundfish/Crab LLP
Issued: 3/25/2004 | Effective: 4/26/2004
Appellant: BELLA K OF SEATTLE, LLC
Disposition: IAD Vacated in part, Affirmed in part
Abstract Terms:
    - Eligibility
    - LLP Groundfish/Crab

Abstract:  The Appeals Officer concluded that 50 C.F.R 679.4(k)(5)(iii)(A), as revised, requires a person who holds one or more LLP crab licenses to have made only one documented harvest of any amount of LLP crab species during the Recent Participation Period. Such a person is a "recent participant" for purposes of the regulation and is entitled to retain all LLP crab licenses for which the person held the LLP qualifying fishing history at the time the RPP documented harvest was made. In addition, under 50 C.F.R. 679.4(k)(5)(iv), if the person made a documented harvest of LLP crab species during the period January 1, 1998 through February 7, 1998, the person is entitled to retain any LLP crab licenses for which the person obtained the LLP qualifying fishing history (or contracted to obtain such history) by 8:36 a.m. Pacific Time on October 10, 1998. The Appeals Officer concluded that 50 C.F.R 679.4(k)(5)(iii)(A) and (iv) do not require a person to make a separate documented harvest of LLP crab species from a different vessel for each LLP crab license held.

The Appeals Officer found that Bella K held the LLP qualifying fishing history of the F/V JAMES A while making a documented harvest of an LLP crab species with the F/V BELLA K on February 3, 1998. The Appeals Officer concluded that Bella K meets the requirements of 50 C.F.R 679.4(k)(5)(iii)(A) and is entitled to retain both LLP crab licenses: #LLC3661, based on the F/V JAMES A's LLP qualifying fishing history, and #LLC2020, based on the F/V BELLA K's LLP qualifying fishing history.

The Appeals Officer also concluded that neither the LLP regulations nor Amendment 10 of the Crab FMP authorizes NMFS to consolidate Bella K's two LLP crab licenses. The Appeals Officer found that the North Pacific Fishery Management Council adopted a motion in 1998 to authorize the consolidation of crab fishing histories from two or more vessels into a single license where the license holder fished crab with only one vessel during the RPP but held one or more additional LLP qualifying fishing histories at that time. Nonetheless, the Council's motion was not included in the text of Amendment 10, nor was such authorization included in the LLP regulations. Furthermore, an LLP regulation and language in the Crab FMP explicitly prohibit the consolidation of LLP crab species/area endorsements that were initially issued on separate licenses. Thus, the Appeals Officer concluded, NMFS cannot consolidate or merge Bella K's two LLP crab licenses or the area/species endorsements on those licenses. The Appeals Officer concluded that Bella K's two LLP crab licenses were properly issued initially as two separate licenses and are required to remain separate licenses, each with their own area/species endorsements.   To Decision »
02-0051 Groundfish/Crab LLP
Issued: 3/17/2004 | Effective: 4/16/2004
Appellant: RENFRO, William R.
Disposition: Affirmed IAD
Abstract Terms:
    - Estoppel
    - Eligibility
    - Regulations

Abstract:  The IAD is affirmed. Although the appellant has an extensive history fishing crab in BSAI, he did not harvest groundfish in BSAI or the Gulf of Alaska between January l, 1988 and June 17, 1995, the combined general and endorsement qualifying periods for an LLP groundfish license. The only groundfish harvests claimed by the appellant during that time period were Pacific cod harvests that he made from the F/V BRITTANY and used as crab bait from the F/V BRITTANY. These are not commercial harvests and therefore do not count toward an LLP license. NMFS adopted the distinction between personal bait harvests, which do not require an LLP license, and commercial bait harvests, which do require an LLP license, in the BSAI Pacific cod gear regulation, 50 C.F.R. 679.4(k)(9).

The appellant does not qualify for an LLP groundfish license even though he invested heavily in Pacific cod gear between 1996 and 1999 and made substantial groundfish harvests during that time. These are not the criteria for LLP groundfish licenses in federal regulation and are not the criteria that NMFS used to evaluate other LLP applicants.

The appellant alleges that he made this investment because an unspecified NMFS employee or employees told his father once, or several times, between 1996 and 1999 that Mr. Renfro would receive an LLP license. Such information would have contradicted the LLP regulations, as proposed by NMFS in 1997 and as adopted in 1998. Although there is substantial authority that verbal misinformation by a government agent acting outside the scope of the agent's authority can never prevent the government from applying a valid regulation, I do not rule on that question because the appellant's allegations are far too conclusory to grant him relief under any theory.

The appellant does not qualify for an LLP groundfish license based on his allegation that certain crab fishermen made token commercial catches of groundfish in the general qualification period because they had special interest group insider information. This allegation, even if true, does not prove that the appellant made the documented harvests required for an LLP license. If the appellant is seeking to challenge the LLP regulations, an appeals officer does not have authority to rule on the validity of the LLP regulations.  To Decision »
01-0030 Transfer Eligibility Certificate (IFQ)
Issued: 3/9/2004 | Effective: 4/8/2004
Appellant: SWANBERG, Dylan
Disposition: IAD Vacated
Abstract Terms:
    - Eligibility

Abstract:  Appellant submitted sufficient evidence that showed he worked for more than 150 days as a member of the harvesting crew of four vessels: the F/V REIVER, the F/V CAPE ENCHANTMENT, the F/V LUCY O, and the F/V TSIU. He meets the definition of an IFQ crew member, and he is entitled to a Transfer Eligibility Certificate.  To Decision »
02-0044 Groundfish/Crab LLP
Issued: 3/5/2004 | Effective: 4/5/2004
Appellant: NES, Magne
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Endorsements
    - Estoppel

Abstract:  Mr. Nes did not harvest groundfish or crab from the F/V GOLDEN SABLE until 1993. Mr. Nes does not qualify for an LLP groundfish license, based on the fishing history of the F/V GOLDEN SABLE. Mr. Nes did not harvest groundfish in the general qualification period or GQP, as required by 50 C.F.R. 679.4(k)(4)(i). Mr. Nes did not meet the basic GQP requirement for an LLP groundfish license because he did not harvest groundfish between January l, 1988 and June 27, 1992. Mr. Nes did not meet the extended GQP requirement for vessels that crossed over into groundfish from crab because he did not harvest crab between January l, 1988 and February 9, 1992.

Mr. Nes does not qualify for an LLP crab license endorsed for C. opilio and C. bairdi, AI brown king crab or Bristol Bay red king crab, based on the fishing history of the F/V GOLDEN SABLE. Mr. Nes did not harvest crab in the general qualification period or GQP, as required by 50 C.F.R. 679.4(k)(5)(i). Mr. Nes did not meet the basic GQP requirement because he did not harvest crab between January l, 1988 and June 27, 1992. Mr. Nes did not meet the extended GQP for vessels that crossed over into crab from groundfish because he did not harvest groundfish between January l, 1988 and February 9, 1992.

Mr. Nes did qualify under the original LLP regulations for an LLP crab license endorsed for Pribilof red and blue king crab, based on the F/V GOLDEN SABLE. RAM did not require a GQP harvest for that endorsement because the Pribilof red and blue king crab fisheries were closed from 1988 through 1992. But Mr. Nes may not retain an LLP crab license with a Pribilof endorsement because he did not harvest crab in the recent participation period or RPP, as required by 50 C.F.R. 679.4(k)(5)(iii). The RPP is January l, 1996 to February 7, 1998. Mr. Nes does not fall within the exceptions to the RPP in 50 C.F.R. 679.4(k)(5)(iii)(B).

Mr. Nes cannot receive credit for a harvest under the unavoidable circumstance provision in the RPP regulation, 50 C.F.R. 679.4(k)(5)(v). That provision extends the RPP until January l, 2000 for an applicant that meets specified requirements. Mr. Nes did not own any vessel, or the fishing history of a vessel, that harvested crab by January l, 2000. Under the LLP, the vessel owner, not the State permit holder or the captain of the vessel, receives credit for harvests made from a vessel.  To Decision »
02-0005 Halibut/Sablefish IFQ
Issued: 2/23/2004 | Effective: 3/24/2004
Appellant: MOCK, Joey
Disposition: IAD Vacated
Abstract Terms:
    - Eligibility
    - Transfer

Abstract:  On appeal, Appellant submitted sufficient proof that he worked more than 150 days as an IFQ crew member. Because of that, he met the definition as an IFQ crew member, and is entitled to a TEC to purchase Quota Shares under the IFQ program.  To Decision »
02-0004 Halibut/Sablefish IFQ
Issued: 2/23/2004 | Effective: 3/24/2004
Appellant: MOCK, Giacomo
Disposition: IAD Vacated
Abstract Terms:
    - Eligibility
    - Transfer

Abstract:  On appeal, Appellant submitted sufficient proof that he worked more than 150 days as an IFQ crew member. Because of that, he met the definition as an IFQ crew member, and is entitled to a TEC to purchase Quota Shares under the IFQ program.  To Decision »
02-0024 Groundfish/Crab LLP
Issued: 2/19/2004 | Effective: 3/22/2004
Appellant: ST. GEORGE MARINE, Inc.
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements
    - Regulations

Abstract:  The IAD is affirmed. St. George seeks an LLP groundfish license with Aleutian Islands and Bering Sea endorsements based on the unavoidable circumstance regulation: 50 C.F.R. 679.4(k)(8)(iv). St. George did not make the documented harvests that are required by this regulation. First, the F/V ST. GEORGE did not harvest any groundfish between January l, 1988 and February 9, 1992. To receive an LLP groundfish license under the unavoidable circumstances regulation, the applicant must have harvested LLP groundfish, not groundfish or crab, during this time period. Second, St. George did not harvest groundfish in the Aleutian Islands or the Bering Sea from the F/V JENNIFER A, the replacement vessel for the F/V ST. GEORGE, after the F/V ST. GEORGE sank and before June 17, 1995.

Since St. George will not receive an LLP groundfish license, NMFS may not award St. George a Pacific cod gear endorsement on an LLP groundfish license under any theory or regulatory provision. An applicant can only have a Pacific cod gear endorsement on an LLP groundfish license if the applicant has an LLP groundfish license.

RAM determined that St. George should receive an LLP crab license with a Bristol Bay red king crab endorsement under the lost vessel provision in 50 C.F.R. 679.4(k)(8)(iii), because the F/V ST. GEORGE made all the harvests required for that endorsement before it was lost. RAM also determined that St. George should receive BSAI opilio/bairdi endorsement under the unavoidable circumstances regulation, 50 C.F.R. 679.4(k)(8)(iv), because it met the requirements of that regulation, including a documented harvest of BSAI opili/bairdi from the F/V JENNIFER A after the F/V ST. GEORGE was lost and before June 17, 1995.

RAM correctly denied St. George additional crab endorsements for Pribilof red and blue king, St. Matthew blue king, Aleutian Islands brown king and Aleutian Islands red king under the unavoidable circumstances regulation because St. George did not harvest those crab species from the F/V JENNIFER A after the F/V ST. GEORGE sank and before June 17, 1995.  To Decision »
00-0003R Groundfish/Crab LLP
Issued: 2/12/2004 | Effective: 3/15/2004
Appellant: LEE, John B. III (Reconsideration)
Disposition: Affirmed OAA
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  The appeals officer concluded, as a matter of law, that Mr. Lee filed a timely LLP application. The appeals officer based this conclusion on the Decision on Review by the Regional Administrator in George V. Ramos, Appeal No. 94-0008 at 3, April 21, 1995: "Both the agency [NMFS] and previous decisions [of the Office of Administrative Appeals] have applied the application deadline in as liberal a fashion as possible. In each of these situations, however, this has been accomplished by finding that the appellant has complied with the requirements of the regulations as a matter of law through performance of some significant act in furtherance of filing his/her application prior to expiration of the deadline." The appeals officer concluded that Mr. Lee satisfies the Ramos standard for filing a timely LLP application as a matter of law through the significant act of applying for a Federal Fisheries Permit [FFP] authorizing the F/V JEWEL to harvest groundfish in the Gulf of Alaska [GOA]. The appeals officer concluded that the original Decision had misstated and misapplied the Ramos standard.  To Decision »
01-0014R Groundfish/Crab LLP
Issued: 2/6/2004 | Effective: 3/8/2004
Appellant: WARD, Paul S. (Reconsideration)
Disposition: IAD Vacated
Abstract Terms:

Abstract:    To Decision »
02-0039 Groundfish/Crab LLP
Issued: 11/20/2003 | Effective: 12/22/2003
Appellant: HIGH SPIRIT, INC
Disposition: IAD Affirmed
Abstract Terms:
    - Eligibility

Abstract:  The appeals officer found that Appellant's vessel, the F/V HIGH SPIRIT, did not exist, and therefore did not make at least one documented harvest of LLP crab, during the general qualifying period (GQP) for an LLP crab license, between January 1, 1988, and February 9, 1992. Even though construction delays may have prevented the vessel from being built and making at least one documented harvest of LLP crab during the GQP, and even though Appellant may go bankrupt, and not be able to pay for his daughter's ovarian cancer operation, without an LLP crab license, the appeals officer concluded that he could not grant relief to Appellant because (1) the "unavoidable circumstances" provision in the LLP regulations cannot be used as an exception to the GQP requirement; and (2) the LLP regulations do not provide for an exception to the documented harvest requirements for an LLP crab license, based on financial hardship or extenuating circumstance.  To Decision »
03-0007 North Pacific Groundfish Observer Program
Issued: 10/24/2003 | Effective: 11/5/2003
Appellant: DOBBS, Eric
Disposition: IAD Reversed
Abstract Terms:
    - Observer

Abstract:  The Appeals Officer concluded that because Mr. Dobbs was not given prior notice and opportunity to respond to the suspension / decertification officer before the issuance of the IAD, as specified in the NPGOP final rule, the IAD was not properly issued and, therefore, the suspension was not properly imposed and must be terminated. In addition, the Appeals Officer concluded that the suspension of Mr. Dobbs's observer certificate was not warranted by the evidence relied upon by the suspension / decertification officer. Therefore, the suspension was invalid and must be terminated. Finally, the Appeals Officer concluded that the process provided to Mr. Dobbs by the NPGOP did not meet the requirements of due process and, therefore, the suspension was invalid and must be terminated.

Further Action: RA affirmed the Decision and gave it an immediate effective date.   To Decision »
02-0049 Groundfish/Crab LLP
Issued: 10/23/2003 | Effective: 11/24/2003
Appellant: NORQUEST SEAFOODS, INC. (F/V ALL AMERICAN)
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements
    - Vessel

Abstract:  The appeals officer affirmed the Initial Administrative Determination issued under the North Pacific Groundfish and Crab License Limitation Program [LLP]. Norquest is not entitled to a BSAI Pacific cod species endorsement for pot gear on its LLP license based on the fishing history of the F/V ALL AMERICAN. The F/V ALL AMERICAN sank on February 29, 1996 and, according to the official LLP record, the only harvests of Pacific cod from that vessel were approximately 25,000 pounds of BSAI Pacific cod in 1995.

The Pacific cod regulation permits a license holder to combine the landings of a sunken vessel with the landings of a replacement vessel to meet the eligibility amounts in 50 C.F.R. 679.4(k)(9)(ii). The eligibility amount for a catcher vessel to receive a BSAI Pacific cod ppot gear endorsement is 100,000 pounds of Pacific cod in each of two years from 1995 to 1999. Norquest submitted evidence that the F/V BEVERLY B harvested Pacific cod in1998 and used it as crab bait.

Even if Norquest combines the landings of the F/V ALL AMERICAN with the F/V BEVERLY B, Norquest did not harvest 100,000 pounds of BSAI Pacific cod with pot or jig gear in each of two years from 1995 to 1999. First, assuming that Norquest could prove that the F/V BEVERLY B harvested 100,000 pounds of BSAI Pacific cod in 1998, Norquest did not harvest 100,000 pounds of BSAI Pacific cod in 1995, 1996, 1997 or 1999. Second, Norquest may not use Pacific cod caught from the F/V BEVERLY B and used as crab bait to meet the eligibility amounts in 50 C.F.R. 679.4(k)(9)(ii) because the Pacific cod gear regulation provides: "Pacific cod harvested for personal bait use will not count toward eligibility amounts in the table at paragraph (k)(9)(ii) of this section." 50 C.F.R. 679.4(k)(9)(iii)(C)  To Decision »
02-0048 Groundfish/Crab LLP
Issued: 10/23/2003 | Effective: 11/24/2003
Appellant: NORQUEST SEAFOODS, INC. (F/V SOUTHERN WIND)
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements
    - Eligibility

Abstract:  The appeals officer affirmed the Initial Administrative Determination issued under the North Pacific Groundfish and Crab License Limitation Program [LLP]. Norquest is not entitled to a BSAI Pacific cod species/gear endorsement as a catcher-processor or a catcher vessel on its LLP license that is based on the fishing history of the F/V SOUTHERN WIND. Norquest did not meet the standard harvest requirements for a BSAI Pacific cod gear endorsement at 50 C.F.R. 679.4(k)(9)(ii). Norquest does not satisfy the requirements for a hardship exemption because it did not harvest any Pacific cod after the claimed unavoidable circumstance but before April 16, 2000, as required by 50 C.F.R. 679.4(k)(9)(v)(B)(4). Norquest's harvests of Pacific cod for crab bait does not satisfy this provision, because it was a personal bait harvest, not a commercial bait harvest.  To Decision »
01-0001 Groundfish/Crab LLP
Issued: 10/20/2003 | Effective: 12/29/2003
Appellant: ALASKA TROJAN PARTNERSHIP
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Landings
    - Official Record
    - Endorsements

Abstract:  The Initial Administration Determination is affirmed. ATP has not proven that the F/V ALASKA TROJAN made three documented harvests of brown king crab between January l, 1992 and December 31, 1994 in the AI brown king crab endorsement area, as required by 50 C.F.R. 679.4(k)(5)(ii)(D). ATP argued that RAM improperly counted fish ticket C90 009283 as one documented harvest because the fish ticket showed that ATP caught crab from two State statistical areas within the AI brown king crab endorsement area. The number of State statistical areas on a fish ticket is not a valid criterion for determining documented harvests and awarding LLP crab endorsements. RAM probably counted fish ticket C90 009283 as one documented harvest, even if it showed crab caught from two State statistical areas.

ATP does not satisfy the requirements of the unavoidable circumstances regulation, 50 C.F.R. 679.4(k)(8)(iv). First, ATP was not "unable to participate" in the AI brown king fishery in November 1994 because it had to delay a delivery of crab. Second, ATP was not prevented from conducting directed fishing in the AI brown king crab fishery because it had to delay a delivery.

The appeals officer did not rule on whether 50 C.F.R. 679.4(k)(5)(ii) is invalid because it gave crab fishermen until December 31, 1994 to harvest crab in an endorsement qualification period [EQP], whereas 50 C.F.R. 679.4(k)(4)(ii) gave groundfish fishermen until June 17, 1995 to harvest groundfish in the EQP for groundfish licenses. The appeals officer concluded that she did not have authority to rule on the legality of regulations.

Further action: ATP filed a motion for reconsideration of the Decision. The appeals officer concluded that ATP had not shown that the appeals officer overlooked or misunderstood a material question of law or fact. The appeals officer denied the motion. ATP filed a complaint seeking relief in the U.S. District Court of Alaska on January 8, 2004.  To Decision »
03-0013 North Pacific Groundfish Observer Program
Issued: 9/26/2003 | Effective: 10/7/2003
Appellant: AGEE, Jesse
Disposition: IAD Reversed
Abstract Terms:
    - Observer

Abstract:  The Appeals Officer concluded that because Ms. Agee was not given prior notice and opportunity to respond to the suspension / decertification officer before the issuance of the IAD, as specified in the NPGOP final rule, the IAD was not properly issued and, therefore, the suspension was not properly imposed and must be terminated. In addition, the Appeals Officer concluded that the suspension of Ms. Agee's observer certificate was not warranted by the evidence relied upon by the suspension /decertification officer. Therefore, the suspension was invalid and must be terminated.

Further Action: RA affirmed the Decision and gave an immediate effective date.  To Decision »
01-0023 Halibut/Sablefish IFQ
Issued: 8/6/2003 | Effective: 9/5/2003
Appellant: BOYCE, Karen N.
Disposition: IAD Vacated
Abstract Terms:

Abstract:    To Decision »
00-0012R Groundfish/Crab LLP
Issued: 7/11/2003 | Effective: 8/11/2003
Appellant: TENNISON, Ronald J. (Reconsideration)
Disposition: IAD Affirmed
Abstract Terms:

Abstract:    To Decision »
02-0009 Halibut/Sablefish IFQ
Issued: 5/21/2003 | Effective: 6/20/2003
Appellant: PANCRATZ, Matthew
Disposition: Affirmed IAD
Abstract Terms:
    - Regulations
    - Transfer
    - Untimely Applications and Appeals

Abstract:  RAM approved two applications for transfer of halibut quota shares from Appellant to Respondent. Appellant's broker misappropriated the proceeds from the sale and Appellant was left without the money or the quota shares. RAM and NMFS rejected Appellant's demand that the transfer be reversed and the QS returned to him, or that NMFS pay him the value of the shares. A week after filing suit in federal district court against RAM and NMFS, the Appellant filed the administrative appeal. At the request of the parties to the lawsuit, the district judge ordered OAA to hold an evidentiary hearing and issue a decision with findings of fact and conclusions of law regarding the timeliness of the administrative appeal and the underlying issues in the lawsuit. After three days of hearings, the AO concluded that the appeal was timely filed, but that the QS transfers should not be reversed. The AO concluded that RAM had complied with its duty to mail notice of the transfer approvals to the Appellant, and that the appropriate original notarized signatures, broker authorization, and financial disclosures had been submitted to RAM.  To Decision »
02-0012 Groundfish/Crab LLP
Issued: 5/14/2003 | Effective: 6/13/2003
Appellant: KARM ENTERPRISES
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Regulations

Abstract:  The IAD denied Appellant's application for an LLP groundfish license with endorsements for the Aleutian Islands, Bering Sea, and Western Gulf of Alaska, based on its purchase of the fishing history of the F/V STORFJORD. NMFS's official LLP record showed no documented harvests by the vessel in any of the three endorsement areas during the general qualifying period (GQP). Appellant produced a daily cumulative production logbook, a weekly production report, and an ADF&G fish ticket, all evidencing that the vessel harvested groundfish in the BSAI in 1991, during the GQP. The AO found that the vessel did make such harvests, but concluded that they did not constitute "documented harvests" under 50 C.F.R. 679.2 because the documents were never turned in to the Federal government and the State of Alaska. The AO concluded that the definition of "documented harvest" as "a lawful harvest of groundfish recorded in compliance with Federal and state commercial fishing regulations in effect at the time of harvesting" required not only that the harvests be recorded, but also that the logbooks and fish ticket be submitted to the government. To interpret the definition otherwise would undermine the purpose and value of the Federal and state records, the AO stated. "A reasonable and common-sense reading of the 'documented harvest' definition considers these regulations in their entirety and does not require me to award LLP credit for partial compliance."  To Decision »
02-0058 Groundfish/Crab LLP
Issued: 3/24/2003 | Effective: 4/23/2003
Appellant: SCHUMACHER, Jonathan
Disposition: IAD Affirmed
Abstract Terms:

Abstract:    To Decision »
01-0014 Groundfish/Crab LLP
Issued: 3/3/2003 | Effective: 3/8/2003
Appellant: WARD, Paul S.
Disposition: Vacated IAD
Abstract Terms:
    - Regulations
    - Eligibility

Abstract:  The IAD is vacated. Mr. Ward is an eligible applicant for an LLP license based on ownership of the fishing history of the F/V LADY GRACE and therefore meets the second definition of eligible applicant in 50 C.F.R. 679.2. Mr. Ward owns the fishing history of the F/V LADY GRACE according to the express terms of a written contract that clearly and unambiguously transferred the LLP-qualifying history of the F/V LADY GRACE to Mr. Ward.

Federal regulation 50 C.F.R. 679.4(k)(3)(iv)(E) provides that "[a]n applicant may request a change of gear designation based on gear used from the vessel during the period beginning June 18, 1995 to February 7, 1998." It does not matter whether the vessel on which the gear was used was an original qualifying vessel under the Vessel Moratorium Program or a vessel that obtained a moratorium qualification by transfer from an original qualifying vessel. Since Mr. Ward made five harvests of groundfish with trawl gear between June 18, 1995 and February 7, 1998, he is entitled to have a trawl gear designation on his LLP groundfish license.

A contrary rule "that Mr. Ward had to make trawl gear harvests from an LLP qualified vessel" would conflict with the definition of eligible applicant in the LLP in 50 C.F.R. 679.2. Section 679.2 grants equal status to eligible applicants by virtue of owning a qualified vessel and eligible applicants by virtue of owning the fishing history of a qualified vessel. A contrary rule would conflict with the transferability of moratorium qualifications, a basic structural feature of the Vessel Moratorium Program.

Further action: Decision on Reconsideration affirmed Decision and gave it a new effective date.  To Decision »
01-0011 Groundfish/Crab LLP
Issued: 2/27/2003 | Effective: 3/31/2003
Appellant: WILSON, Oscar, Sr.
Disposition: Vacated IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant was determined on appeal to be an eligible applicant for an LLP license based on the fishing history of the F/V NANA JOANN, formerly the F/V AMANDA DAWN. Appellant met the second definition of "eligible applicant" in 50 C.F.R. 679.2: he is a person to whom the LLP-qualifying fishing history of the F/V NANA JOANN "has been transferred . . . by the express terms of a written contract that clearly and unambiguously provides that the qualifications for a license under the LLP have been transferred or retained." Appellant satisfied this definition by a combination of three documents. An applicant may rely on the combination of several documents to constitute a written contract.

Appellant did not present any evidence or argument that the length overall of the F/V NANA JOANN in the official LLP record is incorrect. Therefore, the length overall of the F/V NANA JOANN is as stated in the official LLP record.  To Decision »
02-0023 Groundfish/Crab LLP
Issued: 2/26/2003 | Effective: 3/28/2003
Appellant: LOVEJOY, Stephen L.
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements
    - Eligibility

Abstract:  Appellant did not qualify for an LLP groundfish license with an Aleutian Islands endorsement because the F/V MISS JULI did not harvest groundfish in the AI during the endorsement qualification period [EQP], January l, 1992 to June 17, 1995, as required by 50 C.F.R. 679.4(k)(4)(ii)(A). Appellant's claimed cod harvests for crab bait did not meet the EQP requirement because these harvests were not commercial harvests.

Appellant did not present any specific arguments that he met the requirements of the unavoidable circumstances regulation, 50 C.F.R. 679.4(k)(8)(iv), for an LLP groundfish license with an AI endorsement and therefore did not carry his burden of proving he satisfied the regulation. Appellant also did not harvest groundfish in the AI from the F/V MISS JULI by June 17, 1995, which is required by the unavoidable circumstances regulation in 50 C.F.R. 679.4(k)(8)(iv)(E).

Appellant did not qualify for an LLP crab license with a BSAI bairdi/opilio endorsement and an AI red king endorsement. Appellant met the general qualification period requirement but he did not harvest any crab from the F/V MISS JULI between January l, 1992 and December 31, 1994. Appellant therefore did not meet the endorsement qualification period requirements for these endorsements in 50 C.F.R. 679.4(k)(5)(ii)(B) & (E).

Appellant did not satisfy the requirements in the unavoidable circumstances regulation, 50 C.F.R. 679.4(k)(8)(iv), for an LLP crab license with a BSAI bairdi/opilio endorsement and an AI red king endorsement. Appellant asserted that the closure of these fisheries made it impossible for him to make the required harvests. The Dutch Harbor Tanner crab fishery was open throughout the general and endorsement qualification periods for this endorsement. Therefore, the claimed unavoidable circumstances did not actually occur, as required by 50 C.F.R. 679.4(k)(8)(iv)(C).

The Dutch Harbor red king crab fishery did close in 1983 and has not reopened. Appellant did not prove that the closure of this fishery constituted unavoidable circumstances, as defined by the unavoidable circumstances regulation, for two reasons. First, Appellant did not show that the closure of this fishery was unique to him or his vessel. Second, Appellant did not harvest red king crab in the AI subarea after the unavoidable circumstances but before June 17, 1995.  To Decision »
01-0020 Groundfish/Crab LLP
Issued: 2/19/2003 | Effective: 3/21/2003
Appellant: BLAKE, Henry J., Jr.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant was not an eligible applicant, as defined by 50 C.F.R. 679.2, for an LLP license based on the fishing history of the F/V NEPTUNE. Appellant sold the F/V NEPTUNE by a written contract on June 12, 1995. The fact that the buyer of the vessel did not pay for the vessel as required by the contract and declared bankruptcy does not mean that Appellant retained ownership of the vessel. The contract did not delay transfer of ownership of the vessel from Appellant until the buyer made all the payments. The contract did not retain to Appellant the fishing history of the F/V NEPTUNE. Appellant therefore neither owned the F/V NEPTUNE on June 17, 1995 nor owned the fishing history of the F/V NEPTUNE, apart from the vessel.   To Decision »
01-0015 Groundfish/Crab LLP
Issued: 2/14/2003 | Effective: 3/17/2003
Appellant: NEWLUN, Scott E.
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements

Abstract:  The issue was whether Appellant qualified for a Central Gulf area endorsement to its LLP groundfish license, based on the F/V DART. AO found that Appellant's evidence (fish tickets) did not show that the vessel made a documented harvest of groundfish during the endorsement qualifying period for the Central Gulf groundfish fishery. AO concluded that Appellant did not qualify for a Central Gulf area endorsement.  To Decision »
01-0017 Groundfish/Crab LLP
Issued: 2/10/2003 | Effective: 3/12/2003
Appellant: OSTERBACK, David O.
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements
    - Vessel

Abstract:  The issues were whether Appellant qualified for an LLP groundfish license endorsed for the Western Gulf groundfish fishery; and what the lenght overall (LOA) of the F/V BALBOA was on June 24, 1992, June 17, 1995, and at the time of LLP application. AO found that Appellant did not produce evidence that the F/V BALBOA made a documented harvest of LLP groundfish during the endorsement qualifying period for the Western Gulf groundfish fishery; and that the LOA of the F/V BALBOA is currently 38 feet, and was so on June 24, 1992, and on June 17, 1995. AO concluded that Appellant did not qualify for an LLP groundfish license endorsed for the Western Gulf groundfish fishery.  To Decision »
01-0006 Groundfish/Crab LLP
Issued: 2/7/2003 | Effective: 3/10/2003
Appellant: WILSON, David R., Sr.
Disposition: IAD affirmed in part, vacated
Abstract Terms:
    - Endorsements
    - Vessel

Abstract:  The issues were whether Appellant qualified for an LLP groundfish license endorsement for the Aleutian Islands, based on an "unavoidable circumstance," and whether the length overall (LOA) of the F/V DESTINATION supported an increase in the 124-foot MLOA specified on Appellant's LLP groundfish license. AO found that the F/V DESTINATION did not make the requisite documented harvest to qualify for an Aleutian Islands groundfish endorsement; and that the LOA of the F/V DESTINATION was 110 feet on June 17, 1995, and is currently 110 feet. AO concluded that an unprofitable market could not be legally construed as an "unavoidable circumstance" (that prevented the vessel from making the requisite documented harvest) because the F/V DESTINATION did not make at least one documented harvest of Aleutian Islands groundfish, after the alleged unavoidable circumstance, but before June 17, 1995. AO also concluded that even though Appellant had produced credible evidence (a vessel trim and stability report), the evidence did not support any change in the 124-foot MLOA on his LLP licenses.  To Decision »
01-0005 Groundfish/Crab LLP
Issued: 2/3/2003 | Effective: 3/5/2003
Appellant: SEABECK, Kevin
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Vessel

Abstract:  The issues were whether Appellant qualified for an LLP groundfish license endorsement for the Western Gulf and Southeast Outside groundfish fisheries; and whether Appellant's LLP groundfish license qualified for designation as a catcher-processor vessel. AO found that Appellant's fish tickets did not show that the F/V SIERRA MAR made the requisite documented harvests during the qualifying endorsement periods for the Western Gulf and Southeast groundfish fisheries; and that Appellant did not produce proof that the F/V SIERRA MAR processed groundfish during the requisite time periods for a catcher-processor designation. AO concluded that Appellant's LLP groundfish license did not qualify for (1) Western Gulf and Southeast Outside groundfish fisheries endorsements; and (2) designation as a catcher-processor vessel under the LLP.   To Decision »
02-0027 Groundfish/Crab LLP
Issued: 1/29/2003 | Effective: 3/3/2003
Appellant: VELSKO, John
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant did not qualify for an LLP groundfish license with Western Gulf and Central Gulf endorsements, based on the fishing history of the F/V WAHOO. According to the official LLP record, the only harvests of license limitation groundfish made by the F/V WAHOO occurred on June l, 1988 and June 2, 1988 in the Gulf of Alaska. Appellant did not submit any argument or evidence that the official LLP record was incorrect and that the F/V WAHOO made any other groundfish harvests.

Based on the fishing history of the F/V WAHOO, Appellant met the general qualification period requirement for harvests for an LLP license with Western and Central Gulf endorsements in 50 C.F.R. 679.4(k)(4)(i)(B)(1). But Appellant did not satisfy the endorsement qualification period requirement for a Western Gulf endorsement in 50 C.F.R. 679.4(k)(4)(ii)(G), because the F/V WAHOO did not harvest license limitation groundfish in the Western Gulf between January l, 1992 and June 17, 1995. Similarly, Appellant did not satisfy the endorsement qualification period requirement for a Central Gulf endorsement in 50 C.F.R. 679.4(k)(4)(ii)(K), because the F/V WAHOO did not harvest license limitation groundfish in the Central Gulf between January l, 1992 and June 17, 1995.

Appellant asserted that the F/V WAHOO was in a serious state of disrepair when he bought it in 1997. No matter the state of disrepair of the F/V WAHOO, Appellant could not receive credit for any harvests under the unavoidable circumstances regulation because he did not harvest groundfish in the Western Gulf or the Central Gulf area between any claimed unavoidable circumstances and June 17, 1995, as required by 50 C.F.R. 679.4(k)(8)(iv)(E).   To Decision »
00-0006R Groundfish/Crab LLP
Issued: 1/24/2003 | Effective: 2/24/2003
Appellant: OPHEIM, Chris R., Sr. (Reconsideration)
Disposition: Affirmed OAA
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Appellant's motion for reconsideration was granted after AO found that he had not addressed some of Appellant's equitable tolling arguments. In the Decision on Reconsideration, AO found that (1) the return of Appellant's mail to RAM after 18 months of a change of address was in keeping with the common practice of the U.S. Postal Service; (2) Appellant was not a minor, but an adult, during the LLP application period; (3) Appellant could have reasonably found out about the LLP application deadline; (4) even if Appellant's fear of arrest for arson contributed to his "great depression," it would not have interfered with his ability to find out about the LLP application period, and to submit an application before the LLP application deadline; (5) Appellant never claimed or produced evidence on appeal that his wife's depression prevented him from submitting a change of address to RAM; and (6) it was not beyond Appellant's control to tell RAM about his change of address either before or during the LLP application period. AO concluded that (1) the return of Appellant's mail to RAM by the U.S. Postal Service could not be construed as an "extraordinary circumstance" for purposes of tolling the LLP application deadline; (2) Appellant's "minority" status as an Alaska native was not a legal excuse (under the doctrine of equitable tolling) for tolling the LLP application deadline; (3) Appellant's "ignorance" of LLP requirements was not a legal excuse (under the doctrine of equitable tolling) for tolling the LLP application deadline: (4) if Appellant relied upon his "severely depressed" wife to find out about LLP requirements and to submit a timely LLP application, that does not legally excuse him from meeting the LLP application deadline under the doctrine of equitable tolling; (5) neither Appellant's, nor his wife's, depression constituted an "extraordinary circumstance" that prevented them from telling RAM of Appellant's change of address; and (6) Appellant's late application cannot be legally excused based on financial hardship.  To Decision »
00-0015 Groundfish/Crab LLP
Issued: 12/31/2002 | Effective: 1/30/2003
Appellant: DARJEN, INC
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements
    - Eligibility

Abstract:  The issue was whether Appellant qualified for an LLP groundfish license endorsement for Bering Sea groundfish, based on the harvest of Pacific cod for crab bait aboard the F/V ALASKA SPIRIT. AO found that the F/V ALASKA SPIRIT did not make a documented harvest because the harvest of Pacific cod for crab bait was not recorded on a state fish ticket, Federal catch report, or any other document that shows the F/V ALASKA SPIRIT harvested the fish commercially. AO concluded that Appellant did not qualify for an LLP groundfish license endorsement for the Bering Sea, based on the harvest of Pacific cod for crab bait aboard the F/V ALASKA SPIRIT.  To Decision »
00-0006 Groundfish/Crab LLP
Issued: 12/27/2002 | Effective: 1/27/2003
Appellant: OPHEIM, Chris R., Sr.
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  The issue was whether Appellant filed a timely application for an LLP groundfish license. AO found that (1) Appellant filed an LLP application after the application deadline; (2) RAM had mailed an LLP application form to Appellant's last known address before the application deadline; and (3) Appellant was physically, mentally, emotionally, and legally able to apply for an LLP license during the LLP application period. Appellant asserted that he had lost his vessel and livelihood as a commercial fisherman at least four years before the LLP application deadline; he had moved his family to a different city while caring for an aging parent; he suffered from depression at least two years before the LLP application deadline; his wife suffered from depression during the LLP application period; and he is currently underemployed and in need of financial aid. AO concluded that (1) RAM had complied with its regulatory duty to send an LLP application to Appellant; (2) the untimely filing of Appellant's LLP application could not be excused by the doctrine of equitable tolling; and (3) NMFS was not required to accept Appellant's application for an LLP groundfish license as timely filed.   To Decision »
00-0003 Groundfish/Crab LLP
Issued: 12/5/2002 | Effective: 1/6/2003
Appellant: John B. Lee III
Disposition: Vacated IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  See further action.  To Decision »
02-0011 Groundfish/Crab LLP
Issued: 11/26/2002 | Effective: 12/26/2002
Appellant: OCEAN CREST FISHERIES
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Endorsements

Abstract:  The issue was whether Appellant qualified for an LLP groundfish license, based on an "unavoidable circumstance." The appeals officer found that the F/V CREST did not make the requisite number of documented harvests to qualify for an LLP groundfish license for the Aleutian Islands, Bering Sea, Central Gulf, Southeast Outside, and Western Gulf, groundfish fisheries. The appeals officer concluded that neither the theft of the F/V CREST's fishing gear in 1990, nor the financial difficulties during 1993 and 1994 of a company that owed Appellant money, could be legally construed as an "unavoidable circumstance" (that prevented the vessel from making the requiste documented harvests) because the F/V CREST did not make at least one documented harvest of groundfish in the Aleutian Islands, Bering Sea, Central Gulf, Southeast Outside, and Western Gulf, groundfish fisheries, after the alleged events, but before June 17, 1995.   To Decision »
00-0005 Groundfish/Crab LLP
Issued: 11/8/2002 | Effective: 12/9/2002
Appellant: REUTOV, Afanasy
Disposition: Vacated IAD
Abstract Terms:
    - Eligibility
    - Untimely Applications and Appeals

Abstract:  Appellant applied for two licenses: a groundfish license based on the fishing history of the F/V NEVA and a groundfish license based on the fishing history of the F/V DELTA. The IAD denied Appellant both licenses, stating that he applied for both licenses after the LLP application deadline of December 17, 1999.

NMFS had in its possession two LLP applications based on the F/V NEVA: one dated December 2, 1999, without an envelope showing when it was postmarked, and without a datestamp showing when NMFS received it; another dated January 25, 2000, postmarked in January 2000, datestamped as received on February 1, 2000. The appeals officer held a hearing to determine whether Appellant filed the application based on the F/V NEVA by the LLP application deadline.

The appeals officer concluded that Appellant filed an application for an LLP license based on the history of the F/V NEVA by the LLP application deadline. Appellant was therefore an eligible applicant for any LLP licenses based on the history of the F/V NEVA.

The appeals officer concluded that Appellant filed an application for an LLP license based on the history of the F/V DELTA after the LLP application deadline. The appeals officer concluded that NMFS should treat the F/V DELTA application as amending Appellant's F/V NEVA application and relating back to the date of filing of the F/V NEVA application.

The appeals officer based this conclusion on the following: [1] the definition of "eligible applicant" in 50 C.F.R. 679.2 as a qualified person "who submitted an application during the application period announced by NMFS" is ambiguous; [2] NMFS policy is to apply the application deadline liberally and to accept an application as timely if the applicant took decisive steps to apply by the application deadline, [3] the structure of the application process permits NMFS and applicants to correct mistakes that either made at the time the applicant timely filed for an LLP license; [4] Appellant applied for an LLP license based on the F/V DELTA before RAM had taken any action on his LLP application based on the F/V NEVA and before RAM had taken any action on any application based on the F/V DELTA.   To Decision »
02-0008A Groundfish/Crab LLP
Issued: 9/27/2002 | Effective: 10/28/2002
Appellant: DONOVICK, Mark
Disposition: Affirmed
Abstract Terms:
    - Eligibility
    - Endorsements
    - Vessel

Abstract:  The IAD was affirmed with respect to Appellant's application for an LLP crab license with an opilio/bairdi endorsement. The F/V ROUGHNECK did not make the harvests required in the endorsement qualification: three opilio or bairdi harvests between January l, 1992 and December 31, 1994. The F/V ROUGHNECK therefore did not meet the standard requirements for this endorsement in 50 C.F.R. 679.4(k)(5)(ii).

The F/V ROUGHNECK did not receive this endorsement based on the special provision applicable to lost vessels in 50 C.F.R. 679.4(k)(8)(iii), because that required that the lost vessel had met all the requirements for an endorsement before it sank. Appellant was not eligible for an LLP license based on the unavoidable circumstances regulation because the F/V ST. DOMINICK, which was the replacement vessel for the F/V ROUGHNECK, did not harvest bairdi or opilio crab after the F/V ROUGHNECK sank but before June 17, 1995, as required by 50 C.F.R. 679.4(k)(8)(iv)(E).

Because of new fish ticket evidence that came to light during the appeal process, Appellant's LLP groundfish license application was remanded to Restricted Access Management (RAM) for review.  To Decision »
00-0010 Groundfish/Crab LLP
Issued: 9/16/2002 | Effective: 10/16/2002
Appellant: SCHUMACHER, Jonathan
Disposition: Affirmed IAD
Abstract Terms:
    - Rehabilitation Act of 1973

Abstract:  The issue was whether Appellant was able to prove that he was an eligible applicant for an LLP license pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794(a). The AO found that Appellant was not eligible for an LLP license pursuant to the Rehabilitation Act.

Appellant proposed that he should receive an LLP license, under the Rehabilitation Act, because he was injured while fishing the F/V HALCYON, a vessel which qualified for an LLP license. This is not a reasonable modification of the LLP because it would change the LLP into a program that awards LLP licenses as compensation for commercial fishing injuries.

ant proposed that a disabled person should receive an LLP license, under the Rehabilitation Act, if the disabled person can prove that, but for his or her disability, the person would have owned a qualifying vessel on June 17, 1995. This is not a reasonable modification of the LLP because the criteria of vessel ownership does not discriminate against disabled persons, it waives an essential requirement of the LLP and it results in the same catch history being used to issue two LLP licenses.

Assuming that Appellant could receive an LLP license if he proved that he would have owned a qualifying vessel but for his disability, Appellant did not prove that he would have owned either the F/V HALCYON or any other qualifying vessel but for his disability. Appellant could not receive an LLP license based on the unavoidable circumstances regulation, 50 C.F.R. 679.4(k)(8)(iv), because he did not own a vessel on June 17, 1995 which made the harvests as specified in the regulation.  To Decision »
01-0018 Groundfish/Crab LLP
Issued: 8/2/2002 | Effective: 9/3/2002
Appellant: SNAPP, Stephen
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant did not qualify for an LLP groundfish license, based on the fishing history of the F/V ARDIE. The basic general qualification period was January l, 1988 to June 27, 1992. [50 C.F.R. 679.4(k)(4)(i)(B)] It is the date and place of the harvest, not the delivery, that determines whether a harvest satisfies the requirement for a harvest in the general qualification period or endorsement qualification period.

According to the official LLP record, the F/V ARDIE did not make the groundfish harvest in the general qualification period that is required for a groundfish license with a Southeast Outside endorsement. According to the official LLP record, the F/V ARDIE harvested three pounds of rockfish in the Southeast Outside area on July 5, 1992. While the actual fish ticket suggests that the harvest occurred on July l, 1992, that date is still after June 27, 1992, and therefore not within the general qualification period. Therefore, Appellant did not prove that he harvested license limitation groundfish on or before June 27, 1992.  To Decision »
00-0014 American Fisheries Act
Issued: 7/11/2002 | Effective: 8/9/2002
Appellant: TYNES ENTERPRISES, INC
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements

Abstract:  RAM denied Appellant's application for a "crab sideboard endorsement" to harvest Bering Sea/Aleutian Islands C. opilio Tanner crab on the catcher vessel permit issued to the F/V AMERICAN EAGLE under the AFA. Appellants are three companies that each hold a one-third interest in the F/V AMERICAN EAGLE. Hjelle Enterprises, Inc., also owns the F/V ALEUTIAN ROVER. Appellants argued that the F/V AMERICAN EAGLE's AFA catcher vessel permit should be endorsed for opilio crab based on the combined fishing histories of the F/V AMERICAN EAGLE and the F/V ALEUTIAN ROVER.

AO concluded that NMFS did not have the authority under the crab sideboard regulation, 50 C.F.R. 679.4(l)(3)(ii)(D), to endorse for opilio crab the F/V AMERICAN EAGLE's AFA catcher vessel permit based on the combined fishing history of the F/V AMERICAN EAGLE and the F/V ALEUTIAN ROVER.  To Decision »
01-0022 Groundfish/Crab LLP
Issued: 7/10/2002 | Effective: 8/9/2002
Appellant: LITTLE ANN, Inc
Disposition: Affirmed IAD
Abstract Terms:

Abstract:  Appellant claimed it is entitled to an LLP crab license based on the "unavoidable circumstance"of losing the F/V LITTLE ANN at sea on May 1, 1990. AO found that neither the vessel nor a replacement made a documented harvest of crab within the endorsement qualifying period after the sinking. Appellant argued that the requirement of a documented harvest after the unavoidable circumstance is "arbitrary and capricious" and that it is entitled to an LLP crab license because it has satisfied all other requirements of the unavoidable circumstances exception.

AO concluded that 1) the AO does not have the authority to determine whether any portion of the unavoidable circumstances exception is arbitrary and capricious; and 2) the Appellant does not qualify for an LLP crab license based on the exception because it did not make a documented harvest after the circumstance and before the end of the endorsement qualifying period.  To Decision »
01-0016 Groundfish/Crab LLP
Issued: 6/25/2002 | Effective: 7/25/2002
Appellant: HURST, Robert K.
Disposition: Vacated IAD
Abstract Terms:
    - Vessel

Abstract:  Appellant challenged RAM's determination that his LLP qualifying vessel, the F/V JENNIE GIRL, had a length overall (LOA) of 38 feet on June 24, 1992. Appellant claimed the vessel's LOA was 44 feet on that date. The official LLP record, based on information reported to the State of Alaska or NMFS by an applicant for a state or federal license or permit, showed the F/V JENNIE GIRL's LOA was 38 feet on June 24, 1992. The official record is presumed to be correct. However, upon AO request, the National Vessel Documentation Center of the United States Coast Guard produced two Builder's Certificates for the F/V JENNIE GIRL. Those documents showed the vessel was 44 feet LOA on August 1, 1982, and November 18, 1982. Appellant produced documents showing the F/V JENNIE GIRL was 44 feet on January 1, 1995, and July 1, 2000. Based on these documents, AO found the LOA of the F/V JENNIE GIRL was 44 feet on June 24, 1992. AO concluded that RAM was required to designate Appellant's LLP groundfish license with an maximum length overall (MLOA) based on an LOA of 44 feet.   To Decision »
01-0021 Groundfish/Crab LLP
Issued: 5/23/2002 | Effective: 6/24/2002
Appellant: KINGSLEY, Russell S.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  RAM denied Appellant's application for LLP groundfish and crab licenses. AO found that (1) the F/V DRU-DROP did not make documented crab harvests during the general and endorsement qualification periods for an LLP crab license; and (2) while the F/V DRU-DROP did harvest groundfish during the qualifying period for a Central Gulf endorsement, it did not make a harvest during the general qualifying period for a groundfish LLP license. Under LLP regulations, Appellant must have harvested groundfish during both the general and endorsement qualifying periods to qualify for an LLP groundfish license.

AO concluded that Appellant did not qualify for either an LLP groundfish or LLP crab license, based on the fishing history of the F/V DRU-DROP.   To Decision »
00-0013 Groundfish/Crab LLP
Issued: 4/12/2002 | Effective: 5/13/2002
Appellant: PEQUOD, INC
Disposition: Affirmed IAD in part, vacated
Abstract Terms:
    - Endorsements

Abstract:  Appellant claimed it did not make the required harvests for certain groundfish and crab endorsements because of unavoidable circumstances.

AO concluded that Appellant did not qualify for endorsements to its LLP groundfish license based on unavoidable circumstances because (1) it did not harvest groundfish after the claimed unavoidable circumstances and before June 17, 1995 as required by LLP regulations; and (2) the lack of processing facilities on Adak Island was not an unavoidable circumstance as defined by LLP regulations because it was not unique to Appellant or the F/V EARLY DAWN. AO also concluded that Appellant did qualify for an Aleutian Island brown king endorsement on its LLP crab license because (1) the grounding of the F/V EARLY DAWN was an unavoidable circumstance as defined by LLP regulations; and (2) the F/V EARLY DAWN made three harvests of AI brown king crab after the unavoidable circumstances and before June 17, 1995, as required by LLP regulations.   To Decision »
00-0012 Groundfish/Crab LLP
Issued: 4/5/2002 | Effective: 5/6/2002
Appellant: TENNISON, Ronald J.
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements

Abstract:  RAM denied Appellant's application for certain LLP crab license endorsements and his application for an LLP groundfish license with endorsements. Appellant claimed that (1) he qualified for an LLP groundfish license based on certain Pacific cod harvests made aboard the F/V DESTINY; and (2) he qualified for an LLP groundfish license and certain crab endorsements based on his claim of unavoidable circumstances.

AO concluded that (1) Appellant was not qualified for a groundfish license because the F/V DESTINY did not harvest Pacific cod during the endorsement qualifying period and the vessel's harvests of cod for crab bait were not the documented harvests necessary for license qualification; and (2) Appellant's unavoidable circumstances claim failed as to the crab species endorsements because the F/V DESTINY did not make a documented crab harvest after the unavoidable circumstances ended but before June 17, 1995 as required by LLP regulations; and (3) Appellant's unavoidable circumstances claim failed as to groundfish because he did not make the required documented harvest of LLP groundfish between January 1, 1998 and February 9, 1992.  To Decision »
00-0011 Groundfish/Crab LLP
Issued: 2/26/2002 | Effective: 3/28/2002
Appellant: BROGDON, Paula J.
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements

Abstract:  RAM denied Appellant's applications for certain endorsements to her groundfish and crab LLP licenses. Appellant based her claim to the endorsements on (1) unavoidable circumstances; and (2) Pacific cod harvested and used as crab bait aboard the F/V ISLE ROYAL.

AO concluded that (1) Appellant's claim of unavoidable circumstances failed because the alleged circumstances occurred after the endorsement qualification period and therefore could not have been the cause of the vessel's failure to make the documented harvests necessary to receive the endorsements Appellant sought; and (2) Appellant's alleged harvests of Pacific cod did not qualify her for the LLP groundfish license endorsements she sought because they did not result from commercial fishing as defined in the Magnuson-Stevens Fishery Conservation and Management Act.  To Decision »
01-0004 Groundfish/Crab LLP
Issued: 1/18/2002 | Effective: 2/19/2002
Appellant: FERRIS, Willard S.
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements

Abstract:  RAM denied Appellant's request for endorsements to his groundfish LLP license for the Bering Sea and the Aleutian Islands. Appellant claimed he harvested Pacific cod aboard the F/V SEABROOKE in both the Bering Sea and Aleutian Islands between January 1992 and September 1995, and used the cod for crab bait. AO found that Appellant's alleged cod harvests aboard the F/V SEABROOKE were not made with the intent to enter commerce, and did not enter commerce through sale, barter, or trade.

AO concluded that (1) to be considered a documented harvest under the LLP program, a harvest must be a lawful commercial fishing harvest; (2) the F/V SEABROOKE was not engaged in the commercial fishing of LLP groundfish when it harvested Pacific cod to use as crab bait on the same vessel; and (3) the harvests were not documented and therefore did not qualify Appellant for LLP groundfish license endorsements for the Bering Sea and Aleutian Islands groundfish fisheries.  To Decision »
98-0004R Halibut/Sablefish IFQ
Issued: 12/6/2001 | Effective:
Appellant: ESTATE OF NGHIA NGUYEN (Reconsideration)
Disposition:
Abstract Terms:

Abstract:    To Decision »
98-0004 Halibut/Sablefish IFQ
Issued: 9/27/2001 | Effective: 10/29/2001
Appellant: NGUYEN, Nghia (Estate)
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Appellant claimed NMFS should have (1) tolled, or suspended, the IFQ application deadline of July 15, 1994 until May 29, 1998 because of the extraordinary circumstances resulting from the disappearance of Mr. Nguyen; and (2) accepted Appellant's application as timely. AO found that (1) Appellant received, or clearly could have received, a death certificate for Mr. Nguyen by August 7, 1997; (2) Appellant filed an IFQ application on May 29, 1998; and (3) the length of time between August 7, 1997 and May 29, 1998 was 295 days.

AO concluded that (1) the extraordinary circumstances that prevented Appellant's applying for an IFQ permit within the original IFQ application period ended on August 7, 1997 when Appellant received a death certificate for Mr. Nguyen; and (2) a late applicant's obligation to act diligently to file and IFQ application begins with the end of the extraordinary circumstances; (3) as a matter of law, a late applicant who files an IFQ application 295 days after the end of the extraordinary circumstances has not acted diligently; and (4) Appellant's IFQ application should not be accepted as timely filed.   To Decision »
95-00843 Halibut/Sablefish IFQ
Issued: 8/24/2001 | Effective: 9/24/2001
Appellant: PROWLER PARTNERSHIP (Decision on District Court Remand)
Disposition: IAD Affirmed
Abstract Terms:

Abstract:    To Decision »
01-0003 Groundfish/Crab LLP
Issued: 7/10/2001 | Effective: 8/9/2001
Appellant: LEWIS, Bruce
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  RAM denied Appellant's application for groundfish and crab LLP licenses based on the fishing history of eight vessels. AO concluded that Appellant was not entitled to the LLP groundfish or crab licenses he applied for because (1) on June 17, 1995 he did not own a vessel that had made a documented harvest of LLP groundfish or crab; and (2) because he did not own the fishing history of a vessel that had made a documented harvest of LLP groundfish or crab.   To Decision »
00-0007 Groundfish/Crab LLP
Issued: 6/21/2001 | Effective: 7/23/2001
Appellant: MURRAY, Jeffrey
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Appellant filed an application for an LLP groundfish license more than a month after the application deadline. Appellant claimed that (1) he was never sent an LLP application; (2) he would have applied before the deadline had he known the F/V SOUTHWIND qualified him for an LLP license; and (3) RAM told him after the application deadline that he would have qualified for the LLP groundfish license based on groundfish harvests made from the F/V SOUTHWIND between 1988 and 1995.

AO concluded that: (1) RAM was not required to send an LLP application to Appellant because the official LLP record did not show the F/V SOUTHWIND had a qualifying fishing history; (2) even if RAM had told Appellant he was qualified for an LLP license, this would not have excused him for filing his application late; (3) Appellant was not entitled to have the application deadline "equitably tolled" because he was not incompetent or disabled during the application period; and (4) Appellant was not entitled to have RAM accept his application for processing.   To Decision »
01-0002R American Fisheries Act
Issued: 6/15/2001 | Effective: 7/16/2001
Appellant: OCEAN SPRAY PARTNERSHIP (Reconsideration)
Disposition: Affirmed OAA
Abstract Terms:
    - Eligibility

Abstract:  AO concluded that (1) the Decision properly used principles of statutory interpretation; and (2) the Decision to did not misunderstand how Congress intended to benefit the owner of the F/V PROVIDIAN.  To Decision »
01-0002 American Fisheries Act
Issued: 4/13/2001 | Effective: 5/13/2001
Appellant: OCEAN SPRAY PARTNERSHIP
Disposition: Affirmed IAD in part, vacated
Abstract Terms:
    - Statutory Interpretation
    - Eligibility

Abstract:  The F/V OCEAN SPRAY actively participated in the Alaska pollock fishery between 1984 and 1994. In the fall of 1994, the vessel was lost while fishing in the Bering Sea. Appellant replaced the vessel with the F/V PROVIDIAN, completed in late 1998. RAM granted Appellant an AFA catcher vessel permit with an inshore sector endorsement, and stated that the F/V PROVIDIAN was eligible to join the Peter Pan Fleet Cooperative, a catcher vessel cooperative with a suballocation of the inshore pollock harvest. The F/V PROVIDIAN subsequently joined the cooperative. Appellant's right to harvest a percentage of the cooperative's allocation equaled the percentage by which the catch history of the F/V PROVIDIAN increased the cooperative's allocation. Appellant claimed Title V of Pub. L. No. 106-562 requires NMFS to substitute the catch history of the F/V OCEAN SPRAY from 1992-1994 in place of the catch history of the F/V PROVIDIAN for 1995-1997 when NMFS allocates harvest under section 210(b) of the AFA. RAM added the catch history of the F/V OCEAN SPRAY to the catch history of the F/V PROVIDIAN. This addition did not increase the cooperative's allocation because the F/V PROVIDIAN had no catch history during the relevant years (1995-1997). Because the F/V PROVIDIAN's catch history did not increase Peter Pan's allocation, the vessel had a right to harvest 0.00% of Peter Pan's allocation.

AO concluded that Title V of Pub. L. No. 106-562 requires that NMFS substitute the catch history of the F/V OCEAN SPRAY in 1992-1994 for the catch history of the F/V PROVIDIAN in 1995-1997 when making allocations to cooperatives under section 210(b) of the AFA. AO ordered RAM to allocate Bering Sea pollock to Appellant's cooperative based on the 1992-1994 catch history of the F/V OCEAN SPRAY.  To Decision »
00-0008R Groundfish/Crab LLP
Issued: 3/20/2001 | Effective: 4/18/2001
Appellant: WHITEHEAD, Rodney P., F/V Larisa (Reconsideration)
Disposition: Affirmed OAA
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  RAM claimed that (1) it was not required to send an LLP application form to Appellant's CFEC address because addresses from Vessel Moratorium Program (VMP) data are "most likely to be" more "reliable" than CFEC addresses; (2) Appellant would not have received an LLP application and mailed it before the LLP deadline, even if RAM had mailed the application to his CFEC address; and (3) the Decision required RAM to search out "endless" sources of "available" information to determine the last known address of an applicant.

AO concluded that (1) LLP regulations require RAM to send applications to the last known address of an applicant, not to addresses that are the last known for most applicants; (2) RAM has a duty to use the most recent address for an applicant when two or more addresses for that applicant are known to RAM (rather than available to RAM, as the Decision held); (2) Appellant would have received and mailed an application before the deadline if RAM had mailed it to his address listed with the CFEC; and (3) Appellant's application was timely filed as a matter of law.   To Decision »
00-0008 Groundfish/Crab LLP
Issued: 2/8/2001 | Effective: 3/12/2001
Appellant: WHITEHEAD, Rodney P., F/V Larisa
Disposition: Vacated IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  RAM denied Appellant's application for an LLP groundfish license because it was filed after the December 17, 1999 deadline. Appellant claimed he was entitled to have his application treated as timely filed. AO found that (1) LLP regulations require RAM to send an LLP application to Appellant's last known address; (2) RAM's practice was to use the address "first available" to RAM to determine the "best available, most current address" of each eligible applicant; (3) RAM had two different mailing addresses for Appellant when RAM mailed him an application; and (4) Appellant would have received an application form and mailed it back to RAM before the application deadline if RAM had mailed the application to Appellant's "most recent" address, available to RAM from State of Alaska Commercial Fisheries Entry Commission (CFEC) data.

AO concluded that (1) RAM did not send an application to Appellant's last known address; (2) RAM has a duty to ascertain which is the "best available, most current address" when two or more mailing addresses are available to RAM; and (3), as a matter of law, Appellant's application was timely filed.  To Decision »
96-0001 Halibut/Sablefish IFQ
Issued: 1/24/2001 | Effective: 2/23/2001
Appellant: TAYLOR, Coy A.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Lease
    - Vessel

Abstract:  Appellant claimed he was entitled to additional halibut QS under the IFQ program based on his co-ownership or lease of the F/V MORNING STAR and his co-ownership of the F/V WYOMING. The F/V MORNING STAR made qualifying landings in 1985, and the F/V WYOMING made qualifying landings in 1987. AO found that (1) RAM's official record showed that in 1985 Appellant did not own the F/V MORNING STAR on the dates the vessel made qualifying landings; (2) Appellant and the owner of the F/V MORNING STAR did not characterize their business arrangement as a lease; and (3) Appellant did not own the F/V WYOMING during the relevant period in 1987.

AO concluded that Appellant was not entitled to additional qualifying pounds of halibut QS based on either (1) ownership or lease of the F/V MORNING STAR, because Appellant did not own or lease the F/V MORNING STAR during the relevant period; or (2) based on ownership of the F/V WYOMING, because Appellant did not own the F/V WYOMING during the relevant period.  To Decision »
00-0004 Groundfish/Crab LLP
Issued: 12/18/2000 | Effective: 1/17/2001
Appellant: R.J. FIERCE PACKER, LLC
Disposition: Vacated IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant claimed it was entitled to an LLP groundfish license based on its ownership of the fishing history of the F/V YUKON QUEEN, a qualifying vessel for the LLP. On December 28, 1994, New Yukon Queen L.P. [New Yukon] bought the F/V YUKON QUEEN from Seattle-First National Bank [Sea-First]. RAM issued New Yukon a moratorium qualification based on the fishing history of the F/V YUKON QUEEN. On May 2, 1997, New Yukon's creditors placed the company into involuntary bankruptcy, and on October 2, 1998, the United States Bankruptcy Court in Seattle authorized New Yukon to sell the moratorium qualification and fishing history of the F/V YUKON QUEEN to Appellant. Previously, on September 17, 1998, the NMFS had awarded a moratorium qualification to Yukon Queen Fisheries, Ltd. [Yukon Queen], based on the same fishing history of the F/V YUKON QUEEN that Appellant had purchased from New Yukon's Bankruptcy Trustee. [Yukon Queen owned the F/V YUKON QUEEN until Sea-First foreclosed on loans it had made to Yukon Queen; later, Sea-First sold the vessel to New Yukon.] When Appellant applied for an LLP groundfish license based on the history of the F/V YUKON QUEEN, RAM denied its application on the grounds that Appellant did not own the portion of the F/V YUKON QUEEN's fishing history that would entitle Appellant to an LLP license.

AO concluded that (1) as a matter of law, Appellant was entitled to be treated as an owner of the entire fishing history of the F/V YUKON QUEEN up until it was sold by the Bankruptcy Trustee on February 9, 1998; (2) Appellant was an innocent third party purchaser for value of the fishing history of the F/V YUKON QUEEN until it was sold by the Bankruptcy Trustee; and (3) Appellant was an eligible applicant for an LLP license based on the entire fishing history of the F/V YUKON QUEEN up until February 9, 1998.   To Decision »
95-0037 Halibut/Sablefish IFQ
Issued: 11/14/2000 | Effective: 12/14/2000
Appellant: DEAVER, Dennis
Disposition: Affirmed IAD
Abstract Terms:
    - Landings
    - Vessel

Abstract:  Appellant claimed that (1) he was entitled to additional sablefish QS based on a 1989 sablefish delivery by the F/V PACIFIC SUN; and (2) his halibut and sablefish QS should have been reassigned from vessel category C to vessel category B. AO found that (1) the 1989 delivery was not recorded on either a state fish ticket or federal catch report (the fish were turned away by the buyer because they were contaminated by diesel fuel); and (2) Appellant landed halibut on both a category C and a category B vessel in 1991.

AO concluded that (1) the 1989 sablefish delivery did not entitle Appellant to additional sablefish QS because the fish were not legally landed; and (2) Appellant was not entitled to have his sablefish QS, and all of his halibut QS for IFQ regulatory areas 3A, 3B, and 4A, re-assigned from vessel category C to vessel category B. Under IFQ regulations, Appellant's halibut and sablefish QS were properly assigned proportionately between vessel categories C and B because he landed halibut from vessels in each category during his most recent year of participation (1991).   To Decision »
98-0006 Halibut/Sablefish IFQ
Issued: 11/14/2000 | Effective: 12/14/2000
Appellant: DOWIE, Andrew R. and Nicholas J.
Disposition: Affirmed IAD
Abstract Terms:
    - Successor-in-Interest
    - Eligibility
    - Landings

Abstract:  Appellant's claimed they were entitled to an initial issuance of Pacific halibut and sablefish QS as successors to their father's interest in QS, based on halibut and sablefish landings he made while leasing the F/V MARGARET G in 1988.

AO concluded that Appellants were not entitled to an initial issuance of QS based on their father's lease of the F/V MARGARET G in 1988 because the vessel did not make legal landings of Pacific halibut or sablefish in 1988. The landings were not legal because the fish tickets did not satisfy State of Alaska regulatory requirements and because the vessel did not have a valid ADF&G intent to operate when the vessel harvested halibut and sablefish.  To Decision »
97-0016R Halibut/Sablefish IFQ
Issued: 10/3/2000 | Effective: 11/2/2000
Appellant: LEWIS, Bruce A. (Reconsideration)
Disposition: Affirmed OAA
Abstract Terms:
    - Corporation Changes
    - Successor-in-Interest
    - Lease

Abstract:  On Reconsideration, RAM claimed AO mistakenly concluded that Appellant leased the F/V KAELA C from Cal Kaela, Inc., between March 15, 1990, and May 8, 1990. AO reviewed RAM's motion for reconsideration and discovered it had overlooked material issues of fact and law.

AO concluded that (1) even though RAM does not have to, this Office may consider untimely evidence for purposes of initial issuance of QS so long as the evidence is related to a timely claim made before RAM and the appeal is timely filed; (2) the deadline for filing an appeal of the F/V CLIPPER ENDEAVOR and F/V KAELA C did not run from the date of issuance of halibut QS because the issuance of QS did not constitute a denial of Appellant's claim of the lease of the two vessels; and (3) the fact AO overlooked facts and law did not change the outcome of the Decision, that Appellant leased the F/V KAELA C between March 15, 1990, and May 8, 1990.   To Decision »
95-0143 Halibut/Sablefish IFQ
Issued: 9/21/2000 | Effective: 10/23/2000
Appellant: STEWART, Thomas L.
Disposition: Affirmed IAD
Abstract Terms:
    - Lease
    - Partnership

Abstract:  Appellant claimed that he and Mr. James Miller leased the F/V ALEUTIAN SPIRIT as a partnership from Mr. Miller, the vessel's owner, during the sablefish fishing seasons of 1987, 1988, and 1989. AO found that (1) the written black cod agreement between the parties in 1989 did not indicate a vessel lease; (2) Appellant and Mr. Miller did not lease the F/V ALEUTIAN SPIRIT from Mr. Miller, nor did they characterize their business arrangement as a lease or treat the operations of the vessel as a partnership for tax, accounting, settlement, or insurance purposes during the relevant years; and (3) the parties did not jointly pay or incur financial risk with regard to the vessel's operating expenses.

AO concluded that (1) the parties did not lease the F/V ALEUTIAN SPIRIT as a partnership during 1987, 1988, or 1989; and (2) Appellant was ineligible for the initial issuance of QS based on sablefish landings made from the F/V ALEUTIAN SPIRIT during 1987, 1988, and 1989.   To Decision »
98-0003 Halibut/Sablefish IFQ
Issued: 7/19/2000 | Effective: 8/18/2000
Appellant: SCHONES, Stanley J.
Disposition: Vacated IAD
Abstract Terms:
    - Vessel

Abstract:  Appellant requested reassignment of his halibut QS from vessel category C to vessel category B under the IFQ Program for Pacific halibut and sablefish. The IAD denied Appellant's request for reassignment because (1) RAM's official record showed that Appellant owned and landed halibut from a category C vessel in 1991; and (2) Appellant's request was not timely. AO found that (1) Appellant owned and landed halibut from the F/V MISS BERDIE, a category B vessel, during 1990, Appellant's most recent year of participation in the halibut fishery; and (2) S.R.S., Inc., and not Appellant, owned the F/V EMERALD SEA, a category C vessel, in 1990 and 1991.

AO concluded that: (1) IFQ regulations do not impose a time deadline on an applicant for QS to request a vessel category change; (2) Appellant's request to reassign his QS to a category B vessel could be heard on appeal; (3) Appellant was entitled to have his halibut QS reassigned to vessel category B because the Appellant landed halibut from the F/V MISS BERDIE, a category B vessel, during his most recent year of participation in the halibut fishery.  To Decision »
95-0041 Halibut/Sablefish IFQ
Issued: 7/11/2000 | Effective: 8/10/2000
Appellant: BOGGS ENTERPRISES, Inc.
Disposition: Affirmed IAD
Abstract Terms:
    - Due Process
    - Vessel

Abstract:  Appellant argued that (1) its sablefish QS should be reassigned from vessel category C to vessel category A because Appellant harvested sablefish during the QS qualifying years exclusively from a category A vessel; and (2) assignment of Appellant's sablefish QS to vessel category C violates IFQ regulations, the Magnuson Act, and the due process and equal protection clauses of the U.S. Constitution.

AO concluded that: (1) Appellant's QS should not be reassigned to a category A vessel because IFQ regulations require RAM to assign a qualified person's sablefish QS to the vessel category used to land sablefish or halibut in the person's last year of harvesting either species between January 1, 1988 and September 25, 1991; and (2) the AO does not have the authority to determine whether assignment of Appellant's QS to vessel category C violates the Magnuson Act or the due process and equal protection clauses of the U.S. Constitution.   To Decision »
96-0067R Halibut/Sablefish IFQ
Issued: 6/29/2000 | Effective: 7/31/2000
Appellant: LEVENSON, Mark (Reconsideration)
Disposition: Affirmed OAA
Abstract Terms:
    - IFQ Account

Abstract:  On Reconsideration, Appellant asserted that his IFQ account should be adjusted to reflect the amounts recorded on his 1995 state fish tickets. Appellant claimed the registered buyer did not report the correct weight of the fish to NMFS and therefore the amounts recorded on the NMFS landing reports are incorrect. AO found that (1) on appeal, Appellant did not claim or produce evidence to show the registered buyer reported the incorrect weight to NMFS; (2) the appeals record does not show the buyer reported the incorrect weight; and (3) the Appeals Officer did not overlook evidence in the appeals record that the buyer reported the incorrect weight to NMFS.

AO concluded that because Appellant did not raise a material issue of fact or law that the Appeals Officer overlooked or misunderstood, his claim that the registered buyer did not report the correct weight of the fish to NMFS does not meet the standard for reconsideration. Therefore, Appellant is not entitled to have his IFQ account adjusted to reflect the weight of halibut landings recorded on his state fish tickets.   To Decision »
96-0068 Halibut/Sablefish IFQ
Issued: 6/8/2000 | Effective: 7/10/2000
Appellant: WARDS COVE PACKING CO.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Regulations

Abstract:  Appellant claimed it was entitled to sablefish QS based on its purchase of the F/V GREAT PACIFIC in 1991, which made legal landings of sablefish during the QS qualifying years of 1988, 1989, and 1990.

AO concluded that Appellant was not entitled to QS based on its purchase of the F/V GREAT PACIFIC because Appellant did not own or lease the vessel at the time the qualifying landings were made.

Further action: Appellant appealed the decision in Wards Cove Packing Corp. v. National Marine Fisheries Service, U.S. District Court for the Western District of Washington, Case No. CV-00-1570L (March 8, 2001). Wards Cove argued that under the definition of "qualified person" in federal regulation 50 C.F.R. 679.40(a)(3), it was entitled to sablefish quota shares because it was a qualified person for halibut shares and had made fixed gear landings of sablefish during the base years but not during the qualifying period.

The District Court upheld the decision, ruling that the regulation was ambiguous and deferring to the agency's interpretation. The District Court's decision was reversed by the Ninth Circuit Court of Appeals, which found that the regulation was unambiguous and that an applicant who qualified for either halibut or sablefish was a qualified person for both species. Wards Cove Packing Corp. v. National Marine Fisheries Service, 307 F.3d 1214 (CA9, 2002). As a result of the 9th Circuit's decision, Wards Cove, and two other applicants who had raised the same argument during their administrative appeals, were awarded additional quota shares.   To Decision »
95-0074 Halibut/Sablefish IFQ
Issued: 5/31/2000 | Effective: 6/30/2000
Appellant: PADON, Bradley V.
Disposition: Affirmed IAD
Abstract Terms:
    - Due Process
    - Eligibility

Abstract:  Appellant claimed that (1) he was entitled to halibut and sablefish QS as a former partner of a dissolved partnership with Mr. Roger Gross, which used Mr. Gross' vessel, the F/V UNIMAK, to land halibut and sablefish between 1985 and 1988; and (2) it would be a violation of "due process" and "statutory construction" if the partnership did not qualify Appellant for QS.

AO concluded that (1) because the partnership did not own or lease the F/V UNIMAK during the QS qualifying period, Appellant was not entitled to QS based on his dissolved partnership with Mr. Gross; (2) it was not a violation of "statutory construction" to conclude Appellant does not qualify for QS because that conclusion was consistent with the regulatory language of the IFQ program; and (3) it lacked the authority to invalidate an IFQ regulation as a violation of "due process".   To Decision »
98-0001R Halibut/Sablefish IFQ
Issued: 5/23/2000 | Effective: 6/22/2000
Appellant: MITTENEN, Thomas W. v. COSSETTE, Leroy G. (Reconsideration)
Disposition: Affirmed OAA
Abstract Terms:
    - Lease
    - Landings

Abstract:  On Reconsideration, the issue was still whether Appellant leased the F/V ESKIMO PRINCESS from Respondent in 1986. AO found that (1) the parties did not characterize their arrangement as a lease when they met face-to-face in April 1986, before the start of the 1986 halibut season; (2) the parties failure to characterize their arrangement as a lease when they met in 1986 indicated a non-lease arrangement between the parties; and (3) the Appeals Officer did not overlook or misunderstand any material matters of fact or law in the Decision.

AO concluded that (1) Appellant's payment for insurance coverage of the F/V ESKIMO PRINCESS outside the claimed lease period in 1986 was not legally relevant to this case; (2) the IFQ regulations and the analysis developed in IFQ decisions govern the existence of a vessel lease under the IFQ program, not maritime law or bareboat charters; and (3) Appellant did not lease the F/V ESKIMO PRINCESS in 1986. AO also overruled its previous vessel lease decisions to the extent that they appeared to rely on maritime law and bareboat charters.   To Decision »
95-0110 Halibut/Sablefish IFQ
Issued: 5/16/2000 | Effective: 6/15/2000
Appellant: CARVALHO, Stephan
Disposition: Affirmed IAD
Abstract Terms:
    - Vessel

Abstract:  Appellant requested reassignment of his halibut QS from vessel category C to vessel category B, because the proportionate assignment of his halibut QS between vessels in categories C and B reduced his ability to commercially fish for halibut. Appellant also claimed that halibut QS for certain areas should not have been assigned to vessel category C because he did not harvest halibut from a category C vessel in those areas.

AO concluded that: (1) Appellant is not entitled to a reassignment of his QS based on commercial feasibility or areas fished during the QS base years because IFQ regulations provide for QS assignment based only on the proportion of halibut landings made during Appellant's "most recent year of participation" (1988); and (2) RAM properly assigned Appellant's halibut QS to vessel categories C and B because Appellant used a vessel from each category to land halibut during his "most recent year of participation" in the halibut fishery.   To Decision »
95-0095 Halibut/Sablefish IFQ
Issued: 4/27/2000 | Effective: 5/29/2000
Appellant: GREGORY, John C.
Disposition: Affirmed IAD
Abstract Terms:
    - Landings
    - Quota Share Amount

Abstract:  Appellant claimed that (1) he was entitled to IFQ credit for halibut for landings made by him in 1979, 1980, and 1991, to compensate for halibut landings he did not make in 1989 and 1990 because of the EXXON VALDEZ oil spill; and (2) he was entitled to additional halibut QS based on halibut landed from, or kept for personal consumption on, F/V CRACK O'DAWN, in 1988, because of his partnership with vessel owner Mr. John Renner.

AO concluded that (1) Appellant may not substitute his earlier halibut landings for those he did not make in 1989 and 1990 due to the EXXON VALDEZ oil spill because IFQ regulations do not provide for a hardship or special circumstances exception to the QS calculation rule; and (2) Appellant was not entitled to additional QS based on halibut landed from, or personally consumed on, F/V CRACK O'DAWN in 1988, despite his partnership with vessel owner Mr. Renner, because there was no evidence that "legal landings" were made from the vessel in 1988.  To Decision »
97-0016 Halibut/Sablefish IFQ
Issued: 3/27/2000 | Effective: 4/26/2000
Appellant: LEWIS, Bruce A.
Disposition: acated IAD in part
Abstract Terms:
    - Successor-in-Interest
    - Corporation Changes
    - Lease

Abstract:  Appellant claimed that he leased two vessels: the F/V CLIPPER ENDEAVOR and the F/V KAELA C. RAM denied Appellant's claim based on untimely and insufficient evidence. On appeal, the AO found that Appellant did not produce documents indicative of vessel lease of the F/V CLIPPER ENDEAVOR and that at best his evidence showed only that Appellant was aboard the vessel at the time of harvest. AO also found that: the president of the owner of the F/V KAELA C, Mr. Scott Bergren of Cal Kaela, Inc., chartered the vessel to Douglas Cold Storage, Inc. between March 15, 1990, and May 8, 1990; the corporation is dissolved; and Appellant was president and sole shareholder of Douglas Cold Storage, Inc. at time of dissolution. As a result of the above findings, AO concluded that Appellant did not lease the F/V CLIPPER ENDEAVOR, but that he should be credited with the QS resulting from F/V KAELA C between March 15, 1990, and May 8, 1990, as the legal successor (former shareholder of a dissolved corporation) to the lease of the vessel by Douglas Cold Storage, Inc. during that period.  To Decision »
98-0001 Halibut/Sablefish IFQ
Issued: 3/22/2000 | Effective: 4/21/2000
Appellant: MITTENEN, Thomas W. v. COSSETTE, Leroy G.
Disposition: Affirmed IAD
Abstract Terms:
    - Landings
    - Lease

Abstract:  Mr. Mittenen claimed that he leased the F/V ESKIMO PRINCESS in 1986 from Mr. LeRoy Cossette, the owner of the vessel. RAM determined that Mr. Mittenen did not have sufficient evidence of a lease, and denied the claim. On appeal, we joined Mr. Cossette as a party because of several documents produced on appeal indicated the existence of a lease. During discovery, Mr. Cossette acknowledged that he had signed fish tickets (May 4 and June 2, 1986) for harvests under the disputed lease that he had not witnessed.

The AO concluded that Mr. Mittenen did not have sufficient evidence of a lease. The AO was influenced primarily by the extent of Mr. Cossette's capital contributions, and Mr. Mittenen's limited financial risk, in the vessel's operations during the relevant period. Mr. Mittenen's only financial risk were his trip expenses, which he shared with the crew. The AO also concluded that Mr. Cossette could not be credited with the harvests of the May 4 and June 2, 1986, halibut landings that he had signed for, but not witnessed. Because the signing was not in compliance with state law, the halibut landings were not legal landings for purposes of QS.   To Decision »
00-0001 Halibut/Sablefish IFQ
Issued: 3/9/2000 | Effective: 4/10/2000
Appellant: SHIPP, Bill R.
Disposition: IAD Vacated
Abstract Terms:

Abstract:    To Decision »
95-0012 Halibut/Sablefish IFQ
Issued: 2/28/2000 | Effective: 3/29/2000
Appellant: VAN SKY, Dennis (Reconsideration)
Disposition: Affirmed OAA, modified relief
Abstract Terms:
    - Due Process
    - Official Record
    - Regulations

Abstract:  RAM requested reconsideration, which OAA granted. On reconsideration, AO concluded: [1] appellant's IFQ account should be increased by 6,598 QS units, not 27,900 units, because RAM clarified the record that 6,598 was the amount of QS units appellant received by initial issuance rather than 27,900 which was the total number of QS units appellant owned as of January 31, 1995; [2] 50 C.F.R. 679.43 gives an appeals officer the authority to order a hearing and call witnesses, which includes RAM staff members; [3] an appeals officer has a duty to develop the facts and assist the parties in developing a complete record, especially where the party is not represented by legal counsel; [4] due process requires that the OAA has the right to obtain all information in RAM's possession that is part of the record of a case or that was relied on by RAM in making its determination on an application; [5] an appeals officer has authority to determine the facts of unwritten policies and procedures that an agency used in making an initial administrative determination; [6] RAM's failure to issue and mail the IFQ permit to appellant after determining that he qualified for an initial issuance of QS and his application was complete violates 50 C.F.R. 676.20(f)(3), the regulation in effect when RAM considered appellant's application, rather than 50 C.F.R. 679.40(c)(3), the regulation in effect at the time of OAA's decision; [7] the waiver policy was not promulgated as a regulation and therefore it was not enforceable across-the-board without consideration of the facts of the individual applicant; [8] 50 C.F.R. 679.4(a)(1)(ii) was not in effect when RAM considered appellant's application;[9] it was an abuse of discretion for RAM to interpret 50 C.F.R. 676.20(d) ("An incomplete application will be returned to the applicant with specific kinds of information identified that are necessary to make it complete") as requiring Mr. Van Sky to execute a waiver of confidential fish ticket data because no other applicant wished to review this data, Mr. Van Sky did not wish to review any other applicant's confidential data and the agency did not need a waiver to show Mr. Van Sky's own data to him; [10] OAA has authority to review RAM's implementation policy decisions as applied to a particular appellants; [11] an alternative basis for relief is that penalizing Mr. Van Sky for failing to execute a waiver violates the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3520 because it was an unauthorized collection of information. Since the parties did not address this issue, AO does not rely on it as a basis for granting relief.   To Decision »
95-0065 Halibut/Sablefish IFQ
Issued: 1/14/2000 | Effective: 2/14/2000
Appellant: SAMUELSON, Stanley
Disposition: IAD Affirmed
Abstract Terms:

Abstract:    To Decision »
96-0077R Groundfish/Crab Moratorium
Issued: 12/28/1999 | Effective: 12/31/1999
Appellant: MURA, Merek (Reconsideratiion)
Disposition: Affirmed IAD
Abstract Terms:
    - Vessel

Abstract:  Appellant applied for a vessel moratorium qualification and permit with a length overall (LOA) of 48 feet, based on the LOA of his original qualifying vessel, the F/V BOBOLINK. Under 50 C.F.R. 679.2, a vessel's "original qualifying LOA" is the "LOA of the original moratorium qualifying vessel on June 24, 1992." If requested by RAM, an applicant is required to produce reliable documentation of a vessel's original qualifying LOA on June 24, 1992, such as a vessel survey, builder's plan, a state or Federal registration certificate, fishing records, etc. See, 50 C.F.R. 679.4(c)(6). RAM rejected Appellant's claim for a vessel moratorium qualification and permit of 48 feet because its records showed the LOA of the F/V BOBOLINK was 42 feet on June 24, 1992. Although RAM requested him to do so, Appellant did not document his claim.

AO found that Appellant's assertion was not "reliable documentation," and that his assertion was not sufficient evidence to overcome the presumption of RAM's records. AO found that the LOA of the BOBOLINK was 42 feet as of June 24, 1992. Therefore, Appellant was not entitled to a vessel moratorium qualification and permit with an LOA of 48 feet.   To Decision »
96-0010 Groundfish/Crab Moratorium
Issued: 12/3/1999 | Effective: 1/3/2000
Appellant: TUTTLE, Sherri L. & WHITMIL, Lori
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Regulations
    - Estoppel

Abstract:  Appellants applied for a vessel moratorium qualification and permit for the F/V ROSE. RAM denied the application because the F/V ROSE did not have moratorium qualification by its own landings or by transfer from another vessel. Appellants argued this was unfair because Ms. Tuttle relied on statements by (unnamed) NMFS officials in 1993, when she was considering sale of her prior vessel (the F/V JUNE ROSE), that as soon as the halibut and sablefish fisheries went under the Individual Fishing Quota Program, the moratorium would no longer apply and she could use the new vessel (F/V ROSE) in a groundfish fishery. Appellants argued it was unfair that the new owner of the F/V JUNE ROSE got the benefit of qualifying landings made by the F/V JUNE ROSE when Ms. Tuttle owned it.

AO found: [1] under the doctrine of government estoppel, a party who reasonably and detrimentally relies on misinformation or wrong advice provided by a government agency and, as a result, fails to meet or comply with government requirements, may, under certain circumstances, preclude or "estop" the government from asserting the party's noncompliance; [2] among the circumstances that must be present for the doctrine of government estoppel to apply is that the government agency must have engaged in affirmative misconduct; [3] Appellant's allegation that a government agency gave misinformation about possible future features of a fishery management program does not constitute an allegation of affirmative government misconduct; [4] NMFS cannot be bound by statements that were allegedly made two years before the moratorium program and regulations were adopted; [5] Appellants' reliance on statements allegedly made by NMFS agents about a future fishery management program does not constitute reasonable reliance for purposes of the doctrine of government estoppel; [6] the argument that it is unfair that a vessel's moratorium qualification of a vessel is presumed to follow the vessel, when the vessel is sold, is beyond this Office's jurisdiction to decide because it is inappropriate for an appeals officer to pass judgment on the validity or wisdom of the agency's own duly promulgated regulations.  To Decision »
99-0007 Groundfish/Crab Moratorium
Issued: 12/3/1999 | Effective: 12/3/1999
Appellant: WOOD, Bob
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals
    - Eligibility
    - Interim Permit
    - Vessel

Abstract:  Appellant applied for a vessel moratorium qualification for the F/V MAHALO on January 12, 1999. No salvage efforts began on the vessel, which sank in 1992. RAM construed Appellant's application as for a moratorium qualification, final permit and interim permit. RAM denied the application based on 50 C.F.R. 679.4(c)(7)(iii) and (c)(6)(iii) because it was filed after December 31, 1998. An IAD on Reconsideration changed RAM's reasoning for not issuing an interim permit to reliance on 50 C.F.R. 679.4(c)(9)(iii), which deals with vessels that sank between 1989 and 1995. The appeal stated that Mr. Wood thought he had applied for a permit for the F/V MAHALO in 1995, that he wanted to transfer the moratorium qualification of the F/V MAHALO to another vessel and that he had been in frequent communication with RAM in the last two months of 1998 to determine how to remedy the problem. Therefore, Appellant argued, the regulations imposing the December 31, 1998 deadline should not be used to deny his application.

AO found: [1] the denial of a final permit was proper based on 50 C.F.R. 679.4(c)(9)(iii) because the F/V MAHALO sank in 1992 and salvage never began on it; [2] AO does not decide whether the Appellant's allegations concerning contact with NMFS, if true, could affect whether 50 C.F.R. 679.4(c)(7)(iii) and (c)(6)(iii) would be a basis to deny his application, which was filed after December 31, 1998; [3] the denial of a certificate of moratorium qualification to the vessel was proper pursuant to 50 C.F.R. 679.4(c)(9) and the definition of moratorium qualification in 50 C.F.R. 679.2 because, when Appellant applied for a moratorium permit, the moratorium qualification of the vessel could not give rise to a moratorium permit for the F/V MAHALO or any other vessel; [4] Appellant should have received an interim permit and non-transferable certificate of moratorium qualification for the F/V MAHALO based on 50 C.F.R. 679.4(c)(10); [5] RAM's error in not issuing an interim permit and qualification was harmless because Appellant makes no allegation he could have used the interim permit and qualification and the record clearly suggests that he only wanted a moratorium qualification certificate for the F/V MAHALO so he could transfer it to another vessel, which he could not have done.  To Decision »
97-0007 Groundfish/Crab Moratorium
Issued: 12/3/1999 | Effective: 1/3/2000
Appellant: TICE, Robert Earl & Peterson, Eric
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Vessel

Abstract:  Appellants and another party each filed applications for a vessel moratorium qualification and permit, each claiming ownership of the F/V DONNA J. The F/V DONNA J is an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied the applications of both Appellants applications because neither Appellant showed that they owned the vessel. On appeal, this Office acquired a U.S. Coast Guard abstract of title, dated December 3, 1999, which shows that Mr. George Larson is the current owner of the F/V DONNA J.

AO found: [1] to obtain a vessel moratorium permit under the regulations of the vessel moratorium program, a person must be the current owner of the vessel. See 50 C.F.R. 679.4(c)(6)(ii) and (ix). [2] Appellants produced several documents, but neither the documents they produced nor the US Coast Guard abstract of title show that either appellant currently owned the vessel. As a result, neither Appellant was entitled to a vessel moratorium permit for the vessel.   To Decision »
99-0002 Groundfish/Crab Moratorium
Issued: 12/2/1999 | Effective: 1/3/2000
Appellant: ALEUTIAN ENTERPRISES, LTD & GOLDEN SABLE FISHERIES, INC.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Vessel

Abstract:  On December 11, 1998, Appellants filed an Application to Transfer Moratorium Qualification from the F/V ALEUTIAN ENTERPRISE to the F/V GOLDEN SABLE and Golden Sable Fisheries, Inc., filed an application for a moratorium permit. The F/V ALEUTIAN ENTERPRISE sank on March 2, 1990 and salvage efforts never began on that vessel. The F/V PACIFIC PEARL had the moratorium qualification of the F/V ALEUTIAN ENTERPRISE by transfer for fourteen days in April 1996. Relying on 50 C.F.R. 679.4(c)(9)(iii), RAM denied both applications. Relying on 50 C.F.R. 679.4(c)(10), RAM issued Golden Sable Fisheries, Inc., an interim permit and qualification.

AO found: [1] 50 C.F.R. 679.4(c)(7)(iii), applied to Appellant's situation, means that the moratorium qualification of the F/V ALEUTIAN ENTERPRISE expired on December 31, 1997 because by that date, the moratorium qualification of the F/V ALEUTIAN ENTERPRISE had not been the basis for issuance of a moratorium permit to a vessel that made a landing of a moratorium species in 1996 or 1997; [2] the listing of the F/V PACIFIC PEARL as a qualified vessel in the summary of vessel qualifications for the License Limitation Program on the NMFS website is insufficient evidence, by itself, to show that the F/V PACIFIC PEARL made a landing of moratorium crab or moratorium groundfish during the fourteen day period when it had a moratorium permit based on the moratorium qualification of the F/V ALEUTIAN ENTERPRISE.  To Decision »
96-0086 Groundfish/Crab Moratorium
Issued: 12/2/1999 | Effective: 1/3/2000
Appellant: JAMIE MARIE, INC
Disposition: Affirmed IAD
Abstract Terms:
    - Regulations
    - Eligibility
    - Estoppel

Abstract:  Appellant applied for a vessel moratorium qualification and permit for the F/V JAMIE MARIE. The F/V JAMIE MARIE did not make a landing of moratorium crab or moratorium groundfish in the qualifying period (January l, 1988 to February 9, 1992) but had landed halibut. Appellant argued that the F/V JAMIE MARIE should be treated as a qualified vessel because Ron Miller, the President of Jamie Marie, Inc., relied on government information [1] to conclude that the F/V JAMIE MARIE would be a qualified vessel under the Moratorium Program, [2] to keep the F/V JAMIE MARIE out of the moratorium fisheries in 1991 and 1992 and [3] to invest substantial sums of money to convert the vessel into a trawler. The government information he relied on was the 1992 "True North" Report by the North Pacific Fisheries Management Council and the first, proposed regulations for the Moratorium program, both of which proposed defining halibut as a moratorium fishery, and discussions with unspecified NMFS employees in 1990.

AO found: [1] halibut is not a moratorium species as defined by 50 C.F.R. 679.2; [2] the F/V JAMIE MARIE is not a qualified vessel because it did not make a landing of a moratorium species between January l, 1988 and February 9, 1992; [3] the True North Report and the first, proposed regulations for the Moratorium Program, found at 59 Fed. Reg. 28,827 - 28,838 (1994), did propose defining halibut as a moratorium fishery; [4] the Secretary of Commerce rejected these proposed regulations as violating the Magnuson Act and other federal laws; [5] the government documents and the discussions Mr. Miller states that he had with government employees occurred well before the regulations of the Moratorium Program came into effect on September 11, 1995; [6] court have only permitted government estoppel upon a showing of affirmative misconduct by the government; [7] discussions with government employees or government publications concerning the possible future requirements of a government program might be do not constitute affirmative misconduct; [8] RAM properly applied the regulations defining original qualifying vessels and moratorium species to Jamie Marie's application.  To Decision »
96-0007 Groundfish/Crab Moratorium
Issued: 12/2/1999 | Effective: 1/3/2000
Appellant: SAMISH MARITIME, INC
Disposition: Affirmed IAD
Abstract Terms:
    - Regulations
    - Untimely Applications and Appeals
    - Vessel
    - Eligibility
    - Estoppel

Abstract:  Appellant applied for a vessel moratorium qualification and permit for the F/V REBEL. Appellant recognized that the F/V REBEL had not landed a moratorium crab or moratorium groundfish in the qualifying period (January l, 1988 to February 9, 1992) but stated that the F/V REBEL should be treated as if it had made such a landing because Ron Warren, the President of Samish Maritime, Inc., had received inadequate notice of the Moratorium Program, had been misadvised by a government employee about what the features of a moratorium program would be, would face disastrous financial consequences if excluded from the moratorium fisheries and because this vessel was under construction during the qualifying period. Even though the appeal was received after the appeal deadline and the appellate record did not contain a copy of the postmarked envelope, the record supported the conclusion that the appeal had been mailed, and therefore postmarked, by the deadline and was therefore timely.

AO found: [1] Appellant was not entitled to individualized notice that the North Pacific Fisheries Management Council was developing a program to limit participation in the moratorium fisheries; [2] AO noted there were factual problems with Appellant's allegation of misadvice including [A] Mr. Warren was not sure what government agency he talked to and [B] it was not clear whether Mr. Warren informed the government employee that the F/V REBEL was a new participant in the moratorium fisheries; [3] an allegation that a government employee gave misinformation about possible future features of a government program does not constitute serious affirmative misconduct, [4] courts have held that serious affirmative misconduct is necessary to estop or prevent the government from applying duly-promulgated regulations in a specific situation; [5] the fact, standing alone, that application of a regulation will have an adverse financial effect on a person or entity does not warrant stopping the government from applying a regulation to a person or entity; [6] the issuance to Appellant of a interim moratorium permit and qualification meant that Appellant was not excluded from participation in the moratorium fisheries; [7] it is not the role of a hearing officer to rule on the wisdom or legality of duly promulgated regulations, [8] even assuming the F/V REBEL was under construction during the qualifying period, the vessel did not meet the requirements in duly promulgated federal regulations for issuance of a moratorium qualification and permit because it did not have moratorium qualification by its own landings or by transfer of moratorium qualification from another vessel.

Further action: Appellant timely requested reconsideration. An Order for Stay was granted on December 10, 1999 while the request for reconsideration was considered. An Order Denying the Request for Reconsideration was entered, December 16, 2000, because Appellant's request did not show any law or arguments the AO had overlooked or misunderstood and a new effective date for the original decision of January 17, 2000 was established. The Order Denying the Request for Reconsideration did note that the denial to appellant of a moratorium permit did not affect whether this vessel would qualify for a license limitation permit.   To Decision »
96-0008 Groundfish/Crab Moratorium
Issued: 12/2/1999 | Effective: 1/3/2000
Appellant: SAMISH MARITIME, INC.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Regulations
    - Untimely Applications and Appeals
    - Vessel
    - Estoppel

Abstract:  Appellant applied for a vessel moratorium qualification and permit for the F/V RENEGADE. Appellant recognized that the F/V RENEGADE had not landed a moratorium crab or moratorium groundfish in the qualifying period (January l, 1988 to February 9, 1992) but stated that the F/V RENEGADE should be treated as if it had made such a landing because Ron Warren, the President of Samish Maritime, Inc., had received inadequate notice of the Moratorium Program, had been misadvised by a government employee about what the features of a moratorium program would be, would face disastrous financial consequences if excluded from the moratorium fisheries and because this vessel was under construction during the qualifying period. An appeal will be treated as timely filed if postmarked or received by the appeal deadline. Even though the appeal was received after the appeal deadline and the appellate record did not contain a copy of the postmarked envelope, the record supported the conclusion that the appeal had been mailed, and therefore postmarked, by the deadline and was therefore timely.

AO found: [1] Appellant was not entitled to individualized notice that the North Pacific Fisheries Management Council was developing a program to limit participation in the moratorium fisheries; [2] AO noted there were factual problems with Appellant's allegation of misadvice including [A] Mr. Warren was not sure what government agency he talked to and [B] it was not clear whether Mr. Warren informed the government employee that the F/V RENEGADE was a new participant in the moratorium fisheries; [3] an allegation that a government employee gave misinformation about possible future features of a government program does not constitute serious affirmative misconduct, [4] courts have held that serious affirmative misconduct is necessary to estop or prevent the government from applying duly-promulgated regulations in a specific situation; [5] the fact, standing alone, that application of a regulation will have an adverse financial effect on a person or entity does not warrant stopping the government from applying a regulation to a person or entity; [6] the issuance to Appellant of a interim moratorium permit and qualification meant that Appellant was not excluded from participation in the moratorium fishery; [7] it is not the role of a hearing officer to rule on the wisdom or legality of duly promulgated regulations, [8] even assuming the F/V RENEGADE was under construction during the qualifying period, the vessel did not meet the requirements in duly promulgated federal regulations for issuance of a moratorium qualification and permit because it did not have moratorium qualification by its own landings or by transfer of moratorium qualification from another vessel.

Further action: Appellant timely requested reconsideration. An Order for Stay was granted on December 10, 1999 while the request for reconsideration was considered. An Order Denying the Request for Reconsideration was entered, December 16, 2000, because request did not show any law or arguments the AO had overlooked or misunderstood and a new effective date for the original decision of January 17, 2000 was established. The Order Denying the Request for Reconsideration did note that the denial to appellant of a moratorium permit did not affect whether this vessel would qualify for a license limitation permit.   To Decision »
99-0008 Groundfish/Crab Moratorium
Issued: 12/1/1999 | Effective: 1/3/2000
Appellant: MEIER, Steven K.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Untimely Applications and Appeals

Abstract:  Appellant applied for a vessel moratorium qualification and permit for the F/V AQUILA under the Vessel Moratorium Program on Groundfish and Crab on April 24, 1999. The Official Record indicated that the F/V AQUILA made landings of moratorium species in the qualifying period, which was January l, 1988 to February 9, 1992. Relying on 50 C.F.R. 679.4(c)(6)(iii) and (c)(7)(iii), RAM denied Appellant a final moratorium permit. Relying on 50 C.F.R. 679.4(c)(10), RAM issued him an interim permit and qualification.

AO found: [1] 50 C.F.R. 679.4(c)(7)(iii), applied to Appellant's application, means that the moratorium qualification of the F/V AQUILA expired on December 31, 1998 because no one had applied on or before that date for a moratorium permit based on the moratorium qualification of the F/V AQUILA; [2] 50 C.F.R. 679.4(c)(6)(iii) required that RAM deny Appellant's application because he did not file it on or before December 31, 1998.  To Decision »
99-0003 Groundfish/Crab Moratorium
Issued: 12/1/1999 | Effective: 1/3/2000
Appellant: Al L. ANDERSON ENTERPRISES
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Interim Permit
    - Regulations
    - Untimely Applications and Appeals

Abstract:  Appellant applied for a vessel moratorium qualification and permit for the F/V AQUILA under the Vessel Moratorium Program on Groundfish and Crab on January 12, 1999. Relying on 50 C.F.R. 679.4(c)(6)(iii) and (c)(7)(iii), RAM denied Appellant a final moratorium permit. Relying on 50 C.F.R. 679.4(c)(10), RAM issued him an interim permit and qualification.

AO found: [1] assuming that the F/V ALYSA JUNE had moratorium qualification by its own landings, 50 C.F.R. 679.4(c)(7)(iii), applied to Appellant's application, means that the moratorium qualification of the F/V ALYSA JUNE expired on December 31, 1998 because no one had applied on or before that date for a moratorium permit based on the moratorium qualification of the F/V ALYSA JUNE; [2] 50 C.F.R. 679.4(c)(6)(iii) required that RAM deny Appellant's application because it was filed after December 31, 1998; [3] even though these two regulations did not become effective until January 19, 1999, application of these regulations to Appellant's application this did not constitute retroactive rulemaking because [A] the regulations in effect through December 31, 1998 provided that the entire Moratorium Program expired and therefore Appellant had a de facto deadline of December 31, 1998 under the older regulations, [B] the infringement on Appellant's substantive rights was limited because he received an interim permit and qualification and was able to participate in the moratorium fisheries through December 31, 1999; [4] RAM properly used the regulations that were in effect when it processed Appellant's application.   To Decision »
96-0055 Groundfish/Crab Moratorium
Issued: 12/1/1999 | Effective: 1/3/2000
Appellant: PETRABORG, John
Disposition: IAD Affirmed
Abstract Terms:

Abstract:    To Decision »
96-0037 Groundfish/Crab Moratorium
Issued: 12/1/1999 | Effective: 1/3/2000
Appellant: BASARGIN, Julian (Estate)
Disposition: IAD Affirmed
Abstract Terms:

Abstract:    To Decision »
96-0032 Groundfish/Crab Moratorium
Issued: 12/1/1999 | Effective: 12/31/1999
Appellant: WEYHMILLER, John C.
Disposition: IAD Vacated on Reconsideration
Abstract Terms:
    - Vessel

Abstract:  Appellant applied for a vessel moratorium qualification and permit with a length overall (LOA) of 46 feet, claiming that was the LOA of his original qualifying vessel, the F/V MARY CARL. RAM rejected Appellant's claim for a vessel moratorium qualification and permit of 46 feet because its records showed the LOA of the F/V PAT was 39 feet on June 24, 1992. On appeal, Appellant produced a U.S. Coast Guard Certificate of Documentation, dated May 22, 1987, which shows the registered length of the F/V MARY CARL at 40.7 feet. Appellant also produced a letter from the harbor master of Craig, Alaska, dated February 21, 1997, which states that the F/V MARY CARL has been moored in the Craig harbor the last five years, and that Appellant pays moorage fees based on the "vessel's length of 46 feet."

AO found: [1] Under 50 C.F.R. 679.2, a vessel's "original qualifying LOA" is the "LOA of the original moratorium qualifying vessel on June 24, 1992." If requested by RAM, an applicant is required to produce reliable documentation of a vessel's original qualifying LOA on June 24, 1992, such as a vessel survey, builder's plan, a state or Federal registration certificate, fishing records. See 50 C.F.R. 679.4(c)(6). [2] Appellant's evidence was "reliable documentation" of Appellant's claim and was sufficient evidence to overcome the presumption of RAM's records. Consequently, Appellant is entitled to a vessel moratorium qualification and permit with an LOA of 46 feet.  To Decision »
96-0031 Groundfish/Crab Moratorium
Issued: 12/1/1999 | Effective: 1/3/2000
Appellant: JAMISON, Vern E.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Regulations
    - Vessel

Abstract:  Appellant simultaneously applied for a vessel moratorium qualification and permit for the F/V LISA LYNN and applied to transfer the moratorium qualification of the F/V LISA LYNN to the F/V GLORIA ANN. Appellant stated he owned the F/V LISA LYNN throughout the qualifying period (January l, 1988 to February 9, 1992) and sold it in 1994. Appellant owned the F/V GLORIA ANN at the time of his applications. Appellant did not allege or introduce any evidence that he retained the moratorium rights of the F/V LISA LYNN when he sold that vessel.

AO found: [1] 50 C.F.R. 679.4(c)(6) means that the owner of a vessel at the time of application is entitled to the moratorium qualification and permit that results from the landing history of the vessel unless, pursuant to a contract or agreement, the parties to the sale of the vessel severed the moratorium rights of the vessel from the vessel and the prior owner retained the moratorium rights of the vessel; [2] the mere absence of a competing application for the moratorium rights of a vessel from the vessel's current owner is not sufficient, by itself, to warrant a conclusion that the vessel's current owner does not own the moratorium rights of the vessel along with the vessel; [3] Appellant did not show that he owned the F/V LISA LYNN or the moratorium rights of the F/V LISA LYNN at the time of application; [4] the regulatory history of the Moratorium Program does not reveal why the North Pacific Fisheries Management Council structured the program so that the moratorium rights of the vessel are presumed to stay with the vessel; [5] an appeals officer must assume the legality of duly promulgated regulations.   To Decision »
97-0002 Groundfish/Crab Moratorium
Issued: 11/30/1999 | Effective: 12/30/1999
Appellant: BETSY M COMPANY
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant applied for a vessel moratorium qualification and permit, based on the F/V BETSY as an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application to fish moratorium groundfish and moratorium crab because its records did not show that the vessel landed moratorium groundfish or moratorium crab during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i) and 50 C.F.R. 679.2. Appellant produced (1) a seafood producer list of the landings made by the F/V BETSY on state fish tickets between November 1994 and January 1995; and (2) a letter from Mr. R.W. Cranston, stating that he purchased the F/V BETSY in 1992, and that he made landings of halibut, black cod, and rock fish in 1992, 1993, and 1994.

AO found that neither the seafood producer list, nor Mr. Cranston's letter, showed that the F/V BETSY made moratorium crab or moratorium groundfish landings during the moratorium qualifying period. As a consequence, the F/V BETSY was not eligible for a moratorium qualification and permit.  To Decision »
97-0013 Groundfish/Crab Moratorium
Issued: 11/30/1999 | Effective: 12/30/1999
Appellant: K&S CONSTRUCTION
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant applied for a vessel moratorium qualification and permit, based on the F/V THOMAS HENRY as an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application to fish moratorium groundfish and moratorium crab because its records did not show that the vessel landed moratorium groundfish or moratorium crab during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i) and 50 C.F.R. 679.2. Appellant produced the testimony of Mr. Don Stiles before the North Pacific Fishery Management Council, regarding his use of the F/V THOMAS HENRY in 1994, 1995, and 1996.

AO found that the record shows that the F/V THOMAS HENRY did not land moratorium crab or groundfish within the moratorium qualifying period. As a consequence, the vessel is not eligible for a moratorium qualification and permit.   To Decision »
96-0072 Groundfish/Crab Moratorium
Issued: 11/30/1999 | Effective: 12/30/1999
Appellant: REGAL BALLYHOO, INC & KARM ENTERPRISES, INC
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellants applied for a vessel moratorium qualification and permit, claiming that the F/V BALLYHOO was an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellants application to fish moratorium groundfish and moratorium crab because its records did not show that the vessel landed moratorium groundfish or moratorium crab during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i) and 50 C.F.R. 679.2. Appellants produced state fish tickets, showing landings made from the F/V BALLYHOO between February 24, 1992, and November 1994.

AO found that the landings on the state fish tickets were outside the moratorium qualifying period and that the evidence in the record did not show that the F/V BALLYHOO did not make qualifying moratorium landings. As a consequence, the vessel is not eligible for a moratorium qualification and permit.  To Decision »
96-0016 Groundfish/Crab Moratorium
Issued: 11/30/1999 | Effective: 12/30/1999
Appellant: CESSNUN, John
Disposition: Affirmed IAD
Abstract Terms:
    - Vessel

Abstract:  Appellant applied for a vessel moratorium qualification and permit with a length overall (LOA) of 39 feet, based on the LOA of his original qualifying vessel, the F/V DAYBREAK. Under 50 C.F.R. 679.2, a vessel's "original qualifying LOA" is the "LOA of the original moratorium qualifying vessel on June 24, 1992." If requested by RAM, an applicant is required to produce reliable documentation of a vessel's original qualifying LOA on June 24, 1992, such as a vessel survey, builder's plan, a state or Federal registration certificate, fishing records, etc. See 50 C.F.R. 679.4(c)(6). RAM rejected Appellant's claim for a vessel moratorium qualification and permit of 39 feet because its records showed the LOA of the F/V DAYBREAK was 36 feet on June 24, 1992. Although RAM requested him to do so, Appellant did not document his claim.

AO concluded that Appellant's assertion was not "reliable documentation" of his claim, and that it was not sufficient to overcome the presumption of RAM's records. Consequently, AO found that the LOA of the F/V DAYBREAK was 36 feet as of June 24, 1992. AO concluded that Appellant was not entitled to a vessel moratorium qualification and permit with an LOA of 39 feet.   To Decision »
96-0014 Groundfish/Crab Moratorium
Issued: 11/30/1999 | Effective: 12/30/1999
Appellant: SMITH, Volney
Disposition: IAD VACATED on Reconsideration
Abstract Terms:
    - Vessel

Abstract:  Appellant applied for a vessel moratorium qualification and permit with a length overall (LOA) of 45 feet, claiming that was the LOA of his original qualifying vessel, the F/V PAT. RAM rejected Appellant's claim for a vessel moratorium qualification and permit of 45 feet because its records showed the LOA of the F/V PAT was 40 feet on June 24, 1992. On appeal, Appellant produced a letter from NMFS, stating that one of its agents had measured the vessel at an LOA of 45 1/2 feet, and that the agent had found no physical signs of the vessel having been lengthened.

AO found: [1] Under 50 C.F.R. 679.2, a vessel's "original qualifying LOA" is the "LOA of the original moratorium qualifying vessel on June 24, 1992." If requested by RAM, an applicant is required to produce reliable documentation of a vessel's original qualifying LOA on June 24, 1992, such as a vessel survey, builder's plan, a state or Federal registration certificate, fishing records. See 50 C.F.R. 679.4(c)(6). [2] The letter from NMFS was "reliable documentation" of Appellant's claim. [3] The letter was sufficient evidence to overcome the presumption of RAM's records. Therefore, Appellant is entitled to a vessel moratorium qualification and permit with an LOA of 46 feet.  To Decision »
98-0005 Groundfish/Crab Moratorium
Issued: 11/30/1999 | Effective: 12/30/1999
Appellant: MONROE, James D.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant applied for a vessel moratorium qualification and permit, claiming that the F/V CAPE LOOKOUT is an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application because its records did not show that the vessel landed moratorium groundfish or moratorium crab during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i) and 50 C.F.R. 679.2. Appellant produced (1) two state fish tickets for halibut landed from the CAPE LOOKOUT in 1990 and 1992; (2) six state fish tickets for crab landed from the vessel between 1988 and 1992; and (3) a letter dated July 13, 1998, from Charles Jensen, stating that he had witnessed Appellant deliver "various fishery products," which included halibut, true cod, crab, and Pacific cod, to East Point Seafoods in Kodiak, Alaska. The fish tickets for the crab landings showed that the harvests were made in the Central Gulf of Alaska, and not the Bering Sea/Aleutians Islands.

AO found that the evidence in the record did not show that the F/V CAPE LOOKOUT made crab landings in the Bering Sea/Aleutian Islands or made groundfish landings during the moratorium qualifying period. AO noted that while Appellant's fish tickets showed that halibut and crab landings were made from the F/V CAPE LOOKOUT during the moratorium qualifying period, halibut is not moratorium groundfish, and crab harvested outside the BS/AI is not moratorium crab. AO noted that Mr. Jensen's statement that he witnessed groundfish delivered to East Point Seafoods is not supported by state fish tickets or the information in RAM's records, and that the letter, by itself, is not credible or reliable evidence of the landings (or the legal landings) of the fish. As a consequence, the F/V CAPE LOOKOUT was not eligible for a moratorium qualification and permit.   To Decision »
96-0006 Groundfish/Crab Moratorium
Issued: 11/30/1999 | Effective: 12/30/1999
Appellant: HANSEN, Michael R.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant applied for a vessel moratorium qualification and permit, based on the F/V SEA QUAIL as an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application because its records did not show that the vessel made moratorium crab or moratorium groundfish landings during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i). On appeal, Appellant claimed that he could not fish the F/V SEA QUAIL during the qualifying period because of inclement weather, and that he should be granted an exception because of hardship or special circumstances.

AO found that the vessel did not make landings of moratorium crab or moratorium groundfish during the moratorium qualifying period of January 1, 1988, through February 9, 1992. In light of that finding, AO concluded that a vessel moratorium qualification and permit cannot be issued for the F/V SEA QUAIL because the vessel moratorium regulations do not provide for an exemption based on hardship or special circumstances.  To Decision »
96-0023 Groundfish/Crab Moratorium
Issued: 11/30/1999 | Effective: 12/30/1999
Appellant: DENSMORE, David
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant applied for a vessel moratorium qualification and permit, claiming that the F/V MARY M was an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application because its records did not show that the vessel landed moratorium groundfish or moratorium crab during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i) and 50 C.F.R. 679.2. Appellant produced (1) state fish tickets for Tanner crab landings made from harvests aboard the F/V MARY M in the Kodiak management fishing areas; and (2) a state fish ticket for a Pacific Gray Cod landing made from the vessel on February 10, 1992.

AO found that neither Appellant's evidence, nor RAM's records, show that the F/V MARY M made moratorium crab landings in the Bering Sea/Aleutian Islands or moratorium groundfish landings during the qualifying period. As a consequence, the vessel is not eligible for a moratorium qualification and permit.  To Decision »
96-0069 Groundfish/Crab Moratorium
Issued: 11/29/1999 | Effective: 12/29/1999
Appellant: SHADLE, Matt
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements

Abstract:  Appellant applied for a vessel moratorium qualification and permit, based on the F/V KRISTINE ALASKA, as an "original qualifying vessel" under the Vessel Moratorium Program. RAM did not endorse the vessel's permit to fish moratorium crab with pot gear.

AO found that Appellant did not produce state fish tickets (or any other evidence) to show that the vessel made crab landings from harvests in the Bering Sea/Aleutian Islands between January 1, 1988, and December 11, 1994, or that the vessel made moratorium groundfish landings with pot gear between January 1, 1988, and February 9, 1992, as required under 50 C.F.R. 679.4(c)(5)(i) and 50 C.F.R. 679.2 for a crab endorsement with pot gear. Therefore, the moratorium permit of the F/V KRISTINE ALASKA should not have an endorsement to fish moratorium crab with pot gear.  To Decision »
96-0070 Groundfish/Crab Moratorium
Issued: 11/29/1999 | Effective: 12/29/1999
Appellant: SHADLE, Matt
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements

Abstract:  Appellant applied for a vessel moratorium qualification and permit, claiming that the F/V RISKY BUSINESS was an "original qualifying vessel" under the Vessel Moratorium Program. RAM did not endorse the vessel's permit to fish moratorium crab with pot gear.

AO found that Appellant did not produce state fish tickets (or any other evidence) to show that the vessel made crab landings in the Bering Sea/Aleutian Islands between January 1, 1988, and December 11, 1994, or that the vessel made moratorium groundfish landings with pot gear between January 1, 1988, and February 9, 1992, as required under 50 C.F.R. 679.4(c)(5)(i) and 50 C.F.R. 679.2 for a crab endorsement with pot gear. Therefore, the moratorium permit of the F/V RISKY BUSINESS should not have an endorsement to fish moratorium crab with pot gear.   To Decision »
96-0039 Groundfish/Crab Moratorium
Issued: 11/29/1999 | Effective: 12/29/1999
Appellant: ANCHOR TRADE & DEVELOPMENT
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant applied for a vessel moratorium qualification and permit, claiming that the the F/V GOLDEN SABLE was an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application because its records did not show that the vessel made moratorium crab or moratorium groundfish landings during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i). On appeal, Appellant claimed that he should be granted an exception (from the requirement of qualifying landings) because Appellant relied upon various proposals of the North Pacific Management Fishery Council which were not adopted as regulations under the vessel moratorium program, because the owner of the vessel (Magne Nes) pioneered crab and groundfish fishing off Alaska, and because of financial hardship.

AO found that the vessel did not make landings of moratorium crab or moratorium groundfish during the moratorium qualifying period of January 1, 1988, through February 9, 1992. In light of that finding, AO concluded that a vessel moratorium qualification and permit cannot be issued for the F/V GOLDEN SABLE because the vessel moratorium regulations do not provide for an exemption based on hardship or special circumstances.  To Decision »
96-0053 Groundfish/Crab Moratorium
Issued: 11/29/1999 | Effective: 12/29/1999
Appellant: SEATON, Paul K.
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements

Abstract:  Appellant applied for a vessel moratorium qualification and permit, based on the F/V TOTEM, as an "original qualifying vessel" under the Vessel Moratorium Program. RAM endorsed the vessel's permit to fish moratorium groundfish with pot, trawl, and hook gear, but it did not endorse the vessel's permit to fish moratorium crab with pot gear.

AO found that Appellant's evidence (which included state fish tickets) did not show that the vessel's crab landings were harvested in the Bering Sea/Aleutian Islands (BS/AI) between January 1, 1988, and December 11, 1994, or that the vessel made moratorium groundfish landings with pot gear between January 1, 1988, and February 9, 1992, as required under 50 C.F.R. 679.4(c)(5)(i) and 50 C.F.R. 679.2 for a crab endorsement with pot gear. As a result, the moratorium permit of the F/V TOTEM should not have an endorsement to fish moratorium crab with pot gear.   To Decision »
97-0004 Groundfish/Crab Moratorium
Issued: 11/29/1999 | Effective: 12/29/1999
Appellant: NELSON, John, Jr.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant applied for a vessel moratorium qualification and permit, based on the F/V OUT FOX as an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application because its records did not show that the vessel made moratorium crab or moratorium groundfish landings during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i). Appellant submitted a settlement sheet from Ursin Seafoods, Inc., Kodiak, for crab purchases made from the F/V OUT FOX between January 20, 1986, and January 30, 1988. No state fish tickets were submitted by the Appellant.

AO found that the settlement sheet was not sufficient evidence that crab or groundfish landings were made from the F/V OUT FOX during the moratorium qualifying period. AO concluded that even if the settlement sheet was sufficient evidence of landings, the landings could not be considered "legal" landings, absent evidence of state fish tickets. The claimed landings were also outside the qualifying period. Therefore, Appellant was not entitled to a moratorium qualification and permit for the F/V OUT FOX.   To Decision »
96-0021 Groundfish/Crab Moratorium
Issued: 11/29/1999 | Effective: 12/27/1999
Appellant: STEELE, Jeff
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements

Abstract:  The Official Record for the Moratorium Program indicated that Appellant was entitled to a moratorium qualification and permit with two gear endorsements: crab with pot gear and groundfish with pot gear. Appellant claimed that he was also entitled to a groundfish/hook gear endorsement but did not have access to the vessel's landing history because of a financial dispute with the prior owner.

AO found: [1] 50 C.F.R. 679.4(c)(5) (i) provides that to receive an endorsement to harvest groundfish with hook gear, a vessel must have made either [A] a landing of moratorium groundfish with any gear in period 1 (January l, 1998 to February 9, 1992) or [B] a landing of moratorium crab in period 1 and a landing of moratorium groundfish with hook gear in period 2 (February 10, 1992 to December 11, 1994); [2] the theoretical possibility that the Official Record for the Moratorium Program might have omitted a landing, without any specific evidence that a landing was omitted, is not sufficient by itself to justify a hearing or further efforts by the Office of Administrative Appeals to obtain additional information on whether this vessel had the landings necessary for a groundfish/hook gear endorsement when the Moratorium Program is about to expire and the Applicant had received an interim permit and qualification with a groundfish/hook gear endorsement; [3] Appellant did not show his vessel made the landings necessary for an endorsement to harvest groundfish with hook gear.   To Decision »
96-0057 Groundfish/Crab Moratorium
Issued: 11/29/1999 | Effective: 12/29/1999
Appellant: DONAHUE, Joseph K.
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements

Abstract:  Appellant applied for a vessel moratorium qualification and permit, claiming that the F/V STORM FRONT was an "original qualifying vessel" under the Vessel Moratorium Program. RAM endorsed the vessel's permit to fish moratorium groundfish with pot, trawl, and hook gear, but it did not endorse the vessel's permit to fish moratorium crab with pot gear.

AO found that Appellant's evidence (ADF&G catch records of the F/V STORM FRONT) did not show that the vessel made crab landings in the Bering Sea/Aleutian Islands between January 1, 1988, and December 11, 1994, or that the vessel made moratorium groundfish landings with pot gear between January 1, 1988, and February 9, 1992, as required under 50 C.F.R. 679.4(c)(5)(i) and 50 C.F.R. 679.2 for a crab endorsement with pot gear. The F/V STORM FRONT is not entitled to an endorsement to fish moratorium crab with pot gear on its moratorium permit.   To Decision »
96-0065 Groundfish/Crab Moratorium
Issued: 11/26/1999 | Effective: 12/27/1999
Appellant: HATTEN, Michael, Sr.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Vessel

Abstract:  Appellant applied for a vessel moratorium qualification and permit for the F/V THUNDERBIRD. Appellant submitted evidence that the F/V THUNDERBIRD was under construction in the qualifying period, which was January l, 1988 to February 9, 1992, and that the F/V THUNDERBIRD made landings of moratorium groundfish in 1993 and 1994. Appellant also noted that he had last fished a prior boat, the F/V INLET VENTURE, in 1991. RAM denied the application.

AO found: [1] 50 C.F.R. 679.4(c)(7) provides that to obtain a moratorium permit, a vessel must have moratorium qualification by its own landings or by transfer of moratorium qualification from another vessel; [2] for a vessel to have moratorium qualification by its own landings, the vessel must have made a landing of moratorium crab or groundfish during the qualifying period, January l, 1988 to February 9, 1992; [3] the regulations provide no exception for a vessel under construction during the qualifying period; [4] Appellant did not show that the F/V THUNDERBIRD was a qualified vessel either by its own landings or by transfer of a moratorium qualification from another vessel.  To Decision »
96-0049 Groundfish/Crab Moratorium
Issued: 11/24/1999 | Effective: 12/24/1999
Appellant: HIGH SPIRIT, Inc.
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements

Abstract:  High Spirit, Inc., and Cloverleaf, Inc., applied to transfer the moratorium qualification of the F/V CLOVERLEAF to the F/V HIGH SPIRIT. The landings history of the F/V CLOVERLEAF entitled it to a moratorium qualification and permit with a crab/pot gear endorsement and a groundfish/pot gear endorsement. High Spirit, Inc., applied for a moratorium qualification and permit based on the transfer of the moratorium qualification of the F/V CLOVERLEAF. High Spirit, Inc., wished to add to the moratorium qualification and permit based on the transfer of the moratorium qualification of the F/V CLOVERLEAF a groundfish/hook gear endorsement based on the F/V HIGH SPIRIT's landing of a groundfish in period 2 (February 10, 1992 to December 11, 1994). After the Appeal was filed, RAM approved the transfer of the moratorium qualification of the F/V CLOVERLEAF to the F/V HIGH SPIRIT. That eliminated from dispute whether High Spirit, Inc., was entitled to a moratorium qualification and permit with a crab/pot gear endorsement and a groundfish/pot gear endorsement, because the F/V CLOVERLEAF was entitled to those gear endorsements. The issue that remained was whether the F/V HIGH SPIRIT was entitled to add a groundfish/hook gear endorsement.

AO found: [1] the F/V HIGH SPIRIT did not have a landing of a moratorium species in the qualifying period or period 1, which were both January l, 1988 to February 9, 1992; [2] pursuant to agreement, Cloverleaf, Inc., transferred to High Spirit, Inc., all of the moratorium rights of the F/V CLOVERLEAF; [3] since the F/V CLOVERLEAF was not entitled to a groundfish/hook gear endorsement, the F/V HIGH SPIRIT was not entitled to that endorsement; [4] High Spirit, Inc., does not qualify for "crossover privileges" into the groundfish/hook gear fishery as that concept is discussed in the regulatory history of the Moratorium Program and is embodied in 50 C.F.R. 679.4(c)(5) because the F/V HIGH SPIRIT did not make any landings between January l, 1988 and February 9, 1992; [5] the regulations do not permit an applicant to receive a gear endorsement based on a combination of the landings history of two vessels.   To Decision »
96-0071 Groundfish/Crab Moratorium
Issued: 11/19/1999 | Effective: 12/20/1999
Appellant: NEWMAN, Robert E. (Estate)
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements
    - Vessel

Abstract:  Appellant applied for a vessel moratorium qualification and permit, based on the F/V MORZHOVOI, as an "original qualifying vessel" under the Vessel Moratorium Program. Appellant claimed that the length overall (LOA) of the vessel was 100 feet as of June 24, 1992, and that the vessel's moratorium permit should be endorsed to fish moratorium groundfish with hook gear. RAM denied both claims. RAM's records showed the vessel's LOA at 86 feet. Appellant produced a marine survey for the F/V MORZHOVOI, dated November 10, 1989, which shows an LOA of 90 feet; a marine survey for the vessel, dated April 22, 1996, which shows an LOA of 100 feet; pictures to show that the F/V MORZHOVOI's LOA was increased to 100 feet in 1994; a copy of a state fish ticket for halibut landings in 1991; a copy of a state fish ticket for Pacific cod landings in 1991. Under the regulations of the Vessel Moratorium Program, a vessel's "original qualifying LOA" is the LOA of the original moratorium qualifying vessel on June 24, 1992. See 50 C.F.R. 679.2. A marine survey is considered "reliable documentation" of a vessel's LOA. See 50 C.F.R. 679.4(c)(6).

AO found: [1] Appellant's evidence showed the vessel's LOA was 90 feet on June 24, 1992, (which was four feet less than RAM's records, but not 100 feet, as claimed by Appellant). [2] Appellant's fish tickets did not show that the F/V MORZHOVOI landed moratorium groundfish because moratorium groundfish does not include Pacific halibut [See 50 C.F.R. 679.2] because the claimed Pacific cod landing was not recorded on the original fish ticket for the landing. The 1991 landing was also gear endorsement periods: period 1 (January l, 1988 through February 9, 1992) and period 2 (February 10, 1992 through December 11, 1994). Therefore, the F/V MORZHOVOI is entitled to a moratorium qualification and permit with an LOA of 90 feet; and that the vessel is not eligible for an endorsement for moratorium groundfish with hook gear.   To Decision »
96-0054 Groundfish/Crab Moratorium
Issued: 11/19/1999 | Effective: 12/20/1999
Appellant: ELIASON, George
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Interim Permit
    - Regulations
    - Vessel

Abstract:  Appellant applied for a vessel moratorium qualification and permit for the F/V TAMMY LIN, the vessel that he owned when he applied. Appellant stated that he owned another vessel, the F/V ANNA J when it made qualifying landings during the qualifying period (January l, 1988 to February 9, 1992) and that he sold the F/V ANNA J in December 1994. Appellant did not allege or introduce any evidence that he retained the moratorium rights of the F/V ANNA J when he sold that vessel. Appellant alleged that the F/V TAMMY LIN made qualifying landings and introduced evidence of landings of groundfish in Oregon. Appellant further argued it is unfair that the moratorium qualification and permit based on the landings of the F/V ANNA J will go to the new owner of the F/V ANNA J since Appellant's actions while he owned the F/V ANNA J created the vessel's moratorium rights. RAM denied the Appellant a final moratorium permit and transferable certificate of moratorium qualification for the F/V TAMMY LIN but granted the Appellant an interim moratorium permit and non-transferable certificate of moratorium qualification for that vessel.

AO found: [1] since 50 C.F.R. 679.2 defines moratorium groundfish as groundfish, except sablefish caught with fixed gear, harvested in the Gulf of Alaska or the Bering Sea/Aleutian Islands area, a landing of groundfish in Oregon is not a landing of moratorium groundfish; [2] 50 C.F.R. 679.4(c)(6) means that the owner of a vessel at the time of application is entitled to the moratorium qualification and permit that results from the landing history of the vessel unless, pursuant to a contract or agreement, the parties to the sale of the vessel severed the moratorium rights of the vessel from the vessel and the prior owner retained the moratorium rights of the vessel; [3] Appellant did not own the F/V ANNA J or the moratorium rights of the F/V ANNA J at the time of application; [4] the regulatory history of the Moratorium Program does not clearly show the basis for the policy choice that the moratorium rights of the vessel would be presumed to stay with the vessel; [5] any potential unfairness to the Appellant from this policy choice is substantially mitigated by the issuance to him of an interim permit and qualification.  To Decision »
96-0052 Groundfish/Crab Moratorium
Issued: 11/16/1999 | Effective: 12/16/1999
Appellant: OEN, David J.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant applied for a vessel moratorium qualification and permit, based on the F/V ENDURANCE as an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application because its records did not show that the vessel landed moratorium groundfish or moratorium crab during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i) and 50 C.F.R. 679.2. Appellant produced (1) a printout from the Alaska Department of Fish & Game, showing Appellant's rockfish landings from the F/V ROSALYN in 1992 and the F/V ENDURANCE between 1993 and 1996; (2) a letter from the International Pacific Halibut Commission, stating that the F/V ENDURANCE landed Pacific halibut in September 1991; (3) a letter from Appellant, stating that when he purchased the F/V ENDURANCE, the "1993 rules" of the Vessel Moratorium Program allowed vessels with halibut landings to qualify for a moratorium permit.

AO concluded that Appellant's evidence was insufficient because halibut is not moratorium groundfish, and because the F/V ENDURANCE's earliest groundfish (rockfish) landings were made in 1993, which is outside the moratorium qualifying period. AO noted that the regulations of the Vessel Moratorium Program were adopted in 1996, and that the program is not governed by any rules that may have been proposed in 1993. Because the evidence in the record shows that the F/V ENDURANCE did not make qualifying moratorium landings, the vessel is not eligible for a moratorium qualification and permit.  To Decision »
96-0042 Groundfish/Crab Moratorium
Issued: 11/16/1999 | Effective: 12/16/1999
Appellant: MULLER, Donald N.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant applied for a vessel moratorium qualification and permit, based on the F/V FOXY LADY as an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application to fish moratorium crab because its records did not show that the vessel harvested moratorium crab in the Bering Sea/Aleutian Islands during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i) and 50 C.F.R. 679.2. Appellant submitted evidence from the Alaska Department of Fish & Game, which showed that the FOXY LADY made Tanner crab harvests in the Central Gulf of Alaska management area between 1988 and 1991.

AO found that the evidence in the record did not show that the F/V FOXY LADY made crab harvests in the Bering Sea/Aleutian Islands during the relevant period. As a consequence, we concluded that the F/V FOXY LADY was not eligible for a moratorium qualification and permit to fish moratorium crab.  To Decision »
96-0015 Groundfish/Crab Moratorium
Issued: 11/16/1999 | Effective: 12/16/1999
Appellant: LOCKHART, Glen
Disposition: Affirmed IAD
Abstract Terms:
    - Regulations
    - Vessel
    - Eligibility

Abstract:  Appellant applied for a vessel moratorium qualification for the F/V SABLEFISH under the Vessel Moratorium Program on Groundfish and Crab and applied to transfer the moratorium qualification of the F/V SABLEFISH to an unspecified vessel. Appellant stated that he owned the F/V SABLEFISH when it made qualifying landings in the qualifying period (January l, 1988 to February 9, 1992) and that he sold the F/V SABLEFISH in May 1991. Appellant argues that since the bill of sale of the F/V SABLEFISH did not expressly include moratorium rights, the moratorium rights of the vessel were not sold with the vessel. The question is whether, when the sale documents do not expressly mention moratorium rights, the person who is selling the vessel will be held to have sold the moratorium rights of the vessel with the vessel.

AO found: [1] 50 C.F.R. 679.4(c)(6) means that the owner of a vessel at the time of application is entitled to the moratorium qualification and permit that results from the landing history of the vessel unless, pursuant to a contract or agreement, the parties to the sale of the vessel severed the moratorium rights of the vessel from the vessel and the prior owner retained the moratorium rights of the vessel; [2] if the parties to a sale of a vessel did not expressly exclude moratorium rights of the vessel, the sale transferred the moratorium rights of the vessel with the vessel; [3] therefore, Appellant did not show that he owned the vessel or the moratorium rights to the vessel at the time of application. This Decision is consistent with RAM's interpretation of 50 C.F.R. 679.4(c)(6) and follows the OAA's decision in Yukon Queen Fisheries LLP, Appeal No. 96-0009.  To Decision »
96-0051 Groundfish/Crab Moratorium
Issued: 11/16/1999 | Effective: 12/16/1999
Appellant: THOMAS, John R.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant applied for a vessel moratorium qualification and permit, based on the F/V MERIDIAN as an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application to fish moratorium crab because its records did not show that the vessel harvested moratorium crab in the Bering Sea/Aleutian Islands during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i) and 50 C.F.R. 679.2. Appellant submitted state fish tickets, settlement sheets, check, and his CFEC permit card, as evidence that the F/V MERIDIAN made Tanner crab harvests in 1989 and 1990.

AO found that the evidence in the record did not show that the F/V MERIDIAN made crab harvests in the Bering Sea/Aleutian Islands during the relevant period. At best, the evidence showed only that the vessel made crab harvests in Kodiak fish management areas. As a consequence, the F/V MERIDIAN was not eligible for a moratorium qualification and permit to fish moratorium crab.  To Decision »
96-0017R Groundfish/Crab Moratorium
Issued: 11/16/1999 | Effective: 12/15/1999
Appellant: SCHOONER SEAFOODS, INC (Reconsideration)
Disposition: IAD Affirmed
Abstract Terms:
    - Vessel

Abstract:  Appellant applied for a vessel moratorium qualification and permit with a length overall (LOA) of 68 feet, based on the LOA of his original qualifying vessel, the F/V ALEUTIAN. Under 50 C.F.R. 679.2, a vessel's "original qualifying LOA" is the "LOA of the original moratorium qualifying vessel on June 24, 1992." If requested by RAM, an applicant is required to produce reliable documentation of a vessel's original qualifying LOA on June 24, 1992, such as a vessel survey, builder's plan, a state or Federal registration certificate, fishing records, etc. See 50 C.F.R. 679.4(c)(6). RAM rejected Appellant's claim for a vessel moratorium qualification and permit of 68 feet because its records showed the LOA of the F/V ALEUTIAN was 63 feet on June 24, 1992. Appellant produced a Federal Fisheries Permit for the vessel, dated March 8, 1996, which showed the vessel's LOA's at 68 feet.

AO concluded that the permit was not "reliable documentation" of Appellant's claim because the permit was issued nearly four years after June 24, 1992. Therefore, in light of the evidence of RAM's records, AO found that the weight of evidence showed that the LOA of the F/V ALEUTIAN was 63 feet as of June 24, 1992. As a result, Appellant was not entitled to a vessel moratorium qualification and permit with an LOA of 68 feet.  To Decision »
96-0028 Groundfish/Crab Moratorium
Issued: 11/10/1999 | Effective: 11/22/1999
Appellant: DESHONG, William
Disposition: IAD Affirmed
Abstract Terms:

Abstract:    To Decision »
96-0067 Halibut/Sablefish IFQ
Issued: 11/5/1999 | Effective: 12/6/1999
Appellant: LEVENSON, Mark
Disposition: Affirmed IAD
Abstract Terms:
    - IFQ Account

Abstract:  During the 1995 fishing season, Appellant landed halibut head-on from fish harvested in IFQ regulatory area 3A and 3B. NMFS weighed the fish under a conversion formula to determine the gutted, head-off weight of the fish. NMFS recorded the converted formula weight on NMFS landing reports, and debited the weight from Appellant's IFQ account. The processor subsequently processed the fish and recorded the actual head-off weight of the fish on state fish tickets. The converted weight on the NMFS landing reports was greater than the actual head-off weight recorded on state fish tickets.

At the end of 1995, RAM determined that Appellant's harvests were under his annual limit for IFQ regulatory 3A by 358 pounds, but over his annual limit for IFQ regulatory area 3B by 212 pounds. As a consequence, RAM increased Appellant's 1996 IFQ account for area 3A by the 358-pound "underage" and reduced his area 3B account by the 212-pound "overage." The result was a net increase of 146 pounds to Appellant's total fishing limit for the 1996 fishing season. Appellant claimed that RAM should have debited his 1995 IFQ account based on the weight recorded on his state fish tickets; and that RAM did not correctly adjust his 1996 IFQ accounts.

AO concluded that RAM correctly debited Appellant's 1995 IFQ account because the debit was based on the weight obtained initially at the time of landing, which was the weight recorded on the NMFS landing reports. AO also concluded that RAM correctly adjusted Appellant's 1996 IFQ accounts because the "overage" and "underage" adjustments were within ten percent of the annual harvest limit (of each IFQ regulatory area).   To Decision »
96-0017 Groundfish/Crab Moratorium
Issued: 11/1/1999 | Effective: 12/1/1999
Appellant: SCHOONER SEAFOODS, INC
Disposition: IAD Affirmed
Abstract Terms:
    - Vessel

Abstract:  Appellant applied for a vessel moratorium qualification and permit with a length overall (LOA) of 68 feet, based on the LOA of his original qualifying vessel, the F/V ALEUTIAN. Under 50 C.F.R. 679.2, a vessel's "original qualifying LOA" is the "LOA of the original moratorium qualifying vessel on June 24, 1992." If requested by RAM, an applicant is required to produce reliable documentation of a vessel's original qualifying LOA on June 24, 1992, such as a vessel survey, builder's plan, a state or Federal registration certificate, fishing records, etc. See 50 C.F.R. 679.4(c)(6). RAM rejected Appellant's claim for a vessel moratorium qualification and permit of 68 feet because its records showed the LOA of the F/V ALEUTIAN was 63 feet on June 24, 1992. Appellant produced a Federal Fisheries Permit for the vessel, dated March 8, 1996, which showed the vessel's LOA's at 68 feet.

AO concluded that the permit was not "reliable documentation" of Appellant's claim because the permit was issued nearly four years after June 24, 1992. Therefore, in light of the evidence of RAM's records, AO found that the weight of evidence showed that the LOA of the F/V ALEUTIAN was 63 feet as of June 24, 1992. As a result, Appellant was not entitled to a vessel moratorium qualification and permit with an LOA of 68 feet.  To Decision »
97-0005 Groundfish/Crab Moratorium
Issued: 11/1/1999 | Effective: 12/1/1999
Appellant: KURTH, Stephen
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant applied for a vessel moratorium qualification and permit, based on the F/V SHINAKU as an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application because its records did not show that the vessel made moratorium crab or moratorium groundfish landings during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i). On appeal, Appellant produced a letter in which he claimed that the F/V SHINAKU made halibut and sablefish landings, and other groundfish landings, during the qualifying period. Appellant did not produce state fish tickets, state processor reports, state landings reports, or any other documentation showing that the vessel made moratorium crab or moratorium groundfish landings during the relevant period.

AO weighed Appellant's assertion against RAM's records and concluded that the preponderance of evidence showed that the F/V SHINAKU did not make landings of moratorium crab or moratorium groundfish during the moratorium qualifying period of January 1, 1988, through February 9, 1992. AO noted that even if sablefish or halibut landings were made, as claimed, neither fish is a moratorium species under the Vessel Moratorium Program. As a result, AO concluded that the F/V SHINAKU was not eligible for a vessel moratorium qualification and permit.   To Decision »
96-0043 Groundfish/Crab Moratorium
Issued: 11/1/1999 | Effective: 12/1/1999
Appellant: BOTSFORD, Wallace
Disposition: Affirmed IAD
Abstract Terms:
    - Vessel
    - Eligibility
    - Regulations

Abstract:  Appellant simultaneously applied for a vessel moratorium qualification and permit for the F/V LADY JANE and applied to transfer the moratorium qualification of the F/V LADY JANE to the F/V MADRE DOLOROSA. Appellant stated that he owned the F/V LADY JANE throughout the qualifying period (January l, 1988 to February 9, 1992) and sold the F/V LADY JANE in May 1992. He owned the F/V MADRE DOLOROSA when he applied. Appellant did not allege or introduce any evidence that he retained the moratorium rights of the F/V LADY JANE when he sold that vessel. RAM denied the application for a moratorium qualification and permit for the F/V LADY JANE. The question is whether the owner of the vessel at the time of application or the owner of the vessel at the time the vessel made the qualifying landings is entitled to the moratorium qualification and permit that results from the vessel's landing history.

AO found: 50 C.F.R. 679.4(c)(6) means that the owner of a vessel at the time of application is entitled to the moratorium qualification and permit that results from the landing history of the vessel unless, pursuant to a contract or agreement, the parties to the sale of the vessel severed the moratorium rights of the vessel from the vessel and the prior owner retained the moratorium rights of the vessel. Appellant did not show that he owned the vessel or the moratorium rights to the vessel at the time of application.  To Decision »
96-0078 Groundfish/Crab Moratorium
Issued: 11/1/1999 | Effective: 12/1/1999
Appellant: EAMES, Dennis
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements

Abstract:  Appellant applied for a vessel moratorium qualification and permit, based on the F/V TALIA, as an "original qualifying vessel" under the Vessel Moratorium Program. RAM did not grant the vessel an endorsement to fish moratorium crab with pot gear. Appellant produced a state fish ticket for the harvest of crab in southeast Alaska on February 22, 1991; and a state fish ticket for the harvest of groundfish with longline gear on September 14, 1990.

AO found that the state fish tickets did not show that the vessel's crab landings were harvested in the Bering Sea/Aleutian Islands between January 1, 1988, and December 11, 1994, or that the vessel made moratorium groundfish landings with pot gear between January 1, 1988, and February 9, 1992, as required under 50 C.F.R. 679.4(c)(5)(i) and 50 C.F.R. 679.2 for a crab endorsement with pot gear. We concluded that the moratorium permit of the F/V TALIA is not entitled to an endorsement to fish moratorium crab with pot gear.   To Decision »
97-0012 Halibut/Sablefish IFQ
Issued: 10/29/1999 | Effective: 11/29/1999
Appellant: ANDERSON, James M.
Disposition: IAD Affirmed
Abstract Terms:

Abstract:    To Decision »
97-0015 Groundfish/Crab Moratorium
Issued: 10/25/1999 | Effective: 11/24/1999
Appellant: PARKER, Donald
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements

Abstract:  Appellant applied for a vessel moratorium qualification and permit with four gear endorsements: crab/pot gear; groundfish/trawl gear, groundfish/pot gear; groundfish/hook gear. The Official Record for the Moratorium Program indicated that Appellant was entitled to the groundfish endorsements but not the crab endorsement. Appellant submitted evidence of landings from his vessel of Tanner crab with pot gear in the Gulf of Alaska in January 1994.

AO found: 50 C.F.R. 679.4(c)(5) provides that to receive a gear endorsement to harvest crab with pot gear, a vessel must have made either [1] a landing of moratorium crab in period 1 (January l, 1998 to February 9, 1992) or [2] a landing of moratorium groundfish with any gear in period 1 and a landing of moratorium crab in period 2 (February 10, 1992 to December 11, 1994) or [3] a landing of moratorium groundfish with pot gear in period 1. 50 C.F.R. 679.2 defines moratorium crab as Tanner and king crab harvested in the Bering Sea/Aleutian Islands area. Tanner crab harvested in the Gulf of Alaska is not a moratorium crab species.   To Decision »
96-0077 Groundfish/Crab Moratorium
Issued: 10/25/1999 | Effective: 11/24/1999
Appellant: MURA, Merek
Disposition: Affirmed IAD
Abstract Terms:
    - Vessel

Abstract:  Appellant applied for a vessel moratorium qualification and permit with a length overall (LOA) of 48 feet, based on the LOA of his original qualifying vessel, the F/V BOBOLINK. Under 50 C.F.R. 679.2, a vessel's "original qualifying LOA" is the "LOA of the original moratorium qualifying vessel on June 24, 1992." If requested by RAM, an applicant is required to produce reliable documentation of a vessel's original qualifying LOA on June 24, 1992, such as a vessel survey, builder's plan, a state or Federal registration certificate, fishing records, etc. See, 50 C.F.R. 679.4(c)(6). RAM rejected Appellant's claim for a vessel moratorium qualification and permit of 48 feet because its records showed the LOA of the F/V BOBOLINK was 42 feet on June 24, 1992. Although RAM requested him to do so, Appellant did not document his claim.

AO found that Appellant's assertion was not "reliable documentation," and that his assertion was not sufficient evidence to overcome the presumption of RAM's records. AO found that the LOA of the BOBOLINK was 42 feet as of June 24, 1992. Therefore, Appellant was not entitled to a vessel moratorium qualification and permit with an LOA of 48 feet.   To Decision »
96-0044 Groundfish/Crab Moratorium
Issued: 10/25/1999 | Effective: 11/24/1999
Appellant: STREBEL, Jessey
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements

Abstract:  Appellant applied for a vessel moratorium qualification and permit with four gear endorsements: crab/pot gear; groundfish/trawl gear, groundfish/pot gear; groundfish/hook gear. The Official Record for the Moratorium Program indicated that Appellant was entitled to the groundfish endorsements but not the crab endorsement. Appellantl submitted evidence of landings of Tanner crab and Dungeness crab in the Gulf of Alaska from his vessel.

AO found: 50 C.F.R. 679.4(c)(5) provides that to receive a gear endorsement to harvest crab with pot gear, a vessel must have made either [1] a landing of moratorium crab in period 1 (January l, 1998 to February 9, 1992) or [2] a landing of moratorium groundfish with any gear in period 1 and a landing of moratorium crab in period 2 (February 10, 1992 to December 11, 1994) or [3] a landing of moratorium groundfish with pot gear in period 1. 50 C.F.R. 679.2 defines moratorium crab as Tanner and king crab harvested in the Bering Sea/Aleutian Islands area. Tanner crab or Dungeness crab harvested in the Gulf of Alaska are not moratorium crab species.  To Decision »
96-0040 Groundfish/Crab Moratorium
Issued: 10/25/1999 | Effective: 11/24/1999
Appellant: IVANOFF, Steven
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements

Abstract:  Appellant applied for a vessel moratorium qualification and permit with four gear endorsements: crab/pot gear; groundfish/trawl gear, groundfish/pot gear; groundfish/hook gear. The Official Record for the Moratorium Program indicated that Appellant was entitled to the groundfish endorsements but not the crab endorsement. Appellant submitted evidence that his vessel had made landings of Tanner crab in the Gulf of Alaska.

AO found: 50 C.F.R. 679.4(c)(5) provides that to receive a gear endorsement to harvest crab with pot gear, a vessel must have made either [1] a landing of moratorium crab in period 1 (January l, 1998 to February 9, 1992) or [2] a landing of moratorium groundfish with any gear in period 1 and a landing of moratorium crab in period 2 (February 10, 1992 to December 11, 1994) or [3] a landing of moratorium groundfish with pot gear in period 1. 50 C.F.R. 679.2 defines moratorium crab as Tanner and king crab harvested in the Bering Sea/Aleutian Islands area. Tanner crab harvested in the Gulf of Alaska is not a moratorium crab species.   To Decision »
96-0076 Groundfish/Crab Moratorium
Issued: 10/25/1999 | Effective: 11/24/1999
Appellant: DOAK, Don
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant applied for a vessel moratorium qualification and permit, based on the F/V KODIAK as an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application because its records did not show that the vessel landed moratorium groundfish or moratorium crab during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i) and 50 C.F.R. 679.2. Appellant produced a copy of his CFEC landings history for the F/V KODIAK between 1988 and 1994, which showed that the vessel did not make crab or groundfish landings until November 1992, after the moratorium qualifying period. On appeal, Appellant claimed that when he purchased the vessel he relied upon representations from brokers, the seller, and other fishermen, that the vessel would qualify for a moratorium permit. Appellant also claimed that NMFS told him in 1991 that any groundfish landings would qualify a vessel, and that he assumed that this meant that his sablefish and halibut landings would also qualify the vessel for a moratorium permit.

AO found: [1] the Vessel Moratorium Program is governed by federal regulations, and not by assumptions of Appellants or alleged representations of brokers, sellers, or fishermen; [2] sablefish and halibut are not considered "moratorium species" under the vessel moratorium program; [3] Because the evidence in the record did not show that the F/V KODIAK landed moratorium groundfish or moratorium crab during the qualifying period, we concluded that the vessel was not eligible for a moratorium qualification and permit.   To Decision »
96-0073 Groundfish/Crab Moratorium
Issued: 10/25/1999 | Effective: 11/24/1999
Appellant: TRIDENT SEAFOODS CORP.
Disposition: Affirmed IAD
Abstract Terms:
    - Vessel

Abstract:  Appellant applied for a vessel moratorium qualification and permit with a length overall (LOA) of 110 feet, based on the LOA of his original qualifying vessel, the F/V FAR WEST LEADER. Under 50 C.F.R. 679.2, a vessel's "original qualifying LOA" is the "LOA of the original moratorium qualifying vessel on June 24, 1992." If requested by RAM, an applicant is required to produce reliable documentation of a vessel's original qualifying LOA on June 24, 1992, such as a vessel survey, builder's plan, a state or Federal registration certificate, fishing records, etc. See 50 C.F.R. 679.4(c)(6). RAM rejected Appellant's claim for a vessel moratorium qualification and permit of 110 feet because its records showed the LOA of the F/V FAR WEST LEADER was 90 feet on June 24, 1992. Appellant produced (1) a U.S. Coast Guard Certificate of Documentation, dated November 9, 1993, which shows the LOA of the F/V FAR WEST LEADER at 100.6 feet; (2) a marine survey report for the F/V FAR WEST LEADER, dated November 8, 1990, which shows the vessel's LOA at 90 feet; and a stability report for the FAR WEST LEADER, dated November 17, 1993, which shows the vessel's LOA at 107.7, and that the vessel was "lengthened and repowered" in 1993.

AO found that the weight of the evidence showed that the LOA of the F/V FAR WEST LEADER was 90 feet on June 24, 1992. Consequently, Appellant was not entitled to a vessel moratorium qualification and permit with an LOA of 110 feet.  To Decision »
96-0064 Groundfish/Crab Moratorium
Issued: 10/25/1999 | Effective: 11/24/1999
Appellant: PEDERSEN, David
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements

Abstract:  Appellant applied for a vessel moratorium qualification and permit with four gear endorsements: crab/pot gear; groundfish/trawl gear, groundfish/pot gear; groundfish/hook gear. The Official Record for the Moratorium Program indicated that Appellant was entitled to the groundfish endorsements but not the crab endorsement. Appellant submitted evidence of landings of Tanner crab in the Gulf of Alaska between January l, 1988 and February 9, 1992.

AO found: 50 C.F.R. 679.4(c)(5) provides that to receive a gear endorsement to harvest crab with pot gear, a vessel must have made either [1] a landing of moratorium crab in period 1 (January l, 1998 to February 9, 1992) or [2] a landing of moratorium groundfish with any gear in period 1 and a landing of moratorium crab in period 2 (February 10, 1992 to December 11, 1994) or [3] a landing of moratorium groundfish with pot gear in period 1. 50 C.F.R. 679.2 defines moratorium crab as Tanner and king crab harvested in the Bering Sea/Aleutian Islands area. Tanner crab harvested in the Gulf of Alaska is not a moratorium crab species.  To Decision »
97-0008 Groundfish/Crab Moratorium
Issued: 10/25/1999 | Effective: 11/24/1999
Appellant: BASARGIN, Zahary (Estate)
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant applied for a vessel moratorium qualification and permit. 50 C.F.R. 679.4(c)(7)(i) provides that to obtain a moratorium qualification and permit by landings, a vessel must have a legal landing of moratorium crab or moratorium groundfish in the qualifying period, which was January l, 1998 to February 9, 1992. The evidence submitted by the Estate showed landings of moratorium groundfish on May 6, 1987, May 30, 1992 and May 29, 1994. AO found: these landings are before or after but not during the qualifying period. Therefore the F/V WHITE NIGHT does not have moratorium qualification based on its own landings.  To Decision »
96-0033 Groundfish/Crab Moratorium
Issued: 10/19/1999 | Effective: 11/18/1999
Appellant: SLITER, Robert
Disposition: Affirmed IAD
Abstract Terms:
    - Endorsements

Abstract:  The Official Record for the Moratorium Program indicated that Appellant was entitled to a moratorium qualification and permit with three gear endorsements: groundfish/trawl gear; groundfish/pot gear; and groundfish/hook gear. Appellant argued that he was also entitled to a crab/pot gear endorsement and submitted evidence of landings of Tanner crab in Southeast Alaska from his vessel.

AO found: 50 C.F.R. 679.4(c)(5) provides that to receive an endorsement to harvest crab with pot gear, a vessel must have made either [1] a landing of moratorium crab in period 1 (January l, 1998 to February 9, 1992) or [2] a landing of moratorium groundfish with any gear in period 1 and a landing of moratorium crab in period 2 (February 10, 1992 to December 11, 1994) or [3] a landing of moratorium groundfish with pot gear in period 1. 50 C.F.R. 679.2 defines moratorium crab as Tanner and king crab harvested in the Bering Sea/Aleutian Islands area. Tanner crab harvested in Southeast Alaska is not a moratorium crab species.  To Decision »
97-0006 Groundfish/Crab Moratorium
Issued: 10/18/1999 | Effective: 11/18/1999
Appellant: EGOROFF, Fedosey
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant applied for a vessel moratorium qualification and permit. Appellant claimed moratorium qualification because his vessel made landings of groundfish in the Gulf of Alaska on May 30, 1994. AO found: 50 C.F.R. 679.4(c)(7)(i) provides that, to obtain a moratorium qualification by landings, a vessel must have legal landings of moratorium crab or groundfish between January l, 1998 and February 9, 1992. Appellant's landings were outside the qualifying period.   To Decision »
97-0014 Scallop Moratorium
Issued: 10/15/1999 | Effective: 11/5/1999
Appellant: MAX HULSE, et al.
Disposition: IAD Affirmed
Abstract Terms:

Abstract:    To Decision »
96-0034 Groundfish/Crab Moratorium
Issued: 9/30/1999 | Effective: 10/1/1999
Appellant: DEFIANT FISHERIES
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant applied for a vessel moratorium qualification and permit. Appellant claimed moratorium qualification because his vessel had made landings of Tanner crab with pot gear in the Gulf of Alaska on January 22, 1992. 50 C.F.R. 679.4(c)(7)(i) provides that to obtain a moratorium qualification by landings, a vessel must have a legal landing of moratorium crab or moratorium groundfish between January l, 1998 and February 9, 1992. AO found: 50 C.F.R. 679.2 defines moratorium crab as Tanner and king crab harvested in the Bering Sea/Aleutian Islands area. Tanner crab harvested in the Gulf of Alaska is not a moratorium crab species.  To Decision »
95-0116 Halibut/Sablefish IFQ
Issued: 9/30/1999 | Effective: 11/1/1999
Appellant: ALASKA OCEAN FISHERIES, INC
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Unlawful Discrimination

Abstract:  RAM determined that Appellant did not own or lease a vessel that made legal landings of sablefish during the QS qualifying period. Appellant had produced a processor's landing report to show that his vessel landed sablefish in 1990, a QS qualifying year. However, the landing was not supported by any state fish tickets or federal catch reports. The processor's report was unsigned and undated, and the report did not show when the fish were landed, where the fish were harvested, and the type of gear used to harvest the fish. The AO found that there were no state fish tickets or federal catch reports to show that the Appellant owned or leased a vessel that made legal landings of sablefish. As a result, the AO concluded that the Appellant was not qualified for sablefish QS.

The Appellant claimed that the IFQ regulations unlawfully discriminate against those who made substantial investments in the halibut and sablefish fisheries, but who were not issued QS because of absence of legal landings during the QS qualifying period. The AO concluded that the Office of Administrative Appeals is bound by the regulations of the IFQ program, and that the AO did not have authority to set aside the regulations in this case, which require evidence of a legal landings during the QS qualifying period.   To Decision »
95-0117 Halibut/Sablefish IFQ
Issued: 9/30/1999 | Effective: 11/1/1999
Appellant: LUNDAHL, Richard
Disposition: Affirmed IAD
Abstract Terms:
    - Quota Share Amount

Abstract:  Between 1984 and 1986, 2% of the full scale weight of halibut and sablefish landed by Appellant was not recorded on state fish tickets because the processors did not pay for ice and slime. However, between 1987 and 1990, the full scale weight of Appellant's landings was recorded on state fish tickets because of the policy of the processor to pay for ice and slime.

RAM denied Appellant additional QS credit for the weight of ice and slime that was not recorded on state fish tickets. On appeal, Appellant claimed that he should not be penalized for the varying polices of processors with regard to ice and slime. AO concluded that while ice and slime may be included in the calculation of QS, RAM properly denied Appellant's claim for additional QS because the only evidence that can be used to calculate a person's QS is the weight of landed fish recorded on state fish tickets.  To Decision »
97-0011 Halibut/Sablefish IFQ
Issued: 9/29/1999 | Effective: 10/29/1999
Appellant: MARTIN, Paul
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Appellant's application for QS was untimely filed. Appellant claims that he mailed two RFAs before the deadline, but RAM never received the RFAs. Appellant's third RFA was also rejected by RAM for untimeliness. Appellant claims that his wife's illness, trailer fire, and business interests prevented him from mailing the RFA in a timely manner. Although ordered by the Office of Administrative Appeals, Appellant did not describe the circumstances of the mailing of his first two RFAs. RAM's records show that Appellant would have been qualified for QS if his application had been filed on time.

AO found and concluded that (1) Appellant did not mail, or take decisive action to file, an RFA before the July 15, 1994, application deadline; (2) Appellant was not prevented from filing a timely RFA by a circumstance beyond his control; (3) the application period for the filing of Appellant's RFA cannot be equitably tolled in this case; and (4) Appellant is ineligible for QS.   To Decision »
95-0058 Halibut/Sablefish IFQ
Issued: 9/28/1999 | Effective: 10/28/1999
Appellant: PHILLIPS, Benjamin
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Regulations

Abstract:  Appellant was in high school from 1984 to 1987. He states that he purchased a vessel in 1989 with the sole intent of fishing halibut in IFQ regulatory area 2C off Southeast Alaska but did not do so because the insurance policy for the vessel prevented him from using the vessel in that area because of his age (he was 21). Appellant instead fished halibut in IPHC regulatory area 2A.

AO concluded that Appellant was not a qualified person within 50 C.F.R. 679.40(a)(2)(A) because his vessel did not make any legal landings of halibut or sablefish in any IFQ regulatory area in 1988, 1989 or 1990, which are the QS qualifying years as defined in 50 C.F.R. 679.40(a)(3)(i). On Appellant's claim of age discrimination based on his youth, AO concluded [1] the regulations did not deny Appellant QS because of his age but because he was not a qualified person as defined by 50 C.F.R. 679.40(a)(2); [2] the IFQ regulations do not permit an award of QS based on an applicant's claim that he or she did not make landings due to hardship or unavoidable circumstances but instead base calculation of QS for a qualified person on his or her best five years of fishing from 1984 to 1990; [3] the laws against age discrimination primarily prevent discrimination against older workers in employment; [4] the alleged discrimination, if any, was by Appellant's insurer, not NMFS; [5] challenges to the legality of the IFQ regulations are not within the purview of the NMFS Office of Administrative Appeals.   To Decision »
96-0041 Groundfish/Crab Moratorium
Issued: 9/27/1999 | Effective: 10/27/1999
Appellant: WALLING, Roger
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant applied for a vessel moratorium qualification and permit. Appellant claimed moratorium qualification because his vessel had made landings of halibut and salmon. AO found: 50 C.F.R. 679.4(c)(7)(i) provides that, to obtain a moratorium qualification by landings, a vessel must have legal landings of moratorium species between January l, 1998 and February 9, 1992. 50 C.F.R. 679.2 defines moratorium species. Salmon and halibut are not moratorium species.  To Decision »
96-0002R Halibut/Sablefish IFQ
Issued: 9/16/1999 | Effective: 10/16/1999
Appellant: MITTENEN, Thomas W. (Reconsideration)
Disposition: Affirmed
Abstract Terms:
    - Landings
    - Lease
    - Corporation Changes
    - Eligibility

Abstract:  Further Action: Motion for Reconsideration by Appellant, 8 Feb 1999; Order granting reconsideration in part, staying decision in part, 12 Feb 1999. The Order granting reconsideration stated that AO would reconsider whether the AO mistakenly concluded that (1) the F/V MARGARET G did not make legal landings of sablefish in 1988; (2) Mr. Mittenen's lease the F/V MARGARET G in 1988 did not need to be addressed; and (3) Mr. Mittenen's claim of the lease of the F/V SALTY III and the F/V PARAGON could not be considered on appeal. The remaining parts of the decision were not stayed or reconsidered. On reconsideration, the AO found that a state fish ticket had been overlooked for a legal landing of halibut from the F/V MARGARET G in 1988, but that Mr. Mittenen could not receive IFQ credit for the landing because the vessel had not filed an intent to operate with the state of Alaska at time of the landing of the fish. The "intent to operate" was required by the state of Alaska, and without it, the halibut landings were not legal landings for purposes of QS. The AO concluded that the AO could not consider new evidence on Reconsideration to show that the F/V MARGARET G made legal landings of sablefish.

AO concluded that, even if he had considered the newly provided evidence, the evidence would not have been sufficient to show that the landings were legal. AO reaffirmed his ruling that it was not necessary to address Mr. Mittenen's claim that he leased the F/V MARGARET G in 1988 because the vessel did not make legal landings of halibut or sablefish in that year. AO also found that Mr. Mittenen was given a reasonable opportunity to claim on his RFA that he leased the F/V SALTY III and the F/V PARAGON. AO reaffirmed his conclusion that Mr. Mittenen could not, on appeal, produce evidence that he leased those vessels.   To Decision »
95-0012 Halibut/Sablefish IFQ
Issued: 8/9/1999 | Effective: 9/8/1999
Appellant: VAN SKY, Dennis
Disposition: Vacated IAD regarding denial t
Abstract Terms:
    - Regulations
    - Due Process
    - Official Record

Abstract:  Appellant submitted a timely request for application (RFA) and a timely application for quota share (QS) but crossed out a paragraph on the RFA form, which waived the confidentiality of State of Alaska fish ticket data showing landings made on his State commercial fishing permit. The Restricted Access Management (RAM) program issued an Initial Administrative Determination (IAD), which denied Appellant's application for QS because he had not signed the confidentiality waiver. Appellant then signed the waiver. RAM concluded that this cured the defect in Appellant's application. RAM issued an IAD on Reconsideration, which vacated the original IAD to the extent that it completely denied Appellant QS. But RAM affirmed the original IAD to the extent that it denied Appellant's application for QS for 1995 because, RAM stated, Appellant's QS was not in the quota share pool when it was established on January 31, 1995.

AO found that Appellant's halibut QS was, in fact, included in the 1995 QS pool and that RAM could have issued Appellant a 1995 IFQ permit. AO noted that no other person was claiming IFQ credit for landings made on Appellant's permit and that Appellant was not claiming credit for landings made on anyone else's permit. AO concluded: [1] RAM's failure to issue and mail the appellant an IFQ permit, after determining that he was qualified for an initial issuance of QS and that his application was complete, violates 50 C.F.R. 679.40(c)(3); [2] 50 C.F.R. 679.4(a)(1)(ii) and 50 C.F.R. 676.20(d), which refer to complete applications, do not authorize RAM to deny or delay issuance of QS or an IFQ permit to a qualified applicant, whose confidentiality waiver is not, in fact, needed and whose application and RFA are, in all other respects, complete; [3] RAM was therefore ordered to increase appellant's IFQ account by 27,900 units of halibut QS for the current fishing season, the amount that appellant should have received in 1995.   To Decision »
95-0015 Halibut/Sablefish IFQ
Issued: 6/11/1999 | Effective: 7/12/1999
Appellant: BEAM, Gregory L.
Disposition: Affirmed IAD
Abstract Terms:
    - Vessel

Abstract:  RAM assigned Appellant's halibut QS and sablefish QS to vessel category "C" because its records showed that Appellant fished aboard the F/V IDA JUNE, a 51 foot vessel, in 1991, during his most recent year of participation. A vessel category "C" assignment authorizes the harvesting of IFQ halibut or groundfish on a qualified vessel 60 feet or less. Appellant claims that he processed halibut aboard the vessel and that as a result, RAM should have assigned his QS to vessel category "A." Appellant asserted that the halibut was headed, iced, and cleaned in a manner requiring no further preparation.

RAM determined that the fish were not processed. RAM based its conclusion on the definition of "processing" under the federal groundfish regulations. Because Appellant's fish was halibut, the AO concluded that the federal groundfish regulations should not be used. Instead, the AO determined that state of Alaska regulations should be used in this case because the halibut was landed in Alaska. Under the state's regulations, "butchering" constitututes "processing." Because "butchering" is tantamount to "heading," the AO concluded that the halibut aboard Appellant's vessel was processed in 1991.

Even though the fish was "processed," AO concluded that RAM could not assign Appellant's QS to vessel category "A" because the fish had not been lawfully processed under state law. The IFQ regulations require an applicant for QS to be incompliance with both federal and state regulations in effect at the time of processing. Appellant did not have an Alaska Department of Environmental Conservation seafood processor's permit, and an Alaska Department of Revenue Fisheries Business License, nor had he filed an intent to operate with the Alaska Department of Fish and Game, at the time of processing. The AO noted in the Decision that Appellant could continue to handle the fish in the same manner as he had done in 1991 because he was not in violation of federal licensing or processing requirements.  To Decision »
98-0002R Halibut/Sablefish IFQ
Issued: 6/9/1999 | Effective: 7/9/1999
Appellant: DUFFUS, Kenneth M. (Reconsideration)
Disposition: Affirmed IAD
Abstract Terms:
    - Corporation Changes
    - Eligibility
    - Vessel

Abstract:  Appellant applied for QS, based on his ownership of the F/V ENTERPRISE II between 1986 and 1990. RAM determined that D&G Enterprises leased the vessel between 1987 and 1990, and awarded QS to D&G Enterprises on that basis. Appellant owned 50% of D&G Enterprises during that period. RAM did not award QS to Appellant (or to anyone else) for the halibut landings made from the F/V ENTERPRISE II in 1986. RAM did not award the QS to Appellant because it determined that he was not a 'qualified person.' Under the IFQ regulations, a 'qualified person' is a person who owned or leased a vessel that made legal landings of halibut or sablefish during a QS qualifying year (1988, 1989, or 1990). RAM's records did not show that Appellant owned (or leased) a vessel that made legal halibut or sablefish landings during the QS qualifying period.

On appeal, AO found that D&G Enterprises, Inc. was a separate legal entity (as a corporation) that had leased the F/V ENTERPRISE II from Appellant during the entire QS qualifying period; AO also found that Appellant had not made other halibut landings as an individual from any vessel during that period. As a result, the AO concluded that while Appellant was part owner of D&G Enterprises, which is a qualified person, he was not a 'qualified person' as an individual, for purposes of initial issuance of QS. Consequently, AO concluded that Appellant could not be issued QS, based on the halibut landings made from the F/V ENTERPRISES II in 1986.

Further action: Appellant filed a Motion for Reconsideration, in which he claimed that D&G Enterprises, Inc. was not a separate legal entity, apart from Appellant, because the corporation was run like a partnership during the period of the lease of the F/V ENTERPRISE II; and that as a result, Appellant was a qualified person (as part owner of D&G Enterprises) and entitled to receive the QS associated with the halibut landings made by the F/V ENTERPRISE II in 1986.

In a Decision on Reconsideration, published June 9, 1999, the AO found that D&G Enterprises, Inc. was in existence during the QS qualifying period, and that as result, Appellant could not be a qualified person, based on the halibut landings from the F/V ENTERPRISE II. Consequently, AO concluded that RAM has no authority to issue QS to Appellant as a 'qualified person,' and that under the IFQ regulations, D&G Enterprises, Inc. is the only qualified person for QS with respect to the F/V ENTERPRISE II.  To Decision »
95-0048 Halibut/Sablefish IFQ
Issued: 6/3/1999 | Effective: 7/6/1999
Appellant: HANSON, Jeff W.
Disposition:
Abstract Terms:
    - Eligibility
    - Regulations

Abstract:  Appellant argued that an applicant for halibut and sablefish quota shares need not qualify separately for each species; rather, he argued, qualification for one species automatically qualifies an applicant for the other. Appellant based his argument on the regulation which defines a qualified person as a person whose vessel made legal landings of halibut or sablefish during the QS qualifying period. AO concluded that applicants for QS must qualify separately for halibut QS and sablefish QS. AO based his decision on long-standing agency practice and a NMFS interpretive rule, and cited our decision in Patrick Selfridge as precedent. AO also concluded that the Appellant cannot receive an initial issuance of sablefish QS based on a hardship or unavoidable circumstances claim because initial issuance must be based on actual not hypothetical landings and because the North Pacific Fishery Management Council in 1994 rejected a proposal to create a "hardship" exception to this rule.

Further action: Appellant was awarded sablefish QS as a result of the Ninth U.S. Circuit Court of Appeals decision in Wards Cove Packing Corp. v. National Marine Fisheries Service, 307 F.3d 1214 (CA9, 2002). [See abstract to Wards Cove Packing, Appeal No. 96-0068 (June 8, 2000).]   To Decision »
98-0002 Halibut/Sablefish IFQ
Issued: 5/5/1999 | Effective: 6/9/1999
Appellant: DUFFUS, Kenneth M.
Disposition: Affirmed IAD
Abstract Terms:
    - Vessel
    - Corporation Changes
    - Eligibility

Abstract:  Appellant applied for QS, based on his ownership of the F/V ENTERPRISE II between 1986 and 1990. RAM determined that D&G Enterprises leased the vessel between 1987 and 1990, and awarded QS to D&G Enterprises on that basis. Appellant owned 50% of D&G Enterprises during that period. RAM did not award QS to Appellant (or to anyone else) for the halibut landings made from the F/V ENTERPRISE II in 1986. RAM did not award the QS to Appellant because it determined that he was not a 'qualified person.' Under the IFQ regulations, a 'qualified person' is a person who owned or leased a vessel that made legal landings of halibut or sablefish during a QS qualifying year (1988, 1989, or 1990). RAM's records did not show that Appellant owned (or leased) a vessel that made legal halibut or sablefish landings during the QS qualifying period.

On appeal, AO found that D&G Enterprises, Inc. was a separate legal entity (as a corporation) that had leased the F/V ENTERPRISE II from Appellant during the entire QS qualifying period; AO also found that Appellant had not made other halibut landings as an individual from any vessel during that period. As a result, the AO concluded that while Appellant was part owner of D&G Enterprises, which is a qualified person, he was not a 'qualified person' as an individual, for purposes of initial issuance of QS. Consequently, AO concluded that Appellant could not be issued QS, based on the halibut landings made from the F/V ENTERPRISES II in 1986.

Further action: Appellant filed a Motion for Reconsideration, in which he claimed that D&G Enterprises, Inc. was not a separate legal entity, apart from Appellant, because the corporation was run like a partnership during the period of the lease of the F/V ENTERPRISE II; and that as a result, Appellant was a qualified person (as part owner of D&G Enterprises) and entitled to receive the QS associated with the halibut landings made by the F/V ENTERPRISE II in 1986.

In a Decision on Reconsideration, published June 9, 1999, the AO found that D&G Enterprises, Inc. was in existence during the QS qualifying period, and that as result, Appellant could not be a qualified person, based on the halibut landings from the F/V ENTERPRISE II. Consequently, AO concluded that RAM has no authority to issue QS to Appellant as a 'qualified person,' and that under the IFQ regulations, D&G Enterprises, Inc. is the only qualified person for QS with respect to the F/V ENTERPRISE II.  To Decision »
95-0108R Halibut/Sablefish IFQ
Issued: 5/5/1999 | Effective: 6/4/1999
Appellant: ATTWOOD, Roger (Reconsideration)
Disposition: IAD Affirmed
Abstract Terms:
    - Vessel

Abstract:  RAM denied Appellant's request to have his halibut quota share (QS) reassigned from vessel category C, catcher vessels from over 35 feet to 60 feet length overall, to vessel category A, which is for freezer vessels of any length. To qualify for vessel category A halibut QS, an applicant must have processed halibut aboard the freezer vessel during the applicant's "most recent year of participation" within the period January l, 1988 through September 25, 1991 [50 C.F.R. ? 679.40(a)(5)(i)]. Appellant's last year of participation was 1988. The IAD concluded that appellant had not provided evidence that in 1988 he landed processed halibut or had a federal processing license.

AO found: [1] although the IFQ regulations do not define processing, other federal regulations and a State regulation provide that freezing is included within the definition of processing; [2] appellant showed, by a preponderance of evidence, that he froze halibut on board his vessel in 1988 and therefore his vessel was a catcher/processor; [3] for processing of halibut to qualify a vessel for category A designation, the processing must be lawful; [4] in 1988, there was no requirement that a catcher/processor vessel have a federal processing license to lawfully freeze halibut at sea; [4] appellant's processing on board his vessel in 1988 did not comply with all the State of Alaska requirements for halibut processing in effect in 1988 and therefore was not lawful.   To Decision »
96-0066 Halibut/Sablefish IFQ
Issued: 4/22/1999 | Effective: 5/24/1999
Appellant: SIMPSON, Kenneth M.
Disposition: Affirmed IAD
Abstract Terms:
    - IFQ Account
    - Regulations

Abstract:  Appellant holds halibut quota shares and made two IFQ landings of halibut at Cordova in 1995. A NMFS enforcement officer in Cordova ordered that Appellant's fish be weighed at the dock, head-on, immediately after unloading from his vessel. In accordance with former 50 C.F.R. 676.22(c)(1995), a conversion factor of 0.9 was applied to the head-on weight. The resulting weight was entered on an IFQ landing report and debited from Mr. Simpson's 1995 IFQ account. The halibut was subsequently beheaded, weighed and recorded on fish tickets. The actual total head-off weight was 2,687 pounds less than the converted head-on weight. Appellant appeals to have 2,687 pounds of halibut IFQ added to his account by an underage adjustment (carryover) for a future fishing season under 50 C.F.R. 679.40(e).

AO found: [1] former regulation 50 C.F.R. 676.22(c)(3)(ii)(1995) did not give appellant the right to chose whether to report halibut weight as head-on or head-off for debiting his IFQ account; [2] former regulation 50 C.F.R. 676.22(c)(3)(ii)(1995) requires that the fish weight for debiting an IFQ account is the weight of the fish obtained initially, regardless of whether the weight was reported on a landing report or a fish ticket; [3] IFQ regulations in effect at the time of the decision [50 C.F.R. 679.42(c)(2)] clearly provide that NMFS only use IFQ landing reports to debit IFQ accounts; [4] NMFS has a legitimate interest in permitting its enforcement officers to exercise good faith judgment whether to require a fisherman to weigh fish heads-on at dockside versus a heads-off weight at a more distant location, such as a cannery; [5] this interest outweighs the fisherman's interest in selecting the weighing method that is most profitable; [6] absent evidence that the enforcement officer in Cordova acted in bad faith, it is reasonable to presume that the agent required fish to be weighed dockside to more easily and surely verify the landings; [7] NMFS did not violate appellant's right to fair and equitable treatment under the North Pacific Halibut Act of 1982 and the Equal Protection Clause of the United States August 2, 2005 Constitution by permitting an enforcement officer in Cordova to order that appellant submit a heads-on weight for debiting his halibut IFQ account even assuming that enforcement officers in Kodiak permit heads-off weighing.  To Decision »
95-0108 Halibut/Sablefish IFQ
Issued: 4/2/1999 | Effective: 5/3/1999
Appellant: ATTWOOD, Roger
Disposition: Affirmed IAD
Abstract Terms:
    - Vessel

Abstract:  RAM denied Appellant's request to have his halibut quota share (QS) reassigned from vessel category C, catcher vessels from over 35 feet to 60 feet length overall, to vessel category A, which is for freezer vessels of any length. To qualify for vessel category A halibut QS, an applicant must have processed halibut aboard the freezer vessel during the applicant's "most recent year of participation" within the period January l, 1988 through September 25, 1991 [50 C.F.R. ? 679.40(a)(5)(i)]. Appellant's last year of participation was 1988. The IAD concluded that appellant had not provided evidence that in 1988 he landed processed halibut or had a federal processing license.

AO found: [1] although the IFQ regulations do not define processing, other federal regulations and a State regulation provide that freezing is included within the definition of processing; [2] appellant showed, by a preponderance of evidence, that he froze halibut on board his vessel in 1988 and therefore his vessel was a catcher/processor; [3] for processing of halibut to qualify a vessel for category A designation, the processing must be lawful; [4] in 1988, there was no requirement that a catcher/processor vessel have a federal processing license to lawfully freeze halibut at sea; [4] appellant's processing on board his vessel in 1988 did not comply with all the State of Alaska requirements for halibut processing in effect in 1988 and therefore was not lawful.   To Decision »
96-0004 Halibut/Sablefish IFQ
Issued: 2/1/1999 | Effective: 3/3/1999
Appellant: FERRIER, Delbert L.
Disposition: Affirmed IAD
Abstract Terms:
    - Landings

Abstract:  Appellant's application for additional halibut QS was denied on the grounds that the claimed landings were not supported by state fish ticket evidence as required by IFQ regulations. Appellant sought credit for an additional 32,800 pounds he claimed were offloaded to a fish buyer in 1984 and 1985. Appellant did not produce any copies of state fish tickets, claiming that his copies of the tickets were lost or destroyed. Appellant did not account for what became of the other copies of fish tickets that should have been retained by the IPHC, State of Alaska and the buyer of the halibut. Appellant submitted other evidence of the claimed landings which included a videotape, affidavits of two crewmembers, affidavits from the buyer, an affidavit of a person who observed the Appellant's vessel "low in the water", and an affidavit from a person who stated that he witnessed the transfer of halibut from Appellant's vessel to the buyer's. Appellant argued that he should not be denied credit for the landings just because he did not save copies of his fish tickets; and, that it is unfair and unjust to ignore the other evidence he presented. Appellant proposed that his average halibut catch for other years be used to arrive at a fair estimate of the number of pounds he landed in 1984 and 1985.

AO found or concluded that: (1) the halibut landings that Appellant claimed were made from his vessel in 1984 and 1985 were not properly reported to the government as required by state regulations in effect at the time of the allege landings; (2) Appellant's other evidence cannot be used in lieu of state fish tickets to prove he made legal landings in 1984 and 1985; (3) the halibut landings that Appellant claimed were made from his vessel in 1984 and 1985 were not legal landings; (4) Appellant cannot receive IFQ credit for additional pounds of claimed halibut in the absence of state fish ticket evidence; and, (5) RAM properly denied Appellant's claim.  To Decision »
96-0087 Halibut/Sablefish IFQ
Issued: 1/26/1999 | Effective: 2/25/1999
Appellant: REUTOV, Mihey V.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant's application for sablefish QS was denied because he could not prove that he had made qualifying landings from a vessel owned or leased by him during the QS qualifying period of 1988-1990. RAM had no record that Appellant owned or leased a vessel that made sablefish landings during the qualifying period. Appellant submitted no proof of landings, nor did he claim that he made qualifying landings. Appellant argued that he should qualify for initial issuance because the Exxon Valdez oil spill prevented him from participating in the sablefish fishery in 1989.

AO concluded that: (1) there was no evidence in the record that Appellant owned or leased a August 2, 2005 vessel that made landings of sablefish during the qualifying period; and, (2) Appellant cannot qualify for initial issuance of QS based on landings he might have made but for the Exxon Valdez oil spill.  To Decision »
95-0130 Halibut/Sablefish IFQ
Issued: 1/26/1999 | Effective: 2/25/1999
Appellant: SPEZIALY, Marco T.
Disposition: Affirmed IAD
Abstract Terms:
    - Landings
    - Quota Share Amount

Abstract:  Appellant's application for additional halibut QS was denied because he did not have state fish tickets for his claimed landings, and RAM had no record of his additional landings. To prove he made additional landings, Appellant submitted a one-page printout summarizing his landings in pounds by date during 1985-1989, and four pages of photocopied information which he claimed were vessel log entries for his landings. Although ordered to do so by the AO, Appellant never produced state fish tickets or federal catch reports for his claimed additional landings.

AO found or concluded that: (1) Appellant did not record his claimed additional landings on state fish tickets or federal catch reports; (2) state fish tickets and federal catch reports are the only evidence that can be used to prove legal landings; and, (3) Appellant was not qualified for an initial issuance of additional QS based on the landings he claimed in his appeal.   To Decision »
95-0142 Halibut/Sablefish IFQ
Issued: 1/26/1999 | Effective: 2/25/1999
Appellant: CATTERALL, R. Brian
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant's request (application) for halibut QS was denied because RAM had no evidence that he owned or leased a vessel that made qualifying landings during the qualifying period.

AO found that: (1) Appellant's 1988 State of Washington fish ticket is for halibut harvested in a non-IFQ regulatory area; (2) Appellant's 1986 and 1987 State of Alaska fish tickets are for landings of halibut made outside the qualifying period; (3) Appellant was not denied halibut QS because he did not apply in his RFA, but because RAM determined that he made no landings of halibut during QS qualifying years, and that he could not be automatically qualified for halibut QS as a result of having qualified for sablefish QS; (4) there is no evidence in the record showing that Appellant made any other landings of halibut during the qualifying period; (5) an applicant cannot receive QS for halibut harvested in a non-IFQ regulatory area; (6) an applicant cannot use landings of halibut made outside the QS qualifying years to qualify; (7) an applicant cannot receive QS for halibut landings that were never made because of mechanical failure of a vessel; (8) Appellant did not present sufficient evidence of qualifying halibut landings; (9) an applicant for QS must qualify separately for each species; and (10) Appellant is not eligible for an initial issuance of halibut QS.  To Decision »
95-0098 Halibut/Sablefish IFQ
Issued: 1/26/1999 | Effective: 2/25/1999
Appellant: SANDELIN, Lonny C
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Appellant's application for QS was denied because his Request for Application for Quota Share (RFA) was not filed by the July 15, 1994 deadline. RAM sent the Appellant an RFA in December 1993. When RAM had not received Appellant's RFA back by April 5, 1994, it sent him a notice to that effect. When, as of June 15, 1994 RAM still had not received Appellant's RFA back, it sent him another notice and a second RFA packet. Ten months later, on April 10, 1995, RAM finally received Appellant's completed RFA. It had been sent first-class mail and the envelope was postmarked at Seattle, Washington on April 6, 1995. Appellant's signature on the RFA was dated April 5, 1995. On appeal, Appellant stated that his mother sent in his original application by regular mail in late April 1994. Affidavits were provided by the Appellant, his mother and his father that in sum stated the first RFA was mailed to RAM in April 1994. Appellant, however, provided no documents to substantiate the claim. Appellant did not keep a photocopy of the mailed RFA, there were no contemporaneous business records or notes provided tending to show the first RFA was mailed to RAM in April 1994 and, the mailing was by regular mail, not certified return receipt. There was no evidence that RAM received an RFA mailed to it by Appellant in April 1994.

AO found or concluded that: (1) the evidence in the record was insufficient to prove by a preponderance that Appellant's RFA was first mailed to RAM on or before the July 15, 1994 application filing deadline; (2) the doctrine of equitable tolling did not apply to this case; and (3) Appellant's application for QS (RFA) was not timely filed and his application was properly denied.  To Decision »
95-0134 Halibut/Sablefish IFQ
Issued: 1/26/1999 | Effective: 2/25/1999
Appellant: SATHER, Michael L.
Disposition: Affirmed IAD
Abstract Terms:
    - Quota Share Amount
    - Landings

Abstract:  Appellant's claim for 9,686 additional qualifying pounds of halibut was denied on the grounds that there was no acceptable evidence that the fish were legally landed. RAM found no record of these landings and Appellant acknowledged that state fish tickets or federal catch reports were not prepared or issued for these landings. Appellant produced an affidavit, invoices and copies of checks from the buyer to prove that the fish were legally landed.

AO found or concluded that: (1) Appellant did not record his claimed additional landings of halibut on state fish tickets or federal catch reports; (2) state fish tickets and federal catch reports are the only evidence that can be used to prove legal landings of halibut and sablefish under the IFQ program; (3) the evidence of landings in question is insufficient and unacceptable under the IFQ regulations; and (4) RAM properly denied IFQ credit for the additional qualifying pounds of halibut claimed by Appellant.  To Decision »
95-0125 Halibut/Sablefish IFQ
Issued: 1/26/1999 | Effective: 2/25/1999
Appellant: RUTZEBECK, Del Kirk
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant's application for QS was denied because he was unable to show that he had made legal landings from a vessel owned or leased by him during the QS qualifying period. RAM denied Appellant's application on the grounds that: (1) he was not a "qualified person" under the IFQ regulations; and, (2) RAM does not have the authority to grant IFQ credit for landings that were never made, even though an applicant was prevented from fishing by a medical condition. Appellant claimed to have owned four fishing vessels, however, the only vessel, owned by him during the QS qualifying period with legal landings was leased to another person in 1988 at the time of those landings. Appellant stated he was "injured and hospitalized" in 1988 and 1989, and was "handicapped/unable to run boat-crewed only" in 1990. On appeal, Appellant argued that: (1) he met the definition of "qualified person" and therefore is eligible for QS, because he owned the leased vessel during 1988 when qualifying landings were made from the vessel; and (2) NMFS should consider the "special circumstances" (head injury) that affected his ability to fish during the qualifying years.

AO found or concluded that: (1) 1988 was the only year during the qualifying period in which Appellant owned or leased a vessel from which legal landings of halibut or sablefish were made; (2) all of the qualifying landings made from Appellant's vessel occurred while the vessel was leased to another person; (3) Appellant did not own or lease any other vessels during the qualifying period; (4) Appellant cannot qualify or receive QS on the basis of legal landings never made because of his medical condition; (5) Appellant cannot qualify or receive QS on the basis of legal landings made while his vessel was leased to another person; and (6)Appellant is not a qualified person and is not eligible for an initial issuance of QS.   To Decision »
95-0144 Halibut/Sablefish IFQ
Issued: 1/26/1999 | Effective: 2/25/1999
Appellant: SHADLE, Matt
Disposition: Affirmed IAD
Abstract Terms:
    - Successor-in-Interest

Abstract:  Appellant's application for additional halibut and sablefish QS was denied on the grounds that his claim of ownership of a vessel was untimely and that, for IFQ purposes, he was not a successor-in-interest to the seller of the vessel. Appellant stated that he purchased the vessel at a marshal's sale in 1992 and that he understood that he was receiving all fishing rights as part of the sale." Appellant did not claim any ownership interest in the vessel before that time. Appellant cannot receive credit for qualifying landings made from the vessel unless he is a successor-in-interest to the former owner(s). The successor-in-interest to an individual qualified person (as opposed to a partnership or corporation) can only be the person's estate or heirs. Appellant claimed to be a successor-in-interest, but he did not claim, and there is no evidence in the record, that the prior owner(s) was (are) deceased or that Appellant was an heir or beneficiary of an estate of the owner(s).

AO found that: (1) Appellant made his claim regarding this vessel on his timely filed RFA; (2) Appellant did not abandon his claim regarding this vessel; (3) Appellant did not own or lease this vessel, when it made qualifying landings, at any time from 1984 to 1990; (4) Appellant is not the heir of the former owner(s); (5) Appellant's claim regarding this vessel was timely and considered on appeal; (6) Appellant was not a successor-in-interest to the former owner(s); and (7) Appellant was not eligible to receive an allocation of additional qualifying pounds based on the landings from this vessel.  To Decision »
95-0099 Halibut/Sablefish IFQ
Issued: 1/26/1999 | Effective: 2/25/1999
Appellant: SHARPSTEEN, Chris L.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Landings

Abstract:  Appellant's application for additional QS (for harvested fish on a vessel lost at sea) was denied on the grounds that RAM did not have authority to allocate qualifying pounds that: (1) were not actually landed, even though due to a hardship or special circumstance; and, (2) are not supported by the evidence required by IFQ regulations (in this instance, by State of Alaska fish tickets. On appeal, Appellant argued that the additional pounds were "legally landed" as defined by regulation, and that he should also receive IFQ credit for subsequent landings that he believed would have been made if his vessel had not been lost at sea.

AO found or concluded that: (1) approximately 10,000 pounds of halibut were still aboard Appellant's vessel when it sank, and were never offloaded from the vessel; (2) a "landing" occurs, for purposes of initial issuance of QS, when fish are offloaded from the harvesting vessel; (3) the estimated 10,000 pounds Appellant lost at sea were not landed or legally landed and, therefore, RAM properly denied IFQ credit for these pounds; (4) RAM did not have authority to allocate qualifying pounds that were not based on actual landings made during the base period; and, (5) RAM properly denied credit for pounds that Appellant claimed might have been harvested and landed if not for his vessel sinking.  To Decision »
96-0058 Halibut/Sablefish IFQ
Issued: 1/26/1999 | Effective: 2/25/1999
Appellant: REUTOV, Paul
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant's application for sablefish QS was denied because he could not prove that he had made qualifying landings from a vessel owned or leased by him during the QS qualifying period of 1988-1990. RAM had no record that Appellant owned or leased a vessel that made sablefish landings during the qualifying period. Appellant submitted no proof of landings, nor did he claim that he made qualifying landings. Appellant argued that he should qualify for initial issuance because the Exxon Valdez oil spill prevented him from participating in the sablefish fishery in 1989.

AO found or concluded that: (1) there was no evidence in the record that Appellant owned or leased a vessel that made landings of sablefish during the qualifying period; and, (2) Appellant cannot qualify for initial issuance of QS based on landings he might have made but for the Exxon Valdez oil spill.   To Decision »
96-0002c Halibut/Sablefish IFQ (continued)
Issued: 1/22/1999 | Effective: 2/22/1999
Appellant: MITTENEN, Thomas W
Disposition: IAD affirmed/vacated
Abstract Terms:
    - Eligibility
    - Landings
    - Lease
    - Corporation Changes

Abstract:  Further Action: Motion for Reconsideration by Appellant, 8 Feb 1999; Order granting reconsideration in part, staying decision in part, 12 Feb 1999. The Order granting reconsideration stated that AO would reconsider whether the AO mistakenly concluded that (1) the F/V MARGARET G did not make legal landings of sablefish in 1988; (2) Mr. Mittenen's lease the F/V MARGARET G in 1988 did not need to be addressed; and (3) Mr. Mittenen's claim of the lease of the F/V SALTY III and the F/V PARAGON could not be considered on appeal. The remaining parts of the decision were not stayed or reconsidered. On reconsideration, the AO found that a state fish ticket had been overlooked for a legal landing of halibut from the F/V MARGARET G in 1988, but that Mr. Mittenen could not receive IFQ credit for the landing because the vessel had not filed an intent to operate with the state of Alaska at time of the landing of the fish. The "intent to operate" was required by the state of Alaska, and without it, the halibut landings were not legal landings for purposes of QS. The AO concluded that the AO could not consider new evidence on Reconsideration to show that the F/V MARGARET G made legal landings of sablefish.

AO concluded that, even if he had considered the newly provided evidence, the evidence would not have been sufficient to show that the landings were legal. AO reaffirmed his ruling that it was not necessary to address Mr. Mittenen's claim that he leased the F/V MARGARET G in 1988 because the vessel did not make legal landings of halibut or sablefish in that year. AO also found that Mr. Mittenen was given a reasonable opportunity to claim on his RFA that he leased the F/V SALTY III and the F/V PARAGON. AO reaffirmed his conclusion that Mr. Mittenen could not, on appeal, produce evidence that he leased those vessels.   To Decision »
96-0002 Halibut/Sablefish IFQ
Issued: 1/22/1999 | Effective: 2/22/1999
Appellant: MITTENEN, Thomas W.
Disposition: IAD affirmed/vacated
Abstract Terms:
    - Landings
    - Untimely Claim
    - Corporation Changes
    - Eligibility

Abstract:  Appellant claimed on his RFA that he leased the F/V MARGARET G in 1988. After filing his appeal, he also claimed that he leased two other vessels: the F/V SALTY in 1987 and the F/V PARAGON in 1990. On appeal, Appellant's evidence (a purchase agreement for the sale of the F/V MARGARET G and RAM's landing records) showed that his lease claim for the F/V MARGARET G should have included 1989. As a result, the AO found and concluded that Mr. Mittenen had made an inadvertent mistake when he filed his RFA, and that Mr. Mittenen's lease claim could be considered on appeal as a claim for the lease of the vessel in 1988 and 1989, for purposes of QS. Nevertheless, the AO concluded that Mr. Mittenen's claims of the lease of the F/V SALTY and the F/V PARAGON could not be considered on appeal because the claims had not been made by the 90-day response deadline (required by the IFQ regulations) for providing additional information on an application for QS.

Appellant's affidavit from the owner of the F/V MARGARET G stated that Appellant had leased the F/V MARGARET G between 1988 and 1991. However, several pieces of evidence in the record were inconsistent with that claim and the AO ordered an oral hearing to assess the affidavit's credibility. In light of the evidence presented at the oral hearing, the AO concluded that the affidavit was not credible and could not be considered conclusive evidence of a lease. Mr. Mittenen claimed that the F/V MARGARET G landed sablefish in 1988. The AO found that the landings were not properly recorded or reported to the State of Alaska on state fish tickets, as required by the state's regulations. As a result, the AO concluded that Mr. Mittenen's claimed sablefish landings were not "legal landings," and that Mr. Mittenen could not be given credit for the landings, even if he could prove that he had leased the vessel in 1988. RAM's records showed that the F/V MARGARET G made one halibut landing in 1989, and that Cruzan Fisheries, Inc. owned the vessel at the time of the landing. However, a purchase agreement between the parties showed that Mr. Mittenen owned the vessel at the time of the landing.

AO found that the purchase agreement was superior evidence of ownership. AO concluded that Mr. Mittenen should receive IFQ credit for halibut landed from the vessel. Finally, Mr. Mittenen claimed that he should receive additional IFQ credit for the halibut landed from the F/V MASONIC in 1984. The AO found that Wesfisco, Inc. owned the vessel in 1984, and that Mr. Mittenen was the sole owner of the corporation during that year. Wesfisco, Inc. is currently a dissolved corporation. The AO found that Mr. Mittenen owned Wesfisco, Inc. at the time of dissolution. As such, the AO concluded that Mr. Mittenen is eligible for additional halibut IFQ, as the former owner of the dissolved corporation.

... continued at 96-0002c.  To Decision »
95-0093 Halibut/Sablefish IFQ
Issued: 12/17/1998 | Effective: 1/19/1999
Appellant: JENKIN, James H.
Disposition: Affirmed IAD
Abstract Terms:
    - Landings
    - Quota Share Amount

Abstract:  Appellant's application for an additional 403 qualifying pounds of halibut was denied by RAM because of insufficient evidence. An application was sent to Appellant, which showed that he was eligible for 2,556 total qualifying pounds. Appellant amended the application and claimed 3,399 total qualifying pounds, which is a difference of 843 pounds. With his amended claim, Appellant submitted state fish tickets showing only 440 additional pounds. In July 1996, Appellant was ordered to produce evidence to support his claim to 403 additional qualifying pounds. Appellant did not produce any additional evidence.

AO found or concluded that: (1) there was no evidence in the record that landings of an additional 403 qualifying pounds of halibut were made from a vessel owned or leased by Appellant; and (2) Appellant was not eligible to receive credit for additional halibut landings.  To Decision »
95-0072 Halibut/Sablefish IFQ
Issued: 11/10/1998 | Effective: 12/10/1998
Appellant: WOELKERS, Frederick J.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Partnership
    - Landings

Abstract:  Appellant's application was denied because there was no evidence in the official record that Appellant owned or leased a vessel from which legal landings were made during the QS qualifying period of 1988-1990. RAM records showed the Appellant owning three fishing vessels for various periods of time during the qualifying and base years, but also showed no landings of halibut during those years. On appeal, Appellant claimed to have landed 600 pounds of halibut during the qualifying years but did not produce any evidence of these landings, and there was no such evidence in the record on appeal. Appellant produced evidence of landings for only 1984 and 1986. Appellant did not claim to have leased any of the vessels he owned at various times. A USCG abstract of title for the F/V MOUNTAIN PRINCESS showed Appellant's ownership interest ended when he sold the vessel in 1985.

Appellant also claimed an ownership interest in the same vessel via a dissolved partnership, but did not submit any written partnership agreement, nor did he provide other written evidence of such a partnership. Appellant did submit affidavits that, in sum, tended to show that a partnership agreement was drawn up in the summer of 1985 and that appellant had an option to purchase an interest for two years after his sale of the vessel, or until 1987. There was nothing in the record showing that Appellant ever exercised his option to purchase an interest in the vessel he had sold in 1985. There was no evidence in the record that the allege partnership owned or leased the vessel. There was evidence in the record that the vessel was co-owned by two other persons as tenants-in-common from December 1985 to November 1990, and from November 1990 to December 1990 by yet two other persons.

AO found or concluded that: (1) vessels identified in the Appellant's denied application and appeal cannot form the basis for Appellant to qualify for QS; (2) the F/V MOUNTAIN PRINCESS was owned by two persons other than Appellant as tenants-in-common between December 1985 and November 1990; (3) Appellant did not own or lease a vessel, either individually or as a former partner of a dissolved partnership, from which qualifying halibut landings were made during the QS qualifying period; and (4) Appellant was not a qualified person for QS under the IFQ program.  To Decision »
95-0087 Halibut/Sablefish IFQ
Issued: 11/6/1998 | Effective: 12/7/1998
Appellant: DOUMIT, Mark L.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Successor-in-Interest

Abstract:  Appellant's claim for additional halibut QS, based on his claim that he became a "successor-in-interest" to the prior owner of his vessel, was denied. RAM rejected Appellant's claim and also determined that, in any event, the prior owner was not a "qualified person" and therefore had no interest in QS to which Appellant could have succeeded. Appellant was credited with qualifying pounds of halibut landings when he owned the vessel during the period of 1986-1990, but also claimed credit for additional pounds of landings made from the vessel when it was previously owned by another person. Appellant had no connection with the vessel during the time of those landings when it was owned by another person. The previous owner died in 1985 and his widow sold the vessel to Appellant in December 1985.

AO found or concluded that: (1) the previous owner of the vessel did not own or lease a vessel during a QS qualifying year from which legal landings of halibut or sablefish were made; (2) the previous owner of the vessel was not a "qualified person" for QS, and neither he, nor his estate, nor his widow had any interest in QS to which anyone could be succeed; (3) Appellant was not a "successor-in-interest" to the previous vessel owner; (4) an applicant who merely purchases a vessel cannot receive an initial issuance of QS based on landings made from the vessel by former owners during a period when the applicant did not own or lease the vessel, even if the seller and purchaser agreed that the sale included the fishing history of the vessel; and (5) Appellant was not entitled to credit for landings made from the vessel in 1984 and 1985.  To Decision »
96-0079 Halibut/Sablefish IFQ
Issued: 11/2/1998 | Effective: 12/2/1998
Appellant: DOUBLEDAY, Morgan
Disposition: Affirmed IAD
Abstract Terms:
    - Quota Share Amount
    - Regulations

Abstract:  Appellant requested that he be allowed to fish in 1996 the IFQ he had not fished in 1995, and alternatively that he be allowed to use his 1995 IFQ permits and harvest the unfished amounts in addition to fishing his 1996 IFQ permits. RAM denied Appellant's requests on the grounds that IFQ is calculated annually, and that it is valid only in the year for which it is issued. Appellant also requested that his 1996 IFQ amounts be increased by 10 percent of the IFQ amounts that he did not fish in 1995. RAM granted the requested 10 percent increase to Appellant's 1996 IFQ amounts.

AO found or concluded that: (1) RAM properly calculated the requested 10 percent of Appellant's 1995 IFQ for each regulatory area and credited those amounts to his 1996 IFQ accounts; (2) whatever the reasons that kept Appellant from using most of his 1995 IFQ, the IFQ program regulations do not authorize the carrying over of more than 10 percent underage from one year to the next; (3) Appellant has already received all of the 1995 underage carryover to which he was entitled, and RAM had no authority to grant more; (4) RAM did not have authority to allow Appellant to use his 1995 permits in any other year; and, (5) except as expressly provided otherwise, the formula provided in 50 C.F.R. 679.40(b) and (c) is the exclusive method for calculating the amount of IFQ that may be fished in a given year.  To Decision »
95-0053 Halibut/Sablefish IFQ
Issued: 10/26/1998 | Effective: 11/25/1998
Appellant: SCHMITTOU, Van M.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Landings

Abstract:  Appellant's application for QS was denied because there was no evidence showing Appellant owned or leased a vessel from which legal landings were made during the QS qualifying period. RAM's records did not show that Appellant owned or leased a vessel from which any legal landings were made during the QS qualifying years. On appeal, Appellant claimed that he made legal landings of sablefish in the outer Prince William Sound area that qualify him for QS, and alternatively, that he should be granted QS under a hardship exemption because the Exxon Valdez oil spill prevented him from fishing. Appellant claimed that he was prevented from selling the fish he had landed because no processor would purchase the fish because of the proximity of the oil spill. Appellant stated he chose not to attempt to sell the fish in Kodiak. Appellant stated that: (1) he attempted to sell approximately 7,000 pounds to a tender that did have any sablefish fish tickets; (2) a ticket from an old book of his was used; (3) the fish that were pitched to the tender were subsequently discarded; (4) he kept the pink copy of the fish ticket and was assured that the other part of the ticket would be turned in to ADF&G; (5) he gave his pink copy of the fish ticket to the Exxon Corporation when he filled out a claim for sablefish in 1989. Appellant submitted a photocopy of a fish ticket that he represented as a copy of the 1989 fish ticket, however, the date was not legible. The submitted copy of the 1989 fish ticket states as the area caught: "Outer PWS." On the submitted copy, the blanks for type of fish and pounds were not filled in. "VOID CANNOT PURCHASE" was written across the front of the fish ticket.

The AO noted that landings from harvests in "Outer PWS" were specifically excluded from consideration for QS. The AO noted that fish landed "on or about April 7, 1989" would not have been legally landed because the harvest would not have been in compliance with state regulations, which prohibited fishing in Prince William Sound during that time. AO found that: (1) the fish ticket in support of Appellant's claim of sablefish QS showed that the fish were harvested in outer Prince William Sound; (2) the fish ticket did not have a legible date for the harvest or landing of the fish; (3) the State of Alaska's emergency order for closure of the Prince William Sound fishery was in effect at the time of the harvest of sablefish claimed by Appellant; (4) Appellant did not provide sufficient evidence showing that he made qualifying legal landings; and (5) no QS can be issued for landings not actually made, even if due to hardship such as the Exxon Valdez oil spill.  To Decision »
95-0040 Halibut/Sablefish IFQ
Issued: 10/26/1998 | Effective: 11/25/1998
Appellant: HARTMAN, William R.
Disposition: Affirmed IAD
Abstract Terms:
    - Lease

Abstract:  Appellant's application for QS was denied because he failed to prove he owned or leased a vessel that made legal landings during the QS qualifying period. Appellant submitted: (1) a state fish ticket that showed 2,416 pounds of halibut landed from the vessel August 31, 1990; and, (2) a handwritten statement from the vessel owner which read: "William Hartman fished the F/V CINDY for halibut in the year 1990. Handshake agreement." On January 23, 1996, Appellant stated in a phone conversation with the AO that he would ask the vessel owner for an affidavit of a lease. On June 26, 1996, the AO phoned the appellant to inquire about the affidavit of a lease. The appellant was not in and did not return the call. On September 17, 1996, the AO issued an order to produce additional evidence of a vessel lease. In the order, the AO ordered Appellant to produce an affidavit of the vessel lease, a copy of his federal tax return (Schedule C) for the year in question, and crew affidavits. There was no response from Appellant. On February 29, 1997, Appellant was informed in writing that the deadline for submittal of additional information was March 31, 1997. Again, there was no response from Appellant. An affidavit of lease was never received.

AO found or concluded that: (1) Appellant's evidence was insufficient to show a vessel lease from the owner during the QS qualifying period; and, (2) Appellant did not lease the F/V CINDY during the QS qualifying period.  To Decision »
96-0009 Groundfish/Crab Moratorium
Issued: 10/21/1998 | Effective: 10/21/1998
Appellant: YUKON QUEEN FISHERIES LLP (Decision on Review)
Disposition: Affirmed
Abstract Terms:
    - Eligibility
    - Transfer

Abstract:  Abstract: RAM denied Appellant's application for a vessel moratorium qualification and permit resulting from the fishing history of the F/V YUKON QUEEN. The IAD stated that Appellant did not own either the vessel or the rights flowing from the fishing history of the vessel when it applied for a permit. The IAD did not recognize the contract between Appellant and SeaFirst National Bank which provided that appellant retained the rights to the fishing history of the vessel because the parties contracted before August 20, 1995, the publication date of the final rule establishing the Moratorium Program.

AO found: [1] private parties can contract to sever ownership of the moratorium qualification of a vessel from ownership of the vessel; [2] the general rule is that private parties can legally contract with respect to future rights, interests, property or licenses that are not yet in existence; [3] the regulations for the Moratorium Program do not prohibit NMFS from recognizing contracts for transfer of a vessel's moratorium qualification rights of a vessel made before the regulations for the Moratorium Program were published; [4] Appellant and SeaFirst entered into a valid contract whereby appellant retained the moratorium qualification rights of the F/V YUKON Queen when it sold the vessel to SeaFirst through the US Marshal's sale.  To Decision »
95-0103 Halibut/Sablefish IFQ
Issued: 9/30/1998 | Effective: 10/30/1998
Appellant: KVALE, Jack C.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Landings

Abstract:  Appellant's application for halibut QS was denied because of the absence of proof that he made legal landings during the QS qualifying period. Appellant claimed on appeal that legal landings were made during the QS qualifying period, but he admitted that the fish were not sold, but rather were eaten or given away. Appellant never claimed, nor did he provide any proof, that any of his allege landings were recorded on state fish tickets or federal catch reports.

AO found or concluded that: (1) Appellant did not record his claimed halibut landings on state fish tickets or federal catch reports; (2) state fish tickets and federal catch reports are the only evidence that can be used to prove legal landings of halibut and sablefish; (3) Appellant made no legal landings during the QS qualifying years; and, (4) Appellant was not qualified for initial QS issuance.  To Decision »
95-0026 Halibut/Sablefish IFQ
Issued: 9/30/1998 | Effective: 10/30/1998
Appellant: CORAZZA, Sonya M.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Landings

Abstract:  Appellant's application for QS was denied because of insufficient evidence of legal landings of halibut during the QS qualifying period. Appellant asserted she made landings in 1989 during cleanup operations for the Exxon Valdez oil spill, however, admitted that the landings were not recorded on a state fish ticket. Appellant claimed no fish ticket was required because she gave the fish away to family and crew for personal consumption, and because it was not "common practice" in 1989 to record halibut caught for personal use on a state fish ticket. Appellant stated that oil spill clean-up activities prevented her from leaving the area to sell the fish. Appellant submitted an affidavit by her husband and a video that purported to show the landing of the halibut in question. Appellant submitted no evidence of other landings during the QS qualifying period.

AO found or concluded that: (1) Appellant did not record the claimed halibut landings on a state fish ticket or federal catch report; (2) state fish tickets and federal catch reports are the only evidence that may be used to prove legal landings; (3) Appellant did not make legal landings that qualified her for QS issuance; and, (4) Appellant is not a qualified person and was not eligible for initial QS issuance.  To Decision »
95-0126 Halibut/Sablefish IFQ
Issued: 9/29/1998 | Effective: 10/29/1998
Appellant: REISDORF, John T.
Disposition: Affirmed IAD
Abstract Terms:
    - Vessel

Abstract:  RAM revoked half of Appellant's QS because of evidence that showed he had only a 50 percent ownership interest in the vessel from which the qualifying landings were made. A Coast Guard abstract of title showed that the vessel was co-owned since 1979. Appellant asserted that the other owner ended their fishing partnership in 1979 and that in 1995 the other owner "signed off the title...with an extensive hold-harmless clause...." Appellant submitted no documents of sale or title concerning ownership of the vessel during the QS qualifying and base years. Appellant did not submit the allege release of title and hold-harmless agreement. The other owner submitted an application for QS based on his 50 percent ownership of the vessel, but RAM rejected his application as untimely, and that determination was affirmed by this office.

AO found or concluded that: (1) Appellant never owned more than a 50 percent interest in the vessel during the QS qualifying and base years; (2) in the face of an abstract of title showing co-owners still holding interest in a vessel, evidence that a co-owner has abandoned a vessel, or has assumed full responsibility for a vessel, is not sufficient to prove that vessel ownership has changed; (3) a transfer of ownership interest in 1995, by itself, would effect the initial issuance of QS; and, (3) RAM was correct in revoking 50 percent of the QS that had been issued to Appellant.

Further action: Motion for Reconsideration was denied October 22, 1998.  To Decision »
95-0055 Sablefish/Halibut IFQ
Issued: 9/22/1998 | Effective: 10/21/1998
Appellant: OCEAN RESOURCES, INC
Disposition: Affirmed IAD
Abstract Terms:
    - Due Process
    - Regulations
    - Eligibility

Abstract:  Appellant's application for sablefish QS was denied because it had not harvested sablefish with fixed gear during the QS qualifying period of 1988-1990. Appellant had made landings of sablefish during the qualifying period but official records showed that Appellant had harvested the fish with trawl gear. Appellant's representative stated to the AO that the fish in question had been caught with trawl gear. Appellant argued that the regulations, which require that sablefish must be harvested with fixed gear, are unconstitutional. Appellant claimed in its appeal that the IFQ regulations as applied here violate the Due Process Clause of the Fifth Amendment to the U.S. Constitution.

AO found or concluded that: (1) Appellant did not harvest sablefish with fixed gear during the QS qualifying period; (2) Appellant's challenge to the legality of the IFQ program regulations was not within the purview of this office; and (3) Appellant was not a "qualified person" for the purpose of sablefish QS issuance.  To Decision »
96-0009 Groundfish/Crab Moratorium
Issued: 9/17/1998 | Effective: 10/19/1998
Appellant: YUKON QUEEN FISHERIES LLP
Disposition: Vacated IAD
Abstract Terms:
    - Eligibility
    - Transfer

Abstract:  Abstract: RAM denied Appellant's application for a vessel moratorium qualification and permit resulting from the fishing history of the F/V YUKON QUEEN. The IAD stated that Appellant did not own either the vessel or the rights flowing from the fishing history of the vessel when it applied for a permit. The IAD did not recognize the contract between Appellant and SeaFirst National Bank which provided that appellant retained the rights to the fishing history of the vessel because the parties contracted before August 20, 1995, the publication date of the final rule establishing the Moratorium Program.

AO found: [1] private parties can contract to sever ownership of the moratorium qualification of a vessel from ownership of the vessel; [2] the general rule is that private parties can legally contract with respect to future rights, interests, property or licenses that are not yet in existence; [3] the regulations for the Moratorium Program do not prohibit NMFS from recognizing contracts for transfer of a vessel's moratorium qualification rights of a vessel made before the regulations for the Moratorium Program were published; [4] Appellant and SeaFirst entered into a valid contract whereby appellant retained the moratorium qualification rights of the F/V YUKON Queen when it sold the vessel to SeaFirst through the US Marshal's sale.   To Decision »
95-0113R Halibut/Sablefish IFQ
Issued: 9/15/1998 | Effective: 10/15/1998
Appellant: MAPES, Norman (Reconsideration)
Disposition: Affirmed
Abstract Terms:
    - Eligibility

Abstract:  Appellant's application was denied because he did not have sufficient proof that he had made a legal landing of halibut or sablefish from a vessel owned or leased by him during the QS qualifying years of 1988-1990. Appellant provided no state fish tickets for his claimed landings, nor did he claim that any fish tickets ever existed. Neither RAM, the State of Alaska nor the IPHC had any record of Appellant's claimed landings. Appellant submitted receipts for halibut sold to retail businesses and a written list of estimated pounds of halibut he claimed to have sold retail, kept for himself, or gave to his family. Appellant argued that: (1) his past and present participation in the halibut fisheries qualify him for QS; (2) it is arbitrary to limit proof of legal landings to state fish tickets; and, (3) the IFQ program violates common law, the 9th and 10th Amendments to the U.S. Constitution, and the Magnuson-Stevens Act.

AO found that: (1) Appellant did not record on state fish tickets (or report to the State of Alaska via state fish tickets) the halibut he claimed to have sold to retail businesses, delivered to his family or kept for himself; (2) there was no evidence in the record on appeal that halibut was offloaded from a vessel owned or leased by Appellant during the QS qualifying years; and, (3) there was no evidence in the record on appeal that halibut was harvested by Appellant with fixed gear, during a legal commercial opening in an IFQ area, by a vessel owned or leased by Appellant during the QS qualifying years. AO concluded that: (1) Appellant was required by state law to record his claimed landings of fish on a state fish ticket, and to report those landings to the State of Alaska on a state fish ticket; (2) Appellant did not make any legal landings of halibut or sablefish from a vessel owned or leased by him during the QS qualifying period; and, (3) challenges to the legality or constitutionality of the IFQ regulations are not within this office's purview.

Further action: A Motion for Reconsideration was granted and a Decision on Reconsideration was published September 15, 1998 affirming the decision of August 26, 1998.  To Decision »
95-0019 Halibut/Sablefish IFQ
Issued: 9/8/1998 | Effective: 10/8/1998
Appellant: JUBILEE FISHERIES
Disposition: Affirmed IAD
Abstract Terms:
    - Quota Share Amount
    - Regulations

Abstract:  Appellant was denied a portion of the total poundage claimed as sablefish QS because the denied poundage was not based on the Appellant's best five of six years of landings during the sablefish QS base period of 1985-1990. The issue on appeal was must RAM use the best five years of landings for both of applicant's vessels combined, or can RAM credit each vessel's landings separately if that would be more beneficial to an applicant.

AO found or concluded that: (1) although the IFQ program counts the pounds landed from each vessel, the credit for those pounds goes to the person who owned or leased the vessel at the time of the landings; (2) RAM calculates sablefish QS for each applicant by adding up that person's highest total landings of sablefish; (3) RAM calculated Appellant's QS by combining the landings from both of Appellant's vessel for each year; (4) using Appellant's preferred alternative method of calculating QS would have increased the total qualifying pounds of sablefish landings by 2 percent; (5) IFQ regulations do not authorize RAM to calculate QS according to the method requested by Appellant; (6) IFQ regulations provide that QS is calculated according to a qualified person's best five years of landings, not the best five years of landings for each vessel; (7) RAM's reading of 50 C.F.R. 679.40(a)(4)(ii) is the correct and only permissible reading; and, (8) RAM does not have the discretion to use a different method of calculating QS on a case-by-case basis in order to maximize each applicant's QS amount.  To Decision »
95-0023 Halibut/Sablefish IFQ
Issued: 9/3/1998 | Effective: 10/5/1998
Appellant: SELFRIDGE, Patrick
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Regulations

Abstract:  Appellant fished commercially for many years for halibut and sablefish prior to the loss of his vessel on April 16, 1988. He made sablefish landings in early 1988, and halibut landings from 1984-1987. He made no halibut landings during the QS qualifying years of 1988-1990. Appellant's application for sablefish QS was approved, but his application for halibut QS was rejected because of the absence of halibut landings during the QS qualifying period. Appellant claimed that he would have made halibut landings during the qualifying period if not for the loss of his vessel. Appellant claimed halibut QS on the basis that: (1) he lost his vessel and made good faith efforts to replace it; (2) the "IFQ drafting team" orally assured him that he would be awarded halibut QS; and, (3) under the IFQ regulations, an qualified applicant for sablefish QS is automatically qualified to receive credit for halibut landings made only during the QS base years.

AO found or concluded that (1) Appellant made no halibut landings during a QS qualifying year; (2) NMFS' interpretive rule was consistent with RAM's long- standing practice to require applicants for QS to qualify separately for halibut QS and sablefish QS; (3) QS may not be issued on the basis of hardship or unavoidable circumstances; (4) the doctrine of equitable estoppel against the government did not apply to this case; (5) this office, and NMFS generally, are bound by the language of duly promulgated regulations adopted by the Secretary of Commerce, not by oral assurances allegedly made by drafters of the IFQ regulations before creation of the IFQ program; (6) QS may not be issued to the Appellant based on alleged oral assurances by the drafters of the IFQ regulations; (7) NMFS' interpretive rule requiring separate qualifications for halibut QS and sablefish QS may be applied retroactively; and (8) Appellant was not qualified for halibut QS, even though he was qualified for sablefish QS.

Further action: Appellant was awarded halibut QS as a result of the Ninth U.S. Circuit Court of Appeals decision in Wards Cove Packing Corp. v. National Marine Fisheries Service, 307 F.3d 1214 (CA9, 2002). [See abstract to Wards Cove Packing, Appeal No. 96-0068 (June 8, 2000).]  To Decision »
95-0021 Halibut/Sablefish IFQ
Issued: 9/2/1998 | Effective: 10/2/1998
Appellant: REBISCHKE, Sylvester
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant's application was denied because there was no evidence in the official record that he had made any landings during the QS qualifying years. On appeal, the Appellant admitted that he did not fish at all during the QS qualifying period, but asked for QS based on an estimate of the landings he would have made if not for inclement weather.

AO noted that there were prior rulings that the IFQ regulations require QS to be based on actual, not hypothetical, landings. AO noted that the NPFMC rejected a proposal to create a "hardship" exception in 1994.

AO found that Appellant did not fish or make landings during the QS qualifying period, and that the Appellant could not qualify for QS based on landings he might have made but for inclement weather.  To Decision »
95-0038 Halibut/Sablefish IFQ
Issued: 9/1/1998 | Effective: 10/1/1998
Appellant: SKUSE, Donald H.
Disposition: Affirmed IAD
Abstract Terms:
    - Landings

Abstract:  Appellant's application for QS was denied because of a lack of evidence that the fish were legally landed. Appellant claimed QS based on landings made from at least three vessels and as a result of his partnership with the owner of the F/V GERLIN. Appellant submitted no state fish tickets nor a record of the landings. Appellant claimed that one half of the landings were sold to canneries and recorded on state fish tickets, but that the fish tickets were lost or destroyed. Appellant claimed that there never were fish tickets for the other half of the landings, which were sold on the street. In lieu of state fish tickets, Appellant submitted: (1) his federal tax returns; (2) a statement from one buyer for prices paid per pound for halibut from 1985 1990 (the buyer did not provide copies of state fish tickets); (3) statements from witnesses attesting to Appellant's lease of the vessel F/V RAINMAKER, sales of fish and income from sales of fish; and, (4) as proof of his partnership with the owner of the F/V GERLIN, his (Appellant's) log book, and a state fish ticket showing landings from the vessel. Appellant stated that all of his books and papers were seized by the police in "unrelated incident" and when returned may not have included all the seized records.

Appellant stated that the fish tickets for landings in question may have still been in the custody of the police. At hearing, an Alaska State Trooper testified that items were seized from Appellant, including some fishing documents, but that an inventory did not list any fish tickets, and that he could not specifically recall any fish tickets being seized.

AO found or concluded that: (1) state fish tickets for the landings claimed were not properly submitted; (2) another person owned the vessel F/V GERLIN during the period of the Appellant's claimed landings from the vessel; (3) the F/V GERLIN was not owned or leased by the Parish Skuse partnership at time the landings in question were made; (4) landings for which the Appellant did not submit state fish tickets were not "legal landings" (5) where the Appellant did not properly submit fish tickets to the state, as required by state regulations in effect at the time of the landings, other evidence introduced that the landings were made was not relevant and admissible; and, (6) Appellant could not receive IFQ credit for landings made from the F/V Gerlin based on an allege partnership, because the vessel was not owned or leased by the partnership at the time of the landings.   To Decision »
95-0014 Halibut/Sablefish IFQ
Issued: 9/1/1998 | Effective: 10/1/1998
Appellant: HALL, David L.
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Appellant's application for QS was denied because it was not timely filed by the July 15, 1994 deadline. Appellant filed his application on January 30, 1995. Appellant did not dispute that he missed the filing deadline but argued on appeal that his lateness should be excused because he moved from Alaska in December 1987 and "eventually" in a "small, remote and rural community" that "has no access to electricity, running water, telephone, newspaper delivery or television communications available." Appellant stated that, as a result of his isolation, his application was late because he did not learn of the IFQ program and its filing requirements until January 1995.

AO found or concluded that: (1) Appellant voluntarily absented himself from Alaska and from access to the mainstream of usual information sources; (2) Appellant did not show any extraordinary circumstances beyond his control that prevented him from timely filing his application for QS; (3) the doctrine of equitable tolling does not apply to this case; (4) actual, individualized notice to the Appellant of the IFQ program and application filing deadline was not required; and, Appellant's application for QS was not timely filed.  To Decision »
95-0115 Halibut/Sablefish IFQ
Issued: 8/31/1998 | Effective: 10/1/1998
Appellant: LEACH, Leonard (Decision on Review)
Disposition: Affirmed
Abstract Terms:

Abstract:    To Decision »
95-0113 Halibut/Sablefish IFQ
Issued: 8/26/1998 | Effective: 10/15/1998
Appellant: MAPES, Norman
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant's application was denied because he did not have sufficient proof that he had made a legal landing of halibut or sablefish from a vessel owned or leased by him during the QS qualifying years of 1988-1990. Appellant provided no state fish tickets for his claimed landings, nor did he claim that any fish tickets ever existed. Neither RAM, the State of Alaska nor the IPHC had any record of Appellant's claimed landings. Appellant submitted receipts for halibut sold to retail businesses and a written list of estimated pounds of halibut he claimed to have sold retail, kept for himself, or gave to his family. Appellant argued that: (1) his past and present participation in the halibut fisheries qualify him for QS; (2) it is arbitrary to limit proof of legal landings to state fish tickets; and, (3) the IFQ program violates common law, the 9th and 10th Amendments to the U.S. Constitution, and the Magnuson-Stevens Act.

AO found that: (1) Appellant did not record on state fish tickets (or report to the State of Alaska via state fish tickets) the halibut he claimed to have sold to retail businesses, delivered to his family or kept for himself; (2) there was no evidence in the record on appeal that halibut was offloaded from a vessel owned or leased by Appellant during the QS qualifying years; and, (3) there was no evidence in the record on appeal that halibut was harvested by Appellant with fixed gear, during a legal commercial opening in an IFQ area, by a vessel owned or leased by Appellant during the QS qualifying years. AO concluded that: (1) Appellant was required by state law to record his claimed landings of fish on a state fish ticket, and to report those landings to the State of Alaska on a state fish ticket; (2) Appellant did not make any legal landings of halibut or sablefish from a vessel owned or leased by him during the QS qualifying period; and, (3) challenges to the legality or constitutionality of the IFQ regulations are not within this office's purview.

Further action: A Motion for Reconsideration was granted and a Decision on Reconsideration was published September 15, 1998 affirming the decision of August 26, 1998.  To Decision »
95-0141R Halibut/Sablefish IFQ
Issued: 8/24/1998 | Effective: 9/23/1998
Appellant: S.Y.B. Fisheries (Reconsideration)
Disposition: IAD Vacated
Abstract Terms:

Abstract:    To Decision »
95-0115R Halibut/Sablefish IFQ
Issued: 8/3/1998 | Effective: 9/2/1998
Appellant: LEACH, Leonard (Reconsideration)
Disposition: Reconsideration Denied
Abstract Terms:

Abstract:    To Decision »
95-0088 Halibut/Sablefish IFQ
Issued: 7/29/1998 | Effective: 8/28/1998
Appellant: THOMASSEN, Jay R. v. MECHANICS SERVICE
Disposition: Affirmed IAD
Abstract Terms:
    - Lease

Abstract:  Abstract: Appellant claimed he leased the F/V MISS CONCEPTION from Mechanics Service, Inc. (MSI) from March 18, 1990 to June 20, 1990 and was therefore entitled to the Quota Share (QS) resulting from the 121,409 pounds of halibut and the 169,908 pounds of sablefish landed from the vessel during that time. MSI owned the vessel and claimed that it hired Jay Thomassen to skipper the vessel but did not lease the vessel to him. The parties disputed the meaning of, and the circumstances surrounding, a written agreement they signed. The IAD concluded that Thomassen was a hired skipper, not a lessee of the vessel, and that MSI, as owner of the vessel, was entitled to the QS resulting from the vessel's landings. Thomassen appealed the decision to the Office of Administrative Appeals (OAA).

AO concluded that the written Agreement was not invalid because of duress or coercion. AO further concluded that the written agreement, by itself, did not constitute a written lease in accord with 50 C.F.R. 679.40(a)(3)(iii) because it did not identify the period of time during which it was in effect. AO then examined all the evidence in the record, including the parties' written Agreement, in light of seven factors established by OAA precedent to determine whether a vessel owner had leased a vessel: [1] the parties' characterization of their business arrangement; [2] whether and to what extent the claimed lessee had possession and command of the vessel and control of navigation of the vessel; [3] whether the claimed lessee directed fishing operations of the vessel; [4] whether the claimed lessee had the right to hire, fire, and pay the crew; [5] whether the claimed lessee was responsible for the operating expenses of the vessel; [6] whether the claimed lessee treated the fishing operations in which the vessel was used as his/her own business for federal income tax and other purposes; [7] whether the claimed lease had a set or guaranteed term. The decision also considered evidence offered by Thomassen on an eighth factor, preseason preparation work. AO found that each of the factors either supported the conclusion that Thomassen did not lease the vessel or was inconclusive on whether a lease existed. Overall, AO found the evidence overwhelming that Thomassen did not lease the vessel.   To Decision »
95-0016 Halibut/Sablefish IFQ
Issued: 6/26/1998 | Effective: 7/27/1998
Appellant: GILBERT, Scott M.
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Appellant's application for QS was denied because his Request for Application (RFA) was not filed until February 17, 1995, seven months after the deadline of July 15, 1994. Appellant's RFA was date-stamped February 17, 1995 over signature dated January 6, 1994. Appellant claimed that he had originally mailed his RFA on January 12, 1994, and that this RFA was returned to him in March or April 1994 with a handwritten post-it note from RAM stating that his RFA would not be processed without a vessel registration number. RAM had no record of receiving or returning an RFA from Appellant prior to the application deadline. A RAM representative testified that: (1) it was not RAM's practice to return an RFA to an applicant, even without a vessel registration number; (2) every piece of mail received by RAM is routinely opened, date-stamped and copied upon receipt, with both a copy and the original filed; and, (3)written correspondence with an applicant is done via letter, not a handwritten post-it note, with a copy of the letter placed in the applicant's file. The RAM representative testified that RAM's procedures were set up in December 1993 and formalized in a written memorandum on April 7, 1994. The Appellant testified that he went into the RAM office at Juneau, Alaska on or about March 27, 1994, to inquire about his RFA, and was told there was no record. The Appellant testified he received a second RFA from RAM, and a vessel registration number for his new vessel in June 1994. The Appellant could not explain why he did not return his RFA before the deadline in July 1994 after obtaining a new vessel registration number, when he knew prior to the deadline that RAM had no record of him filing previously.

AO found that the Appellant had no evidence to support his claim other than his bald assertion. AO found that, absent proof to the contrary, it was more likely than not that RAM's customary practices were followed in this instance. AO found by a preponderance of the evidence that Appellant did not timely file an RFA by the application deadline. Appellant presented no evidence that the doctrine of equitable tolling should apply to the circumstances of his filing.  To Decision »
95-0011 Halibut/Sablefish IFQ
Issued: 6/23/1998 | Effective: 7/23/1998
Appellant: BROWN, Wayne B.
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Appellant's application for QS was denied because his application was not filed by the July 15, 1994 deadline. Also, official records show no landings of halibut or sablefish were made from any vessel owned or leased by Appellant during the QS qualifying period. Appellant's application was received February 14, 1995. Appellant stated that, after his wife left him, he underwent treatment for depression from September 1993 until his wife returned in April of 1994. Appellant stated that he did not send in his application prior to the deadline because he was "in the middle of a divorce" and the RFA got "lost in the shuffle."

AO found that Appellant's application for QS was not timely filed. AO found that equitable tolling of the application deadline did not apply in this case because Appellant's formal treatment for depression ended, and his wife returned to the marriage, nearly three months before the application deadline. AO found that, since the Appellant's application was not timely filed, there was no need to examine whether or not Appellant would have qualified for QS in the absence of evidence of legal landings during the QS qualifying period.  To Decision »
95-0029 Halibut/Sablefish IFQ
Issued: 6/12/1998 | Effective: 7/13/1998
Appellant: TOMINGAS, Henry L.
Disposition: Affirmed IAD
Abstract Terms:
    - Lease

Abstract:  Appellant's application was denied because he did not provide evidence that he owned or leased a vessel from which legal landings were made during a QS qualifying year. Appellant claimed that he did not lease the F/V ROBBY to Mr. Earle during 1988, and that he did lease the F/V LINDA from Mr. Renschler during the QS qualifying period. Mr. Earle and Mr. Renschler were joined as Respondents in Appellant's appeal and were afforded the opportunity to file statements in opposition. No statements in opposition were filed.

AO found that: (1) a signed, dated, sworn and notarized statement of Appellant and Mr. Earle attested to a lease of the F/V ROBBY by Mr. Earle during the 1988 halibut season; (2) the notarized statement of Appellant and Mr. Earle was a valid document, free of fraud, duress, coercion, incapacity or mistake; (3) Appellant produced insufficient evidence, outside the bare assertions in his RFA and in his appeal, to support his claim that he leased the F/V LINDA D from Mr. Renschler; and, (4) Appellant was afforded at least three opportunities to provide evidence of a lease of the F/V LINDA D, and failed to do so.  To Decision »
95-0115 Halibut/Sablefish IFQ
Issued: 5/6/1998 | Effective: 9/2/1998
Appellant: LEACH, Leonard
Disposition: Affirmed IAD
Abstract Terms:
    - Landings
    - Quota Share Amount

Abstract:  Appellant's application for additional halibut QS was denied by RAM because he did not have legal proof that he had landed the claimed fish, and because RAM did not have authority to issue QS for landings never made on the basis of hardship or special circumstances. The issue on appeal was whether Appellant should receive additional QS for halibut harvested aboard a vessel lost at sea in 1988 and never landed.

The AO found or concluded that: (1) Appellant's estimated 20,000-plus pounds of halibut, that he claimed were lost with the sinking of his vessel in 1988, were never landed, i.e. offloaded, from the vessel; (2) Appellant's fish were not "legally landed" because they were not landed; and, (3) halibut that were legally harvested, but not legally landed, cannot be credited for IFQ purposes in spite of hardship or unavoidable circumstances that prevented the landing of the fish.

Further action: Motion for reconsideration denied by order dated 03 August 1998. Decision reviewed by Regional Administrator and affirmed on 31 August 1998.  To Decision »
97-0001 Halibut/Sablefish IFQ
Issued: 4/9/1998 | Effective: 5/8/1998
Appellant: HARDER, Ole G.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Lease
    - Partnership

Abstract:  Mr. Harder (vessel owner) and Mr. David Vohs entered into a written agreement for the lease of the F/V PACIFIC LADY. The vessel sank about seven months later. Mr. Vohs, as lessee, was awarded the QS for the sablefish landings made during the period of the lease. Mr. Harder claimed Mr. Vohs never paid him for the lease of the vessel, and that it would be unfair under the Magnuson-Stevens Act for Mr. Vohs to receive QS for the unpaid portion of the lease. Mr. Harder claimed, instead, that he should receive the QS for the unpaid portion of the lease. The AO ruled against Mr. Harder because the IFQ regulations prohibit the owner of a leased vessel from receiving QS for the landings made during the lease of the vessel, and because an appeals officer must presume the validity of the IFQ regulations.

Alternatively, Mr. Harder contended that he, as the vessel's owner, should receive all of the QS associated with the landings of the vessel because the lease was materially breached and nullified by Mr. Vohs' failure to pay for the lease of the vessel. The AO concluded that even if the lease had been breached, the lease was in effect at the time of the vessel's landings and, therefore, constituted conclusive evidence of the existence of a vessel lease between the parties. The AO concluded that Mr. Vohs was eligible as the lessee for the QS associated with the landings made under the lease.

Mr. Harder also claimed additional QS, based on a de facto partnership with Mr. Vohs. Mr. Harder did not specify whether the de facto partnership leased the vessel from him. Nor did he specify the percentage of his ownership of the partnership. AO ruled against Mr. Harder because even if a de facto partnership existed between Mr. Harder and Mr. Vohs, there was no proof that the vessel was owned or leased by the partnership.   To Decision »
95-0141 Halibut/Sablefish IFQ
Issued: 4/7/1998 | Effective: 5/7/1998
Appellant: S.Y.B. FISHERIES
Disposition: Affirmed IAD
Abstract Terms:
    - Quota Share Amount
    - Eligibility
    - Successor-in-Interest
    - Untimely Applications and Appeals
    - Partnership

Abstract:  Appellant did not file an appeal until five months after the award of its QS. In Tiger, Inc., we concluded that the award of QS is an appealable IAD. Because the IFQ regulations provide that an appeal must be filed within 60 days of an IAD, SYB's appeal was not timely filed.

Appellant had submitted four fish tickets as proof of additional sablefish QS. Two of the fish tickets would have resulted in the allocation of additional qualifying pounds, if the appeal had been timely filed. One fish ticket, which was deficient because it lacked the statistical area of the harvest of the fish, was cured by the pilot log of the vessel. The other fish ticket was valid on its face, and contained all of the necessary information for proof of QS. Both of the fish tickets had not been turned in to the state by the processor (through no fault of Appellant).

Appellant would not have been allocated the additional qualifying pounds because it did not own the F/V BALTIC SEA at the time of the landings. The vessel's abstract of title, and supporting documentation, shows the vessel was owned by four individuals, the former partners of the previously dissolved "old" SYB partnership. Because one of the individual owners never applied for QS (Mr. Rockom), only three quarters of the additional qualifying pounds would have been allocated, 25 percent each, to the other three individuals. Mr. Rockom's share would have been unclaimed.

The initial issuance of QS was not at issue on appeal. However, because it became apparent during the appeals process that the vessel was owned by the individual partners of the old and current SYB, the appeals office has notified RAM in a separate memorandum that SYB should not have been awarded Mr. Rockom's share of QS. Mr. Rockom's 25 percent share should remain unclaimed (and non allocable) because he never applied for QS.

Further action: Decision on reconsideration issued 24 August 1998; effective 23 September 1998. On reconsideration the AO reversed conclusion number 1 and concluded that: SYB's appeal was timely filed; the decision did not deny Mr. Rockom's right to transfer his partnership interest in QS in violation of the Magnuson Stevens Act; Mr. McMillan is not the successor in interest to Mr. Rockom for the purpose of applying for the initial issuance of QS; and SYB has no standing to assert Mr. Rockom's individual rights. The decision on reconsideration also vacated that portion of the IAD that relates to SYB's claim for Mr. Rockom's 1988 landings, and ordered RAM to issue allocate 75 percent of two sablefish landings among Mr. Hutchens, Mr. Copeland, and Mr. Carlson.   To Decision »
95-0045 Halibut/Sablefish IFQ
Issued: 3/10/1998 | Effective: 4/9/1998
Appellant: PIPKIN, John D.
Disposition: Affirmed IAD's
Abstract Terms:
    - Eligibility

Abstract:  Appellant's claim was denied because he had not proven that he had owned or leased a vessel that made legal landings of halibut or sablefish during a QS qualifying year. Appellant argued on appeal that he would have landed halibut or sablefish during the QS qualifying period but for bad weather in 1988, the Exxon Valdez oil spill in 1989, and the bioremediation of his village's shorelines in 1990. AO noted that this office has ruled in several decisions that QS may only be issued on the basis of actual, not hypothetical landings, and that the NPFMC expressly rejected hardship or unavoidable circumstance as a basis for issuing QS. AO concluded that QS may not be issued to Appellant based on his estimated landings.

Further action: Motion for reconsideration denied by order dated 26 March 1998.  To Decision »
95-0032 Halibut/Sablefish IFQ
Issued: 2/25/1998 | Effective: 3/27/1998
Appellant: COISMAN, Donald L. (Estate)
Disposition: Affirmed IAD
Abstract Terms:
    - Estates
    - Lease

Abstract:  The Appellant claimed that the deceased, Don Coisman, leased the F/V YANKEE CLIPPER in 1989 and 1990. Bob Henry, the registered owner of the vessel, testified that he had a "triple-net lease" arrangement with Don Coisman for the period of 1989 and 1990, and that if Mr. Coisman were still alive, he [Mr. Henry] would sign an affidavit acknowledging such. He further stated that he had leased the vessel to Don Coisman for the clean up of the EXXON VALDEZ oil spill in 1989. The AO concluded that Mr. Coisman had not leased the vessel, but noted that if he had been alive and able to testify, the result may have been different. The AO found that Mr. Henry indirectly shared trip expenses with Mr. Coisman, and was at risk for expenses in the event of a "hole" trip.

AO concluded that the evidence, on balance, showed that the arrangement was more consistent of a partnership or joint venture than with a lease.

Further action: Dan Coisman filed a motion for reconsideration. The motion was denied because it raised only issues of law or fact that had been addressed in the appeals decision.   To Decision »
95-0119 Halibut/Sablefish IFQ
Issued: 12/18/1997 | Effective: 2/20/1998
Appellant: BAIRD, Wesley G.
Disposition: Affirmed IAD
Abstract Terms:
    - Landings

Abstract:  After receiving quota shares, the Appellant claimed that he was entitled to credit for additional landings. RAM denied the claim for additional pounds for lack of evidence. On appeal, Appellant submitted 12 fish tickets, a log book, and tax records to prove his claim. The AO found that Appellant had already received credit for all the landings on the fish tickets. The AO found the log book and tax records were insufficient evidence to establish that any additional pounds were legally harvested and landed.

Further action: Appellant submitted and withdrew a motion to reconsider. As a result, the effective date of the decision was delayed.   To Decision »
95-0068 Halibut/Sablefish IFQ
Issued: 12/15/1997 | Effective: 1/14/1998
Appellant: NOLAND, Harry A.
Disposition: Vacated IAD
Abstract Terms:
    - Untimely Claim
    - Vessel

Abstract:  Appellant applied for quota shares and RAM denied his application on the grounds that he did not own a vessel from which qualifying landings were made. On appeal, Appellant for the first time claimed ownership of another vessel, which did make qualifying landings. Normally, Appellant's claim would not be considered on appeal because it had not been timely raised before RAM. The AO found, however, that RAM had had in its possession data showing Appellant's ownership of the vessel during the period in question. The AO concluded that 50 C.F.R. sec. 679.40(a)(6)(i) required RAM to provide on the application form that it sent to Appellant all data "available to the Regional Administrator" at the time an application was requested, and that RAM violated the regulation by not providing the data regarding Appellant's ownership of that particular vessel.

AO concluded that Appellant's claim of ownership of the vessel was, as a matter of law, timely made and would be considered on appeal. Based on a U.S. Coast Guard abstract of title, the AO found that Appellant was the sole owner of the vessel during the time in question, and ordered RAM to give Appellant credit for the vessel's landings and issue the resulting QS and IFQ.  To Decision »
95-0112 Halibut/Sablefish IFQ
Issued: 12/4/1997 | Effective: 1/5/1998
Appellant: KUZMIN, Vasily V.
Disposition: Affirmed IAD
Abstract Terms:
    - Vessel

Abstract:  In his last year of fishing, 1991, Appellant landed halibut from one C category vessel and two D category vessels. RAM assigned vessel categories to Appellant's QS in proportion to the amount of landings made from vessels in each category. Appellant sought to have all his halibut quota shares reclassified from category C to category D. RAM denied his claim and the AO affirmed, concluding that RAM had correctly applied the appropriate regulation and assigned the vessel categories. The regulation in question, 50 C.F.R. Sec. 679.40(a)(5)(iii)(C), provides that if an applicant used more than one vessel in different categories during the person's last year of participation (1988--1991), the person's QS must be assigned to each vessel category in proportion to the landings made in the different categories.  To Decision »
95-0030 Halibut/Sablefish IFQ
Issued: 11/5/1997 | Effective: 12/5/1997
Appellant: TISON, Kenneth
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant's vessel sank in 1989. Although he claimed he had fished sablefish since 1969, Appellant made no qualifying landings of sablefish or halibut during the qualifying period of 1988--1990. Appellant's only sablefish landing during that period was in Alaska state waters, which is excluded from IFQ program coverage.

AO affirmed RAM's determination that the Appellant did not make qualifying landings. The AO also rejected Appellant's claim for QS based on landings made prior to the qualifying period. The AO stated that the North Pacific Fishery Management Council had specifically chosen to deny eligibility to applicants who did not make actual landings during the qualifying period due to hardships or unavoidable circumstances.  To Decision »
95-0102 Halibut/Sablefish IFQ
Issued: 10/15/1997 | Effective: 10/29/1997
Appellant: DUFFUS, Kenneth M. v. D&G ENTERPRISES
Disposition: Affirmed IAD
Abstract Terms:
    - Lease

Abstract:  The Appellant was sole owner of a fishing vessel. Appellant and Mr. Bruce Gabrys each owned 50 percent of D&G Enterprises, Inc. Both parties applied for quota shares based on landings from the vessel. RAM awarded QS to Respondent on the grounds that Respondent had leased the vessel from Appellant during the period in question. On appeal, Appellant acknowledged the existence of a written vessel lease, but argued that it did not constitute a bareboat charter and, therefore, it should not be recognized for IFQ purposes. Appellant asserted that all the QS should be awarded to him as the vessel's owner.

AO concluded that the written agreement between the parties constituted a valid vessel lease for IFQ purposes and that QS had been properly awarded to the Respondent.  To Decision »
95-0102R Halibut/Sablefish IFQ
Issued: 10/15/1997 | Effective: 11/14/1997
Appellant: DUFFUS, Kenneth M. v. D&G ENTERPRISES (Revised)
Disposition: IAD Affirmed
Abstract Terms:
    - Lease

Abstract:  The Appellant was sole owner of a fishing vessel. Appellant and Mr. Bruce Gabrys each owned 50 percent of D&G Enterprises, Inc. Both parties applied for quota shares based on landings from the vessel. RAM awarded QS to Respondent on the grounds that Respondent had leased the vessel from Appellant during the period in question. On appeal, Appellant acknowledged the existence of a written vessel lease, but argued that it did not constitute a bareboat charter and, therefore, it should not be recognized for IFQ purposes. Appellant asserted that all the QS should be awarded to him as the vessel's owner.

AO concluded that the written agreement between the parties constituted a valid vessel lease for IFQ purposes and that QS had been properly awarded to the Respondent.  To Decision »
95-0082 Halibut/Sablefish IFQ
Issued: 10/6/1997 | Effective: 10/10/1997
Appellant: OCEAN PROWLER PARTNERSHIP
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Abstract: Appellant had applied for quota shares based on landings of sablefish harvested during 1989 and 1990 Gulf of Alaska longline surveys, during which Appellant's vessel was chartered to NMFS. The charter provided that Appellant would be compensated for its services and the use of its vessel by being allowed to keep and sell the catch. RAM had determined that the Appellant could not receive IFQ credit for the landings because the vessel had been leased to NMFS during the surveys and because the landings did not meet the definition of "legal landings" in the IFQ regulations.

AO concluded that the longline surveys, and the activities of the Appellant during the NMFS charters, were "scientific research activity" as defined in 50 C.F.R. ?600.10. Thus, Appellant's vessel was not engaged in "fishing" or "commercial fishing" during the charters, and the landings at issue were not "legal landings" under 50 C.F.R. ?679.40. The AO stated that because the same arguments of the Appellant were made and rejected in the companion case of Prowler Partnership v. Samuelson, Appeal No. 95 0084, and the Decision on Reconsideration (Part II) in that case, those decisions served as direct and controlling precedent in this appeal, and were incorporated by reference. Note: the decision is styled as Ocean Prowler Partnership (Part I). There is no Ocean Prowler Partnership Part II because the remaining issues were remanded to RAM and resolved satisfactorily.

Further action: Appeal to U.S. District Court (D. Alaska) Case No. A97 427 Civ [6 Nov 97]; Prowler Partnership v. Samuelson, Appeal No. 95-0084, was appealed to the U.S. District Court (D. Alaska) Case No. A97-413; both appeals were consolidated as Prowler Partnership and Ocean Prowler Partnership v. NMFS, Case No. A97-413; Order Denying Appellants Motion for Summary Judgment and Granting NMFS?s Motion for Summary Judgment, Case No. A97-413 [10 Dec 98]; Appeal filed to Ninth Circuit Court of Appeals, Case No. 99-35069.   To Decision »
95-00842 Halibut/Sablefish IFQ
Issued: 9/29/1997 | Effective: 10/29/1997
Appellant: PROWLER PARTNERSHIP
Disposition: Affirmed IAD
Abstract Terms:
    - Vessel
    - Eligibility
    - Successor-in-Interest

Abstract:  On reconsideration, Respondent adopted Appellant's arguments that it should have received IFQ credit for landings it made of sablefish caught during 1987 and 1988 Gulf of Alaska longline surveys, while the vessel was chartered to NMFS. Both parties disagreed with the AO's conclusion that the vessel was a "scientific research vessel" engaged in "scientific research activity" while under charter to NMFS, rather than engaged in "fishing" or "commercial fishing," and that, therefore, neither party could receive IFQ credit for the landings in question. After analyzing Appellant's arguments and evidence, the AO reached the same conclusions. In particular, the AO concluded that: (1) new regulatory definitions of "scientific research activity" and "scientific research vessel" in 50 C.F.R. sec. 600.10 (1996) are applicable in this appeal; (2) the F/V PROWLER was a "scientific research vessel" while under charter to NMFS; (3) the NMFS Gulf of Alaska longline surveys are "scientific research activity"; (4) the harvesting of fish during "scientific research activity by a scientific research vessel" does not constitute "commercial fishing," even if the fish were intended for sale or were actually sold; and (5) a "legal landing" for IFQ purposes requires that both the harvesting and the landing be in compliance with applicable commercial fishing regulations. The AO stated that compliance requires more than merely avoiding violation. One must be engaged in the regulated activity, and lawfully so, to be considered in compliance with the applicable regulations. Appellant was exempted from commercial fishing regulations because it was engaged in scientific research activity and not engaged in commercial fishing. Although the sablefish were legally harvested (by NMFS, during scientific research), they were not legally landed for IFQ purposes because neither NMFS nor the Appellant was engaged in commercial fishing when the fish were harvested, and, thus, the harvesting was not done in compliance with commercial fishing regulations.

Further action: Appeal to U.S. District Court (D. Alaska), Case No. A97-413 Civ (JWS)[30 Oct 97].   To Decision »
95-0044 Halibut/Sablefish IFQ
Issued: 9/5/1997 | Effective: 9/9/1997
Appellant: MOORE, Christopher O.
Disposition: Vacated IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  RAM denied Appellant's IFQ application as untimely because it was received five months after the filing deadline. On appeal, the AO found that extraordinary circumstances beyond the Appellant's control had prevented him from filing the application in a timely manner. The AO concluded that the Appellant's emotional and mental condition following the murder of his mother and the loss of a child warranted the application of the equitable tolling doctrine.

AO concluded that the Appellant's application was, as a matter of law, timely filed.   To Decision »
95-0035 Halibut/Sablefish IFQ
Issued: 8/1/1997 | Effective: 8/13/1997
Appellant: KINBERG, Marvin C. (Estate)
Disposition: Vacated IAD
Abstract Terms:
    - Estates
    - Untimely Applications and Appeals

Abstract:  Marvin Kinberg died suddenly in September 1992. His wife was appointed executrix of his estate. She filed an IFQ application on behalf of the estate, but it was filed eight months late. RAM denied the application as untimely. On appeal, the AO found that Mrs. Kinberg's mental and emotional condition during the two and one-half years following her husband's death constituted extraordinary circumstances beyond her control that prevented her from filing the application in a timely manner.

AO applied the equitable tolling doctrine and found that the application had been timely filed, as a matter of law.  To Decision »
95-0105 Halibut/Sablefish IFQ
Issued: 7/17/1997 | Effective: 8/18/1997
Appellant: HARPER, Benjamin L. v. WEST, Ted H.
Disposition: Vacated IAD
Abstract Terms:
    - Lease

Abstract:  Appellant owned a vessel through his solely owned corporation. Respondent was made president of the corporation; Appellant was secretary and treasurer. The parties also entered into an "Operating Agreement," which Respondent claimed was a written vessel lease, but which Appellant asserted was an employment agreement or a contract for services. AO found that the Operating Agreement did not constitute a written vessel lease, and that the evidence in the record did not support the existence of an oral vessel lease.

AO found that the parties' business relationship was more likely an employment or independent contractor agreement. AO vacated RAM's determination that a vessel lease had existed between the parties.

Further action: Appeal to U.S. District Court, District of Alaska, Case No. A97-0358 Civ (KWS)  To Decision »
95-0118 Halibut/Sablefish IFQ
Issued: 6/25/1997 | Effective: 7/25/1997
Appellant: VEERHUSEN, Daniel F. v. MCBRIDE, Patrick H.
Disposition: Vacated IAD
Abstract Terms:
    - Partnership
    - Successor-in-Interest
    - Corporation Changes
    - Lease

Abstract:  In 1982, Appellant and Respondent formed a 90/10 percent partnership for purposes of vessel ownership, and a 51/49 percent corporation for managing and operating the vessel. Both entities were dissolved by the time of QS application. IAD found that partnership had leased vessel to corporation for approximately six years. QS was issued to both parties as successors-in-interest to the corporation and in proportion to their respective interests in the corporation. On appeal, Appellant argued that there was no vessel lease and that he should receive 100 percent of QS as the sole successor to the dissolved partnership.

AO concluded there was not a valid vessel lease and that QS should be allocated in proportion to the parties' relative interests in the dissolved partnership. The AO stated that the corporation had not acted as an entrepreneur as contemplated by the IFQ program, and that the partnership bore the primary financial responsibility and risks for the vessel's operations, and enjoyed all the financial benefits of the vessel's operations. The AO found that the partnership was dissolved by the parties when they executed a settlement and release in 1990, in which the Respondent sold his partnership interest to the Appellant. At the time of dissolution, Appellant held a 90 percent interest and, therefore, is not the sole successor to the partnership.  To Decision »
95-0046 Halibut/Sablefish IFQ
Issued: 4/14/1997 | Effective: 5/14/1997
Appellant: BASARGIN, Ignaty v. EROFEEF, Lazar
Disposition: IAD superseded
Abstract Terms:
    - Lease

Abstract:  Appellant, as owner, and Respondent, as lessee, filed conflicting applications for QS for landings of halibut made from same vessel during the period of 1988-1990. The Division denied both their claims on grounds that it could not determine which party had the more convincing evidence. Appellant claimed that during the conflict period he: hired Respondent to skipper the vessel; told Respondent where and when to fish, and to market the fish; kept the vessel's income and expense records; calculated the vessel's crew, boat, and skipper shares after each halibut opener; treated the vessel's income and expenses as part of his fishing business; paid for the vessel's operating expenses, repairs, and maintenance; paid Respondent on a share basis; and fished his vessels (including the vessel in conflict) together, side-by-side, directing the vessels' fishing activities. Respondent claimed that during the same period he: paid the crew out of his share of the net proceeds; treated the vessel's operations as a family business, hiring family members, claiming the income and expenses from the vessel on his 1988-1990 federal tax returns, and doing general maintenance and repairs on the vessel; was the CFEC cardholder and operator of the vessel; split the expenses with Respondent, including the fuel, food, bait, ice, and gear; split the vessel's net income, 50/50, with Respondent; made all decisions regarding the vessel's operations; and hired, fired, and paid the crew. Respondent further claimed that Appellant characterized his share of the vessel's proceeds as "boat rent," and that Respondent was never present on, nor exercised control over, the vessel.

AO found that a lease of the vessel did not exist, primarily because (1) Appellant directed the vessel's overall fishing operations, as part of Appellant's multiple-vessel enterprise; (2) the federal income tax returns of the parties was not indicative of a lessor/lessee relationship; and (3) Appellant was partly responsible for the expenses of the vessel's fishing operations.   To Decision »
94-0006 Halibut/Sablefish IFQ
Issued: 3/14/1997 | Effective: 4/14/1997
Appellant: SODER, Melvin C.
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals
    - Untimely Claim

Abstract:  The RAM Division denied Appellant's application because his compleped application was not received by RAM until over two months after the deadline, July 15, 1994. RAM accepted application filings postmarked on or before the deadline. However, the envelope containing Appellant's application displayed a Honolulu, HI postmark, dated September 24, 1994, and Appellant's Cordova, AK post office box as the return address. There were no marks, notations, rubber stamps, stickers or other indications on the application envelope showing that it was diverted or delayed en route to Juneau, AK. On appeal, Appellant asserted his application was mailed from Cordova, AK on the last day of the deadline. Appellant could not explain how his application received a Honolulu, HI postmark in September 1994, and could not provide direct evidence that he had in fact mailed the application as he asserted. AO found that the application had not been timely filed.  To Decision »
95-0001 Halibut/Sablefish IFQ
Issued: 3/14/1997 | Effective: 4/14/1997
Appellant: ENCELEWSKI, Richard G.
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals
    - Regulations

Abstract:  The RAM Division denied the Appellant's application because it was not filed by the deadline. Appellant acknowledged he filed his RFA after the deadline. However, contended that the deadline should not be held against him because his RFA was submitted before the opening of the next fishing season. Appellant did not allege circumstances that would support the application of the equitable tolling doctrine in his case, nor was there any such evidence in the record. Appellant also argued that the entire IFQ program is illegal because it is violation of the 10th Amendment of the U.S. Constitution, the Magnuson Fishery and Conservation Act, and common law. AO found that Appellant's application was not timely filed and that there was no basis for accepting the application as timely filed.

AO found that Appellant's challenge to the legality of the IFQ program was outside the purview of this Office, and that the legality of the duly promulgated program regulations must be presumed.   To Decision »
95-0009 Halibut/Sablefish IFQ
Issued: 3/14/1997 | Effective: 4/14/1997
Appellant: KERBEL, Jeff
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  The RAM Division denied Appellant's application because he had not made legal landings of halibut or sablefish during QS qualifying years. Appellant made landings of sablefish in 1985, and of halibut in 1985 and 1986, but did not fish for halibut or sablefish in 1988-1990 (the QS qualifying years). Appellant claimed he purchased a vessel in 1991 after consulting with persons with the National Marine Fisheries Service, and feeling confident that he would receive QS under the IFQ program for his 1985 and 1986 halibut and sablefish landings. Appellant stated that he would not have purchased the vessel in 1991 if he had known that he would not be given credit for 1985-1986 landings. Appellant conceded that he is not eligible for QS under the current IFQ program but asked, on the basis of hardship, for substitution of his 1985- 1986 landings for landings not made during the qualifying years. AO found that, when creating the qualifying period, the North Pacific Fisheries Management Council (NPFMC) knew hardships would be created and chose not to provide any hardship exceptions. The NPFMC found that the three-year qualifying window for eligibility was "sufficient" and concluded that "no hardship provisions would be considered for this program."

AO found that Appellant cannot be a qualified person unless he owned or leased a vessel that made legal landings during the qualifying years, or unless he is a successor- in-interest to such a person. AO found that neither this office nor RAM are empowered to create exceptions on the basis of hardship.   To Decision »
95-0132 Halibut/Sablefish IFQ
Issued: 3/12/1997 | Effective: 4/11/1997
Appellant: MERRITT, Brian
Disposition: Vacated IAD
Abstract Terms:
    - Eligibility
    - Partnership
    - Landings
    - Untimely Claim

Abstract:  The RAM Division denied Appellant's claim for additional halibut QS because Appellant's claim was new and untimely, and because there was no evidence of a partnership, or a partnership's eligibility for QS based on the related landings. Under the IFQ program, a vessel owner can be a qualified person without personally having made any landings. A vessel owner may become a qualified person regardless of who made the landings from the vessel and regardless of whose fishing permits were used to record the landings on fish tickets. The regulations require that vessel landings be used to determine who is a qualified person, and that a person's landings be used to determine the amount of QS to be issued and the vessel category to be assigned. On appeal it was established that no partnership existed but that the landings at issue had in fact been made by the Appellant on his vessel and were incorrectly recorded on another vessel owner's fish tickets and permit card. The other vessel owner did not apply for the resulting QS.

AO found that, at the time of his application, Appellant reasonably believed that he was not allowed to claim landings made from his vessel that were recorded on another's fish tickets. AO found that Appellant's claim was timely since the landings at issue were made on a vessel previously listed by Appellant on his application.  To Decision »
95-0140 Halibut/Sablefish IFQ
Issued: 2/21/1997 | Effective: 3/24/1997
Appellant: MARTISHEV, Ioil T.
Disposition: Vacated IAD
Abstract Terms:
    - Untimely Claim

Abstract:  Appellant claimed additional QS for halibut landings made from a vessel in 1987 and another vessel in 1989 and 1990. The RAM Division denied Appellant's claims, either because the claims or evidence in support of them were not submitted until after the response deadline set by the Division. Appellant claimed on his RFA that a vessel he owned "through 1991" made landings of halibut in 1989 and 1990. RAM's records showed Appellant's ownership of the vessel as early as March 1988. Appellant also claimed, via submission of a CFEC data sheet, that he made landings of halibut in 1987 from another vessel. CFEC's records showed that Appellant owned the vessel during that time. The Division's records, however, showed only that Appellant owned the vessel through 1986. The abstracts of title for the vessels show that Appellant owned both vessels at the time of the landings.

AO found that both claims were timely made, and concluded that Appellant should receive QS for all legal halibut landings made from the vessels during the years in question.  To Decision »
95-0133R Halibut/Sablefish IFQ
Issued: 2/7/1997 | Effective: 3/10/1997
Appellant: ADAMONIS, Charles A. (Reconsideration)
Disposition: Affirmed decision
Abstract Terms:
    - Landings
    - Untimely Claim

Abstract:  On reconsideration, AO determined that RAM does not have the authority to use a state fish ticket as evidence of a legal landing where an essential piece of information is entirely missing, and that the deficiency can be corrected only on appeal. AO also found that claims for purposes of timeliness should be broadly construed in order to supply the meaning intended by the applicant and to serve the ends of justice. AO determined that construing "new" claims after QS has been issued, and reviewing those claims on appeal, would neither deny applicants their due process rights, nor usurp the role of RAM in making determinations on applicants' claims.  To Decision »
96-0003 Halibut/Sablefish IFQ
Issued: 1/16/1997 | Effective: 2/18/1997
Appellant: PADON, Bradley V.
Disposition: Vacated IAD
Abstract Terms:
    - Lease

Abstract:  The RAM Division denied Appellant's application because he had failed to prove that he had owned or leased a vessel from which legal landings had been made during the qualifying years. Appellant argued that he held an oral lease of a vessel. The vessel owner also had applied for and was issued QS based upon his ownership of the vessel during qualifying years; however, he did not receive QS for the year in which the Appellant claimed to have leased the vessel.

AO found that the Appellant's arrangement with the vessel owner met five of seven factors used to ascertain the existence of a lease, and that the remaining two factors were neither detrimental nor helpful in determining whether or not a lease existed. AO was significantly influenced by the owner's admission that he could not deny that he had let Appellant run his vessel during the relevant time. AO concluded that Appellant had leased the vessel from the owner during the time which qualifying landings were made.  To Decision »
96-0075 Halibut/Sablefish IFQ
Issued: 1/16/1997 | Effective: 2/18/1997
Appellant: NETTIE H, Inc. v. SKGIURA, Keith T. & MELLING, Alan L.
Disposition: Affirmed IAD
Abstract Terms:
    - Partnership
    - Successor-in-Interest

Abstract:  Appellant and Respondents filed conflicting claims of QS for the landings of halibut and sablefish made from the same vessel between February 1987 and March 1989. The vessel was owned during the relevant time by the NETTIE H partnership, which had two partners (Appellant and Respondent Suguira) between February and November 1987, and three partners (Appellant and Respondents Suguira and Melling) from the beginning of the ownership of the three partners until March 1989, when the Appellant bought out the other two partners. The RAM Division denied Appellant's claim for 100 percent of the QS associated with the landings made during the relevant period because of the other partners respective ownership interests in the vessel at the time of the dissolution of the partnerships, and because IFQ rights may not be transferred with the sale of interests in a partnership.

AO upheld the Division's determination after finding that new partnerships were created with the changes in membership in November 1987 and in March 1989 and after concluding that IFQ rights may not be acquired under private agreements with the transfer of partnership interests.  To Decision »
95-0062 Halibut/Sablefish IFQ
Issued: 1/8/1997 | Effective: 2/7/1997
Appellant: WELLS, Darrell D.
Disposition: Vacated IAD but denied new cla
Abstract Terms:
    - Lease
    - Untimely Claim

Abstract:  The RAM Division denied Appellant's application because he had failed to prove that he had owned or leased a vessel from which legal landings had been made during the qualifying years. Appellant also claimed additional sablefish QS for the first time on appeal, two years after receiving his sablefish QS, and more than a year after filing his appeal. The owner of the vessel provided an affidavit acknowledging Appellant's lease during a qualifying year.

AO found that the affidavit submitted by the vessel owner was conclusive evidence of Appellant's lease of the vessel during the qualifying time period when legal landings of halibut were made. AO found Appellant's claim for additional qualifying pounds of sablefish to be untimely because it had not been made during the application period and also because it had not been made until after 90 federal working days following the issuance of the IAD. AO noted that, even if the claim had been timely made, it was unlikely that Appellant would have prevailed given that the Division's records show that the claimed lessor was not the owner of the vessel during the period of the alleged lease.   To Decision »
95-0056 Halibut/Sablefish IFQ
Issued: 12/30/1996 | Effective: 1/29/1997
Appellant: STELLING, John H. v. BARRIE, Darwin D.
Disposition: Vacated IAD
Abstract Terms:
    - Eligibility
    - Vessel

Abstract:  The RAM Division denied Appellant's application because he did not prove that he owned or leased a vessel that made legal landings during the qualifying years. On appeal, Appellant produced a state fish ticket showing landings made from a vessel on June 6, 1990. The U.S. Coast Guard abstract of title showed that Appellant was the owner of the vessel during that time. Respondent was joined in Appellant's appeal and notified of a conflict between he and Appellant, given that the QS he had received was for the landings made from the vessel on that date. The Respondent's right to transfer the QS was suspended. He was given 30 days to respond to the notice of joinder. He did not reply to the notice. Nor did Respondent dispute Appellant's claim of ownership of the vessel at the time of the related landings.

AO found that Appellant should receive the QS in question, given the superior proof of the abstract of title for the vessel.  To Decision »
95-0078 Halibut/Sablefish IFQ
Issued: 12/26/1996 | Effective: 1/27/1997
Appellant: EASTERLING, James D.
Disposition: Vacated IAD
Abstract Terms:
    - Lease

Abstract:  RAM Division denied Appellant's application for QS because he did not adequately prove that he owned or leased a vessel during the qualifying years. The QS that Appellant applied for was issued by RAM to the vessel owner, who had not answered the question on his RFA as to whether he had leased the vessel. The vessel owner subsequently transferred the concerned QS so he was not made a party to this appeal. On appeal, Appellant stated that the vessel owner had leased the vessel to him and that the word "lease" was specifically used; however, they disagreed during testimony as to whether or not their arrangement could be characterized as a lease.

AO found that: (1) the parties, at relevant times prior to the IFQ program, characterized their arrangement for Appellant's use of the vessel as a lease; (2) the vessel owner admitted that Appellant was not a hired skipper or employee. A settlement sheet, contemporaneous with Appellant's use of the vessel, that showed the vessel owner was paid for the "lease" of the vessel, was shown to the vessel owner at the time of payment; (3) on several occasions prior to this appeal, the vessel owner could have denied that a lease existed and did not; (4) the arrangement between the parties satisfied six of the seven factors used to ascertain the existence of a vessel lease; and, it was significant that the vessel owner did not hire or employ the Appellant.  To Decision »
95-0047 Halibut/Sablefish IFQ
Issued: 12/1/1996 | Effective: 1/1/1997
Appellant: TONGA PARTNERSHIP
Disposition: Vacated IAD
Abstract Terms:
    - Lease

Abstract:  Appellant and Respondent filed conflicting applications for QS based on landings of halibut made from same vessel between May and October, 1988. Appellant applied as the owner and Respondent applied as lessee of the vessel. The RAM Division awarded the QS to Respondent. On appeal, the parties agreed they had entered into an oral lease/purchase agreement for the vessel that was in effect for the June, 1988 halibut opener. Under the agreement, Appellant agreed to pay Respondent 30 percent of the gross revenue to lease the vessel; pay a down payment of $6,500 to Respondent for the purchase of the vessel, prior to July 15, 1988; pay all vessel expenses, including hull and liability insurance; obtain financing, and pay Respondent for the balance of the purchase of the vessel, by the end of 1988. The parties agreed that Respondent skippered and directed the fishing operations of the vessel for the May, 1988 halibut opener. Respondent testified he canceled the lease/ purchase agreement after June 1988, but acknowledged that he agreed to lease the vessel for the duration of the 1988 fishing season, limited solely to Dungeness crab, subject to the sale of the vessel. The parties agreed that Appellant had possession and command of the vessel, and directed the vessel's fishing activities, from June through October 1988. Respondent admitted that he received a percentage of the halibut catch from the vessel during that period.

AO found that Appellant did not lease the vessel during May, 1988, since the evidence showed that the partners of Respondent were employees of Appellant at that time. AO also found, however, that Appellant leased the vessel from Respondent between June and October, 1988. The evidence showed during that time that (1) the parties characterized their arrangement for the use of the vessel as a vessel lease; (2) Respondent possessed and controlled the vessel, and directed the vessel's fishing operations, including the marketing of the fish; (3) Respondent paid for, and assumed the primary financial responsibilities of, the operations of the vessel; and (4) the arrangement had a set term. AO ruled that even if the lease had been breached with the fishing of halibut, (instead of just crab), that a breach does not retroactively invalidate a lease agreement. AO also concluded that the alleged "breach" in this instance was not tantamount to the termination of the lease. The evidence showed that the nature of the relationship between the parties was not fundamentally changed by the alleged unauthorized halibut fishing since Appellant had exclusive possession and control of the vessel, and Respondent accepted payment for his share of the halibut proceeds, for the entire period.   To Decision »
95-0086 Halibut/Sablefish IFQ
Issued: 11/1/1996 | Effective: 11/13/1996
Appellant: EROFEEF, Alex v. BASARGIN, Nazary
Disposition: Affirmed IAD
Abstract Terms:
    - Vessel

Abstract:  Appellant and Respondent filed conflicting applications for QS, both claiming ownership of the same vessel. Respondent based his ownership claim on a bill of sale, a certificate of registration, and a U.S. Coast Guard abstract of title. The RAM Division awarded QS to Respondent. On appeal, Appellant based his claim of ownership on a sales agreement which provided for the title of the vessel to pass at a later date; and documents which showed that he had paid the mortgage on the vessel and for the vessel's operating expenses.

AO found in favor of Respondent because, by regulation, the abstract is superior proof of ownership.  To Decision »
95-0114 Halibut/Sablefish IFQ
Issued: 10/30/1996 | Effective: 11/29/1996
Appellant: SILVER ICE v. ARCTIC SELECT
Disposition: Affirmed IAD
Abstract Terms:
    - Transfer
    - Partnership

Abstract:  Appellant, a partnership, was owned 50 percent by Respondent, and 25 percent each by Maring, Inc. and Anderson, Inc. Appellant owned a vessel which made landings of halibut and sablefish during 1989 and 1990. Respondent sold its entire interest in Appellant on Jan. 1, 1991. The RAM Division determined that Respondent was a former partner of a dissolved partnership and that it was eligible for 50 percent of the QS associated with the landings made by the vessel. On appeal, Appellant claimed that it should have received 100 percent of the QS associated with the landings, due to its purchase of Respondent's interests in the Appellant.

AO found in favor of Respondent on the basis that Appellant was "dissolved" when Respondent's interests were sold and that "IFQ rights" are not transferable. AO determined that a partnership is "dissolved" when there is a change in partners, that the IFQ regulations do not provide for assignments of eligibility for QS and that the Division is not bound by the terms of private agreements, which purport to assign eligibility for the issuance of QS.

Further action: Appellant's reconsideration motion was denied on December 2, 1996.  To Decision »
95-0131 Halibut/Sablefish IFQ
Issued: 10/28/1996 | Effective: 11/27/1996
Appellant: WISNER, Hugh R., v. SCHMITZ, George R., Respondent
Disposition: IAD modified/affirmed in part
Abstract Terms:
    - Due Process
    - Lease

Abstract:  The Division determined that Respondent leased a total of three fishing vessels from Appellant, the owner of the vessels, during the period of 1987 1990. Appellant claimed on appeal that no valid leases existed or were put into effect. He also claimed his due process rights were violated. Bareboat charters between Appellant and Respondent existed for each of the vessels during the relevant periods. The Charters provided for Respondent to pay Appellant 45 percent of the gross fishing proceeds as rent; captain the vessels, reimburse Appellant for the cost of insurance; keep the vesselseaworthy; control, possess, and command the vessel; indemnify Appellant against claims, actions, proceedings, damages, and liabilities; furnish the crew; and pay all of the vessels' operating expenses. One of the vessels was returned to Appellant for the period of September through December, 1990.

Given the language and terminology used in the bare boat charters, the AO found that the Charters constituted valid vessel leases. Because the Charters identified the vessels, the name of the lease holders, and the period of time which the Charters were to be in effect, the AO also found that the Charters constituted conclusive evidence of the existence of vessel leases between the parties. Because the evidence showed that the parties conduct, on the whole, was not fundamentally different from that called for under the terms of the Charters, and did not support an inference that the parties mutually intended and agreed to set aside the documents, the AO ruled that the Charters were in effect for the period stated in the Charters (other than for one of the vessels during September through December 1990). Finally, the AO held that he does not have the authority to invalidate IFQ regulations on grounds of unconstitutionality or due process.

Further action: Reconsideration motion denied on 11 Nov 96.   To Decision »
95-0128 Halibut/Sablefish IFQ
Issued: 10/25/1996 | Effective: 11/11/1996
Appellant: WISNER, Hugh R. v, SCHAUFF, Craig A.
Disposition: Affirmed IAD
Abstract Terms:
    - Lease
    - Due Process

Abstract:  Appellant, as owner, claimed he did not lease vessel to Respondent, the putative lessee, in 1989. Respondent submitted a written bare boat charter as evidence of vessel lease. The charter required Respondent to pay Appellant 45 percent of the gross fishing proceeds as rent; serve as master of the vessel; reimburse Appellant for cost of insurance; keep the vessel seaworthy; control, possess, and command the vessel; indemnify Appellant against claims, actions, proceedings, damages, and liabilities; and pay all of the vessel's operating expenses. Appellant acknowledged that he signed the charter, but contended that the charter was never put into effect. Appellant also claimed that Respondent was an employee, and that Appellant paid for insurance, fuel, water, port charges, wharfages, drydocking, etc. Appellant produced IRS 1099 forms to show he made payments of fishing proceeds to Respondent. The RAM Division determined that a lease existed during the relevant period. Because the charter identified the vessel, the name of the leaseholder, and the period of time the charter was to be in effect, the AO determined that the charter constituted conclusive evidence of a valid vessel lease.

AO found that the lease was put into effect for the term stated in the lease, given the absence of proof that the parties mutually agreed to set aside or terminate the lease. The Appeals Officer also determined that he did not have legal authority to invalidate any of the IFQ regulations for Due Process violations.

Further Action: Reconsideration motion denied 9 Dec 96.  To Decision »
95-0049 Halibut/Sablefish IFQ
Issued: 10/22/1996 | Effective: 11/21/1996
Appellant: DETERMINED PARTNERSHIP V. BIG BLUE, INC
Disposition: Affirmed IAD
Abstract Terms:
    - Lease

Abstract:  Appellant, as putative lessee, and Respondent, as owner, claimed QS based on landings of halibut made from same vessel in April and May, 1985. The RAM Division determined that no vessel lease existed during the relevant period and awarded the QS to Respondent, subject to appeal. The evidence on appeal showed that the parties agreed that Appellant would captain the vessel, provide halibut gear, flags, buoys, and anchors, do all "paperwork", receive 60 percent of the vessel's gross proceeds, pay for fuel, bait, crew shares, food, and to pay Respondent an amount to offset insurance costs. Respondent was to receive 40 percent of the gross proceeds, provide an initial portion of the halibut gear (which would be purchased at the end of the season by Appellant), and arrange for the marketing of the fish.

AO found that no vessel lease existed given (1) the degree of control exercised by Respondent over the fishing operation, especially in regard to the selection of the buyer of the fish; (2) Respondent's complaint to Appellant about lower than expected earnings from the first fishing trip; (3) the counsel given to Appellant by Respondent regarding how to calculate crew share for the second trip; (4) Respondent's forgiveness of the insurance contribution owed by Appellant for the second trip; (5) Respondent's advice to Appellant where the fish for the second trip; and (6) Respondent's firing of Appellant during the clean-up phase after the second trip.

Further action: U.S. Dist. Ct. Appeal   To Decision »
95-0054 Halibut/Sablefish IFQ
Issued: 9/16/1996 | Effective: 10/16/1996
Appellant: WEIKAL, Stanley R. v. COLE, Ralph and Lynda
Disposition: Vacated IAD
Abstract Terms:
    - Lease

Abstract:  Appellant, as putative lessee, and Respondents, as owners, claimed QS associated with landings of halibut and sablefish made from the same vessel during 1987. The RAM Division denied both of their claims. The evidence on appeal showed that the parties agreed that Respondents would supply halibut gear, pay for the conversion of the vessel to longlining, provide for vessel insurance, reimburse Appellant for certain expenses related to bait and vessel repair parts, and to pay for half of vessel fuel costs from Anacortes to Sitka. Appellant was required to market the catch, pay Respondents 30 percent "off-the-top" for each sablefish landing and 35 percent "off-the-top" for each halibut landing, supply all fishing gear, pay all operating expenses (bait, food, fuel, etc.), return Respondents halibut ground line intact, reimburse Respondents for funds expended on his behalf for food, fuel, and sablefish gear refurbishment.

AO determined that the parties' relationship constituted a vessel lease. The AO was persuaded by Appellant's substantial investments in the fishing operations; Appellant's substantial responsibility for the operating expenses of the vessel; Appellant's full control of the vessel and of the fishing operations, including the marketing of the fish; the acknowledgment of the existence of a vessel lease with Appellant on Respondents' RFA; Respondents' treatment of the vessel's crew for Washington State unemployment tax purposes; and the existence of a set or guaranteed term for the use of the vessel.

Further action: Respondents' reconsideration motion denied October 9, 1996. Appeal to U.S. District Court (W.D. Wash.) Consolidated Case No. C96-613C [19 Nov 96]. Partial Summary Judgement for Defendant 08-13-97.  To Decision »
95-0111 Halibut/Sablefish IFQ
Issued: 9/11/1996 | Effective: 10/11/1996
Appellant: SUYDAM, Kevin A.
Disposition: Affirmed IAD
Abstract Terms:
    - Lease
    - Regulations

Abstract:  The RAM Division revoked QS previously awarded to Appellant for ownership of a vessel during qualifying years. RAM determined that a charter agreement for the vessel, executed by a co-owner, was conclusive evidence of a lease of the vessel. On appeal, Appellant argued that charter agreement was not legally valid and not binding on him (since he had never signed it). Appellant further argued that RAM's revocation of QS deprived him of a property right in violation of the Due Process Clause of the U.S. Constitution. The official Abstract of Title showed that the co-owner's interest in the vessel began before execution of the charter agreement.

AO found that because the co-owner and Appellant were tenants-in-common the co-owner had the legal authority to lease the vessel without the knowledge or authorization of Appellant.

AO found that the vessel charter agreement was a legally valid lease. AO found that Appellant's claim of denial of due process, resulting in loss of a property right, was without merit because IFQ regulations provide that QS is not a property right subject to the "takings" provision under the Fifth Amendment of the U.S. Constitution.

Further action: Appellant filed a Motion for Reconsideration in which he alleged: (1) that he was denied due process because he was not given a hearing; (2) that IFQ regulations do not prevent him from claiming QS as a property right under the U.S. Constitution; and, (3) it is common that signatures of all co-owners or tenants-in-common are required in business and vessel transactions.

AO found that Appellant was not denied due process because the facts in this appeal were not in dispute and that a hearing would not have affected the outcome of the appeal. AO found that the IFQ regulations provide that QS is not a property right but a harvesting privilege that may be revoked or taken by NMFS without compensation when found not in conformance with the IFQ program. AO found that IFQ regulations and common law provide that not all signatures are required for a valid vessel lease; and therefore, the lease was legally binding on Appellant as co-owner. AO found that Appellant did not present any matter of fact or law that had been overlooked or misunderstood and denied the Motion for Reconsideration.  To Decision »
95-0138 Halibut/Sablefish IFQ
Issued: 8/20/1996 | Effective: 8/20/1996
Appellant: SHARABARIN, Vasily A.
Disposition: Dismissed
Abstract Terms:

Abstract:    To Decision »
95-0071 Halibut/Sablefish IFQ
Issued: 8/16/1996 | Effective: 9/16/1996
Appellant: MCPHERSON, Marvin O.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant claimed ownership of four vessels on his RFA. The RAM Division sent him a QS Data Summary showing that he was not eligible for QS. Appellant did not contest the Summary. RAM thereafter denied Appellant's application for QS for lack of evidence of landings and ownership from and of a vessel during the QS qualifying period. On appeal, Appellant produced bills of sale for two vessels, vessel registration forms for the four vessels, and various receipts and weight tickets for halibut landed, sold, or received during the years of 1988, 1989, 1990.

AO affirmed the denial of Appellant's application for QS due to the lack of evidence of either ownership or landings made from the vessels during the QS qualifying years. One major problem was that Appellant's evidence did not show who caught, sold, landed the halibut, the type of gear used to harvest the halibut, where and when the halibut was harvested or landed, and the name of the vessel used to harvest or land the halibut.  To Decision »
95-0059 Halibut/Sablefish IFQ
Issued: 8/16/1996 | Effective: 9/16/1996
Appellant: HAWNEY, Mark C.
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Claim

Abstract:  Appellant filed an RFA with the RAM Division for QS, claiming ownership of two unnamed vessels. RAM sent him a QS Data Summary informing him of his ineligibility of QS. Appellant never contested the QS Data Summary. Appellant later filed a timely appeal, claiming that he leased another unnamed vessel.

AO affirmed the denial of the application for QS, finding that Appellant had waived his right to claim the lease of a vessel [for purposes of QS] by not claiming such during the QS application period. A claim not made on an RFA or application for QS, or before the 90-day deadline for substantiating claims, may not be raised on appeal.  To Decision »
95-0057 Halibut/Sablefish IFQ
Issued: 8/16/1996 | Effective: 9/16/1996
Appellant: BROWER, David W.
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Claim

Abstract:  Appellant filed an RFA without claiming ownership or lease of a vessel. The RAM Division sent him a QS Data Summary informing him of his ineligibility for QS. Appellant never contested the Summary. He was thereafter denied QS. Appellant filed a timely appeal, claiming QS eligibility on the basis of a lease of the F/V SARASOTA during 1984-1993.

AO found against Appellant, per Tiger, Inc., Appeal No. 95-100, February 26, 1996, on the basis that a claim not made on an RFA or application for QS, or before the 90-day deadline for substantiating claims, may not be raised on appeal.  To Decision »
95-0121 Halibut/Sablefish IFQ
Issued: 8/16/1996 | Effective: 9/16/1996
Appellant: SHADLE, Matthew
Disposition: Affirmed IAD
Abstract Terms:
    - Lease

Abstract:  Appellant claimed additional halibut QS on the basis of an oral lease of a vessel between December 26, 1988, and October 25, 1989. The only evidence that he produced in support of his claim was a State fish ticket for halibut landings made from the vessel on September 11, 1989; an affidavit stating that Appellant was the "master" of the vessel from January 1, 1989, through October 31, 1989; and an affidavit from a crew member, who stated that during December 1988 and October 1989 Appellant was in charge of the vessel, directed the vessel's fishing operations, hired and paid the crew, paid for fuel, bait, groceries, and assumed responsibility for engine repair and vessel fines. Although ordered to do so, Appellant never produced written proof of the existence of a lease. Nor did Appellant describe the nature, terms, and circumstances of the lease, or who he leased the vessel from. Abstract of title for the vessel showed that the owners were William and Frances Hannan.

AO found by a preponderance of the evidence that Appellant did not lease the vessel. Appellant's request for additional time to provide proof was denied because it was submitted after the Decision.

Further Action: Motion for reconsideration denied.  To Decision »
95-0003 Halibut/Sablefish IFQ
Issued: 8/6/1996 | Effective: 9/5/1996
Appellant: FOSS, Richard D.
Disposition: Affirmed IAD
Abstract Terms:
    - Regulations
    - Untimely Applications and Appeals

Abstract:  The RAM Division received the Appellant's RFA over a month after the filing deadline and denied it as untimely. On appeal, Appellant contended that he had not, but should have, received actual notice of the deadline. Except for visits to Hawaii, Washington and Florida, Appellant primarily fished Pacific tuna after mid-1988 and resided outside the continental United States. There was no showing that Appellant made any inquiries about developments in the implementation of a halibut and sablefish IFQ program between December 1992 and August 1994. Appellant challenged the IFQ regulations, contending the program deprived him of due process and that the filing deadline violated the Administrative procedures act. AO found that these issues are not within the purview of this Office, that the agency's duly promulgated regulations are presumed to be valid. AO found that there was nothing extraordinary about the Appellant's circumstances. He did not suffer any disability or circumstance beyond his control that effectively prevented him from timely applying; and Appellant's relative isolation from information concerning the IFQ program during the periods at issue was the result of his own choice. AO found that the doctrine of equitable tolling was inapplicable when the Appellant can show only that he did not receive individualized notice of the program and an RFA form.

Further action: Appealed to the U.S. District Court (W.D. Wash.) Case No. C96-1583Z [4 Oct 96]. Summary Judgement for Defendant 11-19-97.  To Decision »
95-0039 Halibut/Sablefish IFQ
Issued: 8/6/1996 | Effective: 9/5/1996
Appellant: HAGLUND, Leonard R.
Disposition: Affirmed IAD
Abstract Terms:
    - Partnership
    - Untimely Applications and Appeals

Abstract:  The Appellant did not file a timely application [RFA] for QS. The RAM Division issued an IAD denying Appellant's request for QS because of untimeliness. On appeal, Appellant claimed that the RFA filed by his partner, as co-owner of the vessel, should have been accepted as fulfilling the filing requirements. AO ruled against Appellant on the basis that (1) he provided insufficient evidence to support a finding of an existing partnership relationship; and (2) he suffered no disability or extraordinary circumstance that prevented him from filing a timely application.  To Decision »
95-0025 Halibut/Sablefish IFQ
Issued: 8/5/1996 | Effective: 9/4/1996
Appellant: PEDERSEN, Arthur B. Sr.
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  The RAM Division received Appellant's RFA over six months after the filing deadline and denied it as untimely. Appellant stated on appeal that he had been moving back and forth between Chignik, Anchorage, and Kodiak, Alaska since the death of his wife. Appellant did not challenge the IFQ program regulations or contend that RAM failed to comply with the regulations. Appellant did not contend that he had mailed or faxed his RFA by the deadline. AO found that the RFA was untimely filed and noted that equitable tolling of the filing deadline was inapplicable where the Appellant could only show that he did not receive individualized notice of the program and an RFA form.  To Decision »
95-0107 Halibut/Sablefish IFQ
Issued: 8/5/1996 | Effective: 9/4/1996
Appellant: LINDHOLM, Everett J.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  The RAM Division denied Appellant's application because Appellant failed to show that he owned a vessel from which legal landings of halibut or sablefish were made during the QS qualifying years. On appeal, Appellant argued that he should be found eligible based on the fact that he had landings before and after the QS qualifying years and had good reasons for not having made landings from 1988-1990. Appellant stated that his vessel, from which he landed 17,000 lbs. of halibut in 1987, was lost in a storm in 1988. In May 1988, Appellant purchased a new vessel but was unable to rig it in time for the halibut season. Appellant stated he did not have landings in 1989 because of the Exxon oil spill. Appellant stated "In 1990 we elected to stay with salmon as our primary fisheries. In 1991 we again did halibut and in 1992 we stayed with salmon." AO found that the NPFMC expressly rejected allocation of QS on the basis of hardship or unavoidable circumstance.  To Decision »
95-0077 Halibut/Sablefish IFQ
Issued: 8/5/1996 | Effective: 9/4/1996
Appellant: WILSON, Jay M.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility
    - Regulations

Abstract:  The RAM Division denied Appellant's application on the basis that Appellant had provided no evidence of ownership or lease of a commercial fishing vessel upon which legal landings of halibut or sablefish were made during any of the QS qualifying years. On appeal, Appellant provided no new evidence of eligibility, only a letter attacking the IFQ program and those responsible for program administration, challenging the constitutionality of IFQ regulations.

AO found that Appellant's constitutional challenge of the agency's regulations was not within the purview of the appeals office. AO concluded that Appellant did not establish eligibility for QS.   To Decision »
95-0066 Halibut/Sablefish IFQ
Issued: 8/5/1996 | Effective: 9/4/1996
Appellant: RACE, Mike R.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  The RAM Division denied Appellant's application for QS because there was no evidence Appellant had any legal landings during a QS qualifying year. AO agreed with RAM, due to lack of legal landings during the qualifying period.  To Decision »
95-0123 Halibut/Sablefish IFQ
Issued: 8/5/1996 | Effective: 9/4/1996
Appellant: BILLSTROM, Robert E.
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  The Appellant filed his RFA with the RAM Division almost one year after the filing deadline, stating that he believed his original application was lost in the mail. He later in a letter also stated that he really did not know for sure if he had sent in a timely RFA, as he was busy at the time. Appellant did not allege that he was suffering from any disability or circumstance that would have prevented him from timely filing an application. AO found that the Appellant's application was untimely filed.  To Decision »
95-0091 Halibut/Sablefish IFQ
Issued: 8/2/1996 | Effective: 9/3/1996
Appellant: GILLMAN, Richard H. v. Beil, Orlando B.
Disposition: Affirmed IAD
Abstract Terms:
    - Lease

Abstract:  Respondent, owner of the vessel, and Appellant, putative lessee of the vessel, applied for QS under the IFQ Program. The IAD awarded the QS to Respondent, finding that no unwritten lease existed between the parties. AO found that the parties agreed that Appellant would run the vessel for Respondent. Respondent maintained as much control as was practical given his distance from the vessel, including attempted radio contact. Respondent hired the original crew and replacement crew were hired subject to his approval. Appellant received one half of the 30 percent boat share in addition to a crew share, and was responsible for maintenance and repairs required during the fishing operations, particularly if they were due to his fault. Appellant and the crew were responsible for trip expenses. The parties split the cost of P&I insurance. Respondent paid for the gear and most other operating expenses associated with longlining. Appellant received payment directly from the fish processors, handled the accounting, paid the crew and trip expenses, and listed the income and expenses of the fishing operations on his tax returns. The parties did not refer to the arrangement as a "lease" during relevant times. The arrangement had no fixed term of duration. AO applied the seven factors developed in Smee v. Echo Belle, Inc., Appeal No. 95-0076, and found that the preponderance of the evidence established there was no unwritten lease between the parties.   To Decision »
95-0137 Halibut/Sablefish IFQ
Issued: 8/2/1996 | Effective: 8/21/1996
Appellant: GATES, William C. v. B-BOATS, INC. & DELLA MARYLYNE, INC
Disposition: Affirmed IAD
Abstract Terms:
    - Lease

Abstract:  Appellant and Respondents claimed QS for landings of halibut and sablefish made from two vessels. The Division awarded Respondents the contested QS. Appellant claimed on appeal that he orally leased the vessels from the Respondents during the relevant periods. The parties agreed that Appellant would captain the vessels; pay Respondents a 38 percent "boat share" out of the gross of all landings; hire, fire and pay the crew; pay all trip expenses (ice, fuel, bait, food); and return the vessels fully fueled, in the same condition as at the start of the season, with all lost or condemned gear replaced and accounted for. The Respondents were to provide the vessels at the start of each fishing season, fully fueled; pay for major repairs, and provide hull and P&I insurance. The Respondents paid for additional fishing gear, accepted a reduced 30 percent boat share when fishing was poor, advanced Appellant money to pay for "start up" trip expenses, controlled the overall fishing operations of the vessels at various times. Appellant claimed his "boat share" payments as "rent" on his federal tax returns and issued 1099's to crew of both vessels. AO found that Appellant did not lease the vessels due to the extent of Respondents' control of the vessels operations and the advancement of substantial funds for the vessels operating expenses.

Further action: Appeal to U.S. District Court (W.D. Wash.) Case No. C96-1520R [20 Sep 96]. Consolidated with Ralph and Linda Cole and Raymond Dell appeals as Case No. C96-613C. Partial Summary Judgement for Defendant 08-13-97.  To Decision »
95-0034 Halibut/Sablefish IFQ
Issued: 8/1/1996 | Effective: 9/3/1996
Appellant: GOODRIE, Larry D.
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Appellant resided at Homer, Alaska, until October 1991, when he and his family moved to Bellingham, Washington. The RAM Division sent RFA forms and application instructions to his Homer address -- the last address known to the Division -- in December 1993 and April 1994. The mailings were returned to RAM showing that a forwarding order had expired. Appellant requested an RFA from RAM in February 1995, and again a month later when he still had not received the forms. RAM received his RFA on April 14, 1995, and denied the application as untimely. On appeal, Appellant argued that his application was late because the Homer post office failed to forward the RFA packets or to find him. AO concluded that Appellant's RFA was untimely filed and that the doctrine of equitable tolling did not apply because Appellant did not suffer from any disability or extraordinary circumstance that prevented him from timely filing.  To Decision »
95-0076 Halibut/Sablefish IFQ
Issued: 8/1/1996 | Effective: 9/3/1996
Appellant: SMEE, Jonathan v. ECHO BELL, INC
Disposition: Affirmed IAD
Abstract Terms:
    - Lease

Abstract:  Both Respondent, owner of the vessel, and Appellant, putative lessee of the vessel, applied for QS under the IFQ Program. The IAD awarded the QS to Respondent, finding that no unwritten lease existed between the parties. AO, after considering oral testimony and documentary evidence, found that the parties agreed that Appellant would receive 55 percent of fishing proceeds, from which he paid labor and trip expenses, and Respondent would receive 45 percent of fishing proceeds, from which it paid most of the other operating expenses associated with the fishing venture, including P&I insurance and crew injuries not covered by insurance. Appellant received payment directly from the fish processors, handled the accounting, paid the crew and trip expenses from an account he set up in his own name, and listed the income and expenses of the fishing operations on his tax returns. The parties did not refer to the arrangement as a "lease" during the relevant times. The arrangement had no fixed term of duration, and was interrupted when the vessel was used to tender salmon. The decision clarified that the standard of review on appeal is de novo with each party bearing the burden of persuasion, overruling prior decisions to the contrary. The decision added a seventh factor to the factors developed in O'Rourke v. Riddle, Appeal No. 95-0018 and Kristovich v. Dell, Appeal No. 95-0010, for determining on a case-by-case basis whether an unwritten agreement is a lease for IFQ purposes. It clarified that trip expenses are not disregarded entirely. The seven factors now are: (1) how the parties characterized their business arrangement at the relevant times; (2) whether and to what extent the claimed lessee had possession and command of the vessel and control of navigation of the vessel; (3) whether the claimed lessee directed fishing operations of the vessel; (4) whether the claimed lessee had the right to hire, fire, and pay the crew; (5) whether the claimed lessee was responsible for the operating expenses of the vessel; (6) whether the claimed lessee treated the fishing operations in which the vessel was used as his/her own business for federal income tax and other purposes; and (7) whether the claimed lease had a set or guaranteed term. AO found that a preponderance of the evidence established that there was no unwritten lease between the parties.

Further action: Appealed to the U.S. District Court (W.D. Wash.) Case No. C96-1512WD [26 Sep 96]. Summary judgement motion granted in favor of defendant [9 Jun 97]. Summary Judgement for Defendant 06-09-97.  To Decision »
95-0085 Halibut/Sablefish IFQ
Issued: 8/1/1996 | Effective: 9/3/1996
Appellant: EIKE, Steven J.
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Appellant, a Seattle resident, first learned of the IFQ application process in April 1995. He requested an application packet and returned the completed forms to the RAM Division on April 28, 1995 -- nine months after the application deadline. RAM denied his application as untimely. Appellant acknowledged on appeal that his application was filed late, but argued that the U.S. Postal Service was at fault for failing to forward the RFA packets that RAM had sent in December 1993 and April 1994 to his old address, a post office box in Cordova, Alaska -- the last address known to RAM. Evidence submitted by the Appellant showed that he had last paid for the Cordova post office box in May 1992 with the next payment due in April 1993. Appellant presented no evidence that he had filed a forwarding address with the Cordova post office or, if so, when it would have expired. AO concluded that the doctrine of equitable tolling did not apply because Appellant did not suffer from any disability or extraordinary circumstance that prevented him from timely applying, and that Appellant's RFA was untimely filed.   To Decision »
95-0008 Halibut/Sablefish IFQ
Issued: 7/3/1996 | Effective: 8/2/1996
Appellant: PETTICREW, Charles
Disposition: Affirmed IAD
Abstract Terms:
    - Regulations
    - Quota Share Amount

Abstract:  Appellant sought additional qualifying pounds of halibut and sablefish to compensate for reduction in catch during base years due to permanent physical disability following 1981 accident. Appellant also argued that IFQ regulations unlawfully discriminate against him in violation of Rehabilitation Act of 1973 because regulations do not require the RAM Division to take his disability into account when calculating qualifying pounds. Appellant proposed substituting an estimate of landings he would have made if he had not been disabled, in place of his actual landings history. AO found that RAM has no authority to allocate qualifying pounds that are not based on actual landings and, therefore, may not compensate Appellant for his physical disability. AO also concluded that the agency's own duly promulgated regulations must be presumed to be legally valid, and that an AO is without authority to invalidate IFQ regulations.

Further action: Appealed to U.S. District Court (D. Alaska) Case No. J96-023 CV (JWS) [10 Dec 96]. Settled prior to decision.  To Decision »
95-0122 Halibut/Sablefish IFQ
Issued: 6/18/1996 | Effective: 7/18/1996
Appellant: WEBER, Eric R. v. KOCHUTEN, Margaret
Disposition: Affirmed IAD
Abstract Terms:
    - Evidence
    - Vessel

Abstract:  Appellant and Respondent both claimed ownership of a vessel for the period 1984 until 1989, when the vessel was destroyed by fire. Appellant's claim was based solely on Alaska vessel registration records, which he did not disagree with. Respondent's claim was based on an affidavit of her ex- husband, who was the former owner of the vessel, and other statements and receipts that, while not recognized as acceptable forms of evidence under the IFQ regulations, did tend to prove her ownership. On the basis of this evidence, the RAM Division awarded qualifying pounds to Respondent. On appeal, Appellant did not submit any evidence of his ownership, despite a request to do so by AO. AO obtained a copy of the U.S. Coast Guard abstract of title for the vessel, which showed Respondent as the sole owner from November 1980. AO found for the Respondent on the basis of the abstract of title, and that Appellant had never owned the vessel. AO concluded that RAM cannot use evidence not listed in 50 C.F.R. sec. 676.20(a)(1)(ii) to affirmatively prove ownership, but may use such evidence as the basis for rejecting a claim of vessel ownership. AO also concluded that limitations on evidence under 50 C.F.R. sec. 676.20(a)(1) do not apply on appeal, and that the definition of "legal landing" in that section does not require compliance with federal vessel documentation regulations.  To Decision »
95-0092 Halibut/Sablefish IFQ
Issued: 4/12/1996 | Effective: 5/13/1996
Appellant: ETCHER, Michael V. v. MALCOM, Stanley D.
Disposition: Affirmed IAD
Abstract Terms:
    - Lease
    - Partnership

Abstract:  IAD held that Appellant had failed to establish that a partnership existed between the Appellant and the Respondent, who was the vessel owner, and that the Appellant failed to establish that such an alleged partnership leased the vessel owned by the Respondent. Evidence on appeal established that: (1) Appellant supplied most of the longlining gear during the years in question, but did not always fish with Respondent on Respondent's vessel; (2) the parties did not co-own a business; (3) the parties did not create or hold themselves out to be a partnership; and (4) there was no written or oral lease of the vessel.

AO found by a preponderance of the evidence that: (1) a 50 percent share of net proceeds received by Appellant constituted a crew share; (2) Appellant did not establish a prima facie case that a partnership existed; (3) Respondent had possession and control of the vessel at all times in question; and (4) Appellant did not establish that he had an interest in a dissolved partnership between himself and the Respondent. The AO applied Alaska Uniform Partnership Act to determine whether claimed partnership based in Alaska existed. Decision established that an oral lease will not be inferred when owner does not relinquish possession and control of vessel and there is not evidence that parties (as partners) specifically delegated management and control to the owner.  To Decision »
95-0133 Halibut/Sablefish IFQ
Issued: 4/5/1996 | Effective: 5/6/1996
Appellant: ADAMONIS, Charles A.
Disposition: Vacated IAD
Abstract Terms:
    - Landings
    - Untimely Claim

Abstract:  Appellant claimed 50,525 additional qualifying pounds of halibut that were denied by the RAM Division. The pounds were never included in Appellant's Quota Share Data Summary [QSDS] because the fish ticket on which they appear did not specify gear type used. RAM denied the qualifying pounds because Appellant did not claim the landing within the 90-day deadline following issuance of the QSDS. On appeal, Appellant submitted a log book and a letter from the processor that purchased the fish acknowledging that the gear type was hook-and-line and had been omitted from the fish ticket by their oversight. AO construed Appellant's claim as timely since it was encompassed by the claim Appellant made on his application. AO found that the landings were made on legal longline gear and ordered the Division to allocate the qualifying pounds to the Appellant.

Further action: Motion for Reconsideration by the RAM Division 2 May 96 - effective date stayed. Decision affirmed effective 10 March 1997.  To Decision »
95-0064 Halibut/Sablefish IFQ
Issued: 3/21/1996 | Effective: 3/27/1996
Appellant: C&M PARTNERSHIP V. RANWEILER, John L.
Disposition: Affirmed IAD
Abstract Terms:
    - Lease

Abstract:  Appellant filed an RFA for QS subsequent to the filing of Respondent. Appellant claimed eligibility based upon its ownership of the vessel that Respondent had claimed to have leased for the same time period. In his RFA filing prior to Appellant, the Respondent claimed to have leased the vessel during the years in question by written agreement. On the face of its RFA, Appellant did not admit or deny it had leased the vessel during the years in question. An IAD was issued approving Respondent's application for the QS but the award was held in abeyance until Appellant's appeal could be decided. In its appeal, Appellant claimed the Respondent was a hired skipper, not a lessee, and that Appellant should be awarded the QS since the Appellant had shouldered the primary financial burdens and risks of the vessel operation. Appellant did not refute the existence of the lease agreements alleged by the Respondent, did not contend the leases were not in effect during the periods stated within, and produced copies upon request. Appellant made no allegations of fraud, duress or coercion regarding the leases. AO found that the Respondent fit the definition of "entrepreneur" and that the Respondent was the party at risk if the venture had not succeeded. AO found that the evidence of the leases was conclusive.   To Decision »
95-0073 Halibut/Sablefish IFQ
Issued: 3/21/1996 | Effective: 3/27/1996
Appellant: ALWERT FISHERIES, INC. v. OREGON SEAFOOD PRODUCERS & PAINTER, Dorthy L.
Disposition: Affirmed IAD
Abstract Terms:
    - Successor-in-Interest

Abstract:  Appellant claimed QS based on the purchase of respondents' interest in the F/V BUCCANEER. Prior to the sales agreement, Appellant and Respondents owned the vessel as tenants-in-common, with Appellant owning a 50 percent interest and Respondents each owning a 25 percent interest. Appellant claimed that the purchase included IFQ rights. Appellant also claimed as Respondents' successor-in-interest by virtue of the vessel purchase. AO followed the IFQ decisions in Cadden v. Levenhagen and Pugh, Appeal No. 95-0013, and Prowler Partnership v. Samuelson, Decision on Reconsideration (Part 1), Appeal No. 95- 0084. AO found that: (1) Respondents cannot transfer their initial IFQ eligibility to Appellant through sale of the vessel; (2) Appellant is not a successor-in-interest of the respondents for purposes of QS eligibility under 50 C.F.R. 676.20(a)(1).   To Decision »
95-0010 Halibut/Sablefish IFQ
Issued: 3/20/1996 | Effective: 3/27/1996
Appellant: KRISTOVICH, John A. v. DELL, Raymond W.
Disposition: Vacated IAD
Abstract Terms:
    - Lease

Abstract:  Both Appellant, owner of the vessel, and Respondent, putative lessee of the vessel, applied for QS under the IFQ Program. The IAD awarded the QS to Respondent, finding that an unwritten lease existed between the parties. AO found that expenses Respondent claimed he had paid, and which were the basis of the IAD findings, were in fact paid from Appellant's checking account or from proceeds of the fishing operations. During the relevant times, the parties had not used the terms "lease" or "charter" to describe their relationship. The relationship was terminable at will with no set term. Appellant provided the vessel and allowed Respondent to use his checkbook to pay any expenses associated with the venture. Respondent hired the crew, operated the vessel, and directed the fishing operations. Respondent, who during the relevant times was Appellant's son-in-law, received a greater portion of the boat share than is standard in the industry for captains, as he supplied most of the longline gear. Because some of the gear was loaned by Kristovich and most of the other initial gear was used gear given in exchange for Respondent's work on his landlord's home, Respondent's initial investment was minimal.

AO found that Respondent's responsibilities in running the boat were consistent with either a lease or hired captain relationship; that Appellant was principally responsible for and fronted the funds for nearly all the operating expenses of the venture; and, that, although both parties treated the venture as their own business in many respects, including the fact that their mutual accountant listed income and expenses of the venture on Respondent's tax returns, the venture remained in essence Appellant's operation, with Respondent acting as his agent. Based on the accountant's standard practices, the tax returns would have been prepared in the same way whether or not there was a lease. AO found that there was no oral lease of the vessel, and accordingly vacated the IAD, holding that the owner, Appellant, is entitled to the QS. For the purpose of analyzing cases involving unwritten leases, the decision adds a sixth factor to the five factors set forth in O'Rourke v. Riddle, Appeal No. 95-0018: whether the claimed lease has a set term. If the parties did not at the relevant times use the terms "lease" or "charter" to describe their relationship, and the relationship is consistent with industry standards for hired captains, this is strong evidence that the parties did not intend a lease.

Further action: Appealed to U.S. District Court, Western District of Washington at Seattle, No. C96-613C. Summary Judgement for Defendant 09-02-97.   To Decision »
95-0084R Halibut/Sablefish IFQ
Issued: 3/12/1996 | Effective: 12/8/1995
Appellant: PROWLER PARTNERSHIP (Reconsideration Part II)
Disposition: Affirmed
Abstract Terms:
    - Landings
    - Eligibility
    - Successor-in-Interest
    - Vessel

Abstract:  On reconsideration, Respondent adopted Appellant's arguments that it should have received IFQ credit for landings it made of sablefish caught during 1987 and 1988 Gulf of Alaska longline surveys, while the vessel was chartered to NMFS. Both parties disagreed with the AO's conclusion that the vessel was a "scientific research vessel" engaged in "scientific research activity" while under charter to NMFS, rather than engaged in "fishing" or "commercial fishing," and that, therefore, neither party could receive IFQ credit for the landings in question.

After analyzing Appellant's arguments and evidence, the AO reached the same conclusions. In particular, the AO concluded that: (1) new regulatory definitions of "scientific research activity" and "scientific research vessel" in 50 C.F.R. 600.10 (1996) are applicable in this appeal; (2) the F/V PROWLER was a "scientific research vessel" while under charter to NMFS; (3) the NMFS Gulf of Alaska longline surveys are "scientific research activity"; (4) the harvesting of fish during "scientific research activity by a scientific research vessel" does not constitute "commercial fishing," even if the fish were intended for sale or were actually sold; and (5) a "legal landing" for IFQ purposes requires that both the harvesting and the landing be in compliance with applicable commercial fishing regulations. The AO stated that compliance requires more than merely avoiding violation. One must be engaged in the regulated activity, and lawfully so, to be considered in compliance with the applicable regulations. Appellant was exempted from commercial fishing regulations because it was engaged in scientific research activity and not engaged in commercial fishing. Although the sablefish were legally harvested (by NMFS, during scientific research), they were not legally landed for IFQ purposes because neither NMFS nor the Appellant was engaged in commercial fishing when the fish were harvested, and, thus, the harvesting was not done in compliance with commercial fishing regulations.

Further action: Appeal to U.S. District Court (D. Alaska), Case No. A97 413 Civ. [30 Oct 97]; this Appeal was consolidated with the Appeal of NMFS's Decision in Ocean Prowler Partnership, 95-0082, which was originally filed as Case No. A97-427; Order Denying Appellants Motion for Summary Judgment and Granting NMFS's Motion for Summary Judgment, Case No. A97-413 (Sedwick, J.) [10 Dec 98]; Appeal filed to Ninth Circuit Court of Appeals, Case No. 99-35069.

Further action: Decision on Remand Issued: 24 Aug 01
Disposition: Affirmed, on grounds in this decision, IAD Effective: 24 Sep 01
On remand, AO concluded that (1) the Prowler Partnership did not hold a lease of the F/V PROWLER between April 5, 1985 and June 9, 1989; and (2) even if the partnership had owned or held a lease of the vessel during the period in question, on June 9, 1989, the partnership was dissolved for the purposes of 50 C.F.R. 679.40(a)(2)iii when one of the partners sold his interest in the vessel to the other two partners. Therefore, it was proper to initially issue one-third of the sablefish QS generated by the vessel to each of the three former partners.   To Decision »
95-0084R Halibut/Sablefish IFQ
Issued: 3/12/1996 | Effective: 3/14/1996
Appellant: PROWLER PARTNERSHIP V. SAMUELSON, Gainhart (Reconsideration Part I)
Disposition: Affirmed OAA
Abstract Terms:
    - Eligibility
    - Successor-in-Interest
    - Vessel
    - Landings

Abstract:  On reconsideration, Appellant reasserted that it owned the F/V PROWLER during the time in question and that the AO erred in not considering factors outside of the abstract of title to determine vessel ownership. The AO stated that, contrary to Appellant's assertion, he did consider other factors besides the abstract of title, although under the IFQ regulations and previous appeals decisions, the abstract must be accepted as proof of ownership unless there is evidence that it is erroneous or fraudulent. Appellant also argued that the manner in which the vessel was operated showed that the parties did not recognize the effectiveness of their Co Ownership Agreement, which stated that "in no event shall the vessel be considered to be owned or operated by a partnership . . . and each party acknowledges that he is an independent contractor and not a partner or joint venturer with respect to the vessel or to the management or operation thereof."

The AO found that Appellant had provided no evidence that ownership was ever transferred from the individual owners to the partnership. The AO rejected as untimely Appellant's claim that the partnership leased the vessel from the individual owners, a claim made for the first time in the reconsideration motion. The AO found unpersuasive Appellant's argument that Respondent had sold his interest in QS when he sold his interest in the vessel and the partnership.

The AO concluded that rights to initial issuance of QS cannot be assigned, and contracts purporting to do so will not be recognized or enforced by NMFS. The AO pointed out that Appellant was not the purchaser of the Respondent's interest in the vessel. The AO rejected Appellant's argument that it is the successor in interest of Respondent, stating that Respondent has no successor.

Further action: On appeal, the U.S. District Court (D.Alaska) affirmed AO's finding that Appellant never owned the F/V PROWLER, but remanded the case to OAA and ordered consideration of Appellant's vessel lease claim and any other related issues. [Case No. A96 126 CV, Order from Chambers, 9 Dec 97 (Sedwick, J.)] Consideration on remand is pending.   To Decision »
95-00841 Halibut/Sablefish IFQ
Issued: 3/12/1996 | Effective: 3/14/1996
Appellant: PROWLER PARTNERSHIP
Disposition: Affirmed decision
Abstract Terms:
    - Successor-in-Interest
    - Vessel
    - Eligibility

Abstract:  On reconsideration, Appellant reasserted that it owned the F/V PROWLER during the time in question and that the AO erred in not considering factors outside of the abstract of title to determine vessel ownership. The AO stated that, contrary to Appellant's assertion, he did consider other factors besides the abstract of title, although under the IFQ regulations and previous appeals decisions, the abstract must be accepted as proof of ownership unless there is evidence that it is erroneous or fraudulent. Appellant also argued that the manner in which the vessel was operated showed that the parties did not recognize the effectiveness of their Co-Ownership Agreement, which stated that "in no event shall the vessel be considered to be owned or operated by a partnership . . . and each party acknowledges that he is an independent contractor and not a partner or joint venturer with respect to the vessel or to the management or operation thereof."

The AO found that Appellant had provided no evidence that ownership was ever transferred from the individual owners to the partnership. The AO rejected as untimely Appellant's claim that the partnership leased the vessel from the individual owners, a claim made for the first time in the reconsideration motion. The AO found unpersuasive Appellant's argument that Respondent had sold his interest in QS when he sold his interest in the vessel and the partnership.

The AO concluded that rights to initial issuance of QS cannot be assigned, and contracts purporting to do so will not be recognized or enforced by NMFS. The AO pointed out that Appellant was not the purchaser of the Respondent's interest in the vessel. The AO rejected Appellant's argument that it is the successor-in-interest of Respondent, stating that Respondent has no successor.

Further action: On appeal, the U.S. District Court (D.Alaska) affirmed AO's finding that Appellant never owned the F/V PROWLER, but remanded the case and ordered consideration of Appellant's vessel lease claim and any other related issues. [Case No. A96-126 CV (JWS), Order from Chambers, 9 Dec 97] Consideration on remand is pending.  To Decision »
95-0109 Halibut/Sablefish IFQ
Issued: 2/27/1996 | Effective: 3/4/1996
Appellant: DITTRICK, Joseph A v. WEIKAL, Stanley R. (Reconsideration)
Disposition: Modified IAD
Abstract Terms:
    - Lease

Abstract:  RAM Division found that Respondent held a lease of a vessel. Qualifying pounds of halibut and sablefish landed from the vessel during the lease period were awarded to Respondent. Both parties submitted a signed agreement entitled "Vessel Charter Agreement of F/V WILSON" between Appellant as vessel owner and Respondent as operator. Appellant maintained that the document should not be construed as a lease because Respondent was simply contracted to operate the vessel and "bore no initial or capital investment costs nor any risk of financial loss," and because Respondent returned the vessel before the end of the agreed term, thus retroactively voiding the agreement. Appellant stated that after the return of the vessel by Respondent, Appellant fished the vessel for two fall openings.

AO found that: (1) the parties executed a valid written agreement entitled Vessel Charter Agreement; (2) this agreement constituted conclusive evidence of a vessel lease for the purposes of the IFQ program; (3) although the term of the agreement was from 8 May 88 until 14 Oct 88, Respondent returned the vessel in early-to mid-June 1988, after making one or two trips, and Appellant fished the vessel for two openings in the fall of 1988; that the agreement was only in effect from 8 May 88 through 15 June 88; that qualifying pounds should be allocated to Respondent for the period of 8 May 88 through 15 June 88; that qualifying pounds should be allocated to Appellant for the period of 16 June 88 through 14 Oct 88. This decision established that when parties have executed a written vessel lease, for purposes of the IFQ program, a return of the vessel by the lessee prior to the expiration of the lease period terminates the lease.  To Decision »
95-0100R Halibut/Sablefish IFQ
Issued: 2/26/1996 | Effective: 3/4/1996
Appellant: TIGER, INC. (Reconsideration)
Disposition: Vacated IAD
Abstract Terms:
    - Untimely Claim

Abstract:  Appellant timely submitted an RFA to the RAM Division on which it claimed ownership of a vessel since 16 Mar 88. Division sent Appellant a completed Application for Quota Share using information from the Division's database, which showed the Appellant owned the vessel since 2 Apr 90, and asked Appellant to correct any erroneous information. Appellant signed and returned the application for QS to the Division without making any changes. On 16 Dec 94 the Division awarded QS to Appellant based on ownership of the vessel from 2 Apr 90 through 31 Dec 91. On 2 Mar 95 the Division received an affidavit from Appellant requesting that ownership information be changed to show the correct ownership dates, and that the resulting additional QS be issued. Appellant also submitted evidence that it had owned the vessel since 16 Mar 88.

AO found that: (1) Appellant had owned the vessel from 16 Mar 88 through 31 Dec 91; (2) claims made on an RFA are part of the applicant's application and claim, and are deemed to have been made in a timely manner if the RFA is filed in a timely manner; (3) Appellant's claim to additional QS based on ownership of the vessel from 1988, was presented in a timely manner; (4) the issuance of QS in an IAD is subject to appeal within the appeal period in effect at the time of issuance; (5) Appellant's written assertions met the requirements for the filing of a timely appeal.

Further action: RAM motion to reconsider filed 27 Nov 95; Effective date of decision stayed, 05 Dec 95; Appellant response to motion filed 08 Jan 96; Decision on Reconsideration 26 Feb 96; Decision of 17 Nov 95 affirmed.  To Decision »
95-0070 Halibut/Sablefish IFQ
Issued: 2/12/1996 | Effective: 3/13/1996
Appellant: CARLSON, Robert A.
Disposition: Vacated IAD
Abstract Terms:
    - Lease

Abstract:  Appellant claimed QS based on the sublease of a vessel. IAD denied claim for lack of proof of a lease. AO found that Appellant established he had an oral sublease with the lessee; that the lessee had a bareboat charter of the vessel. AO concluded that one who holds a valid sublease of a vessel should be considered as holding a lease of vessel for purposes of the IFQ program, and if sublease was in effect when legal landings were made, sublessee is a qualified person eligible for QS.  To Decision »
94-0012 Halibut/Sablefish IFQ
Issued: 1/31/1996 | Effective: 6/24/1996
Appellant: COYNE, John T.
Disposition: Vacated IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Appellant was in drug treatment program for entire application period and first learned of the application period and filing deadline on July 18, 1994 -- three days after deadline had passed. Appellant's application was filed 18 days late. The RAM Division denied the application as untimely. Original appeal decision vacated IAD. RAM moved for reconsideration. After a second oral hearing, AO issued decision on reconsideration vacating IAD. AO found that Appellant's addiction to heroin and resultant 9-month isolation in drug treatment program constituted extraordinary circumstances beyond Appellant's control that prevented him from learning of the filing deadline and submitting his RFA by deadline. AO applied doctrine of equitable tolling to stop the running of application period while Appellant was under disability, and concluded that RFA was timely filed as a matter of law. AO found that processing application when originally submitted would not have delayed implementation of the IFQ program.

Further action: Motion for Reconsideration by RAM Division granted 15 March 96; Decision on Reconsideration 24 May 96 - Supersedes Decision of 31 January 96 - Vacated IAD and ordered application accepted as timely. The Reconsideration reexamined the issue of whether Appellant's application was timely filed in light of additional evidence gathered at the Reconsideration hearing. The Appeals Officer [AO] found that Appellant's failure to file his RFA in a timely manner was due to his addiction to heroin and consequent isolation in a drug treatment program, which coincided with the running of the application period. AO also held that the doctrine of equitable tolling can be applied to the IFQ application period and that Appellant's unique circumstances support the tolling of the application period. AO further concluded that Appellant was diligent in submitting his application after learning of the filing deadline and that the acceptance of the "late" filing of Appellant's application would not harm or frustrate the Division's ability to implement the IFQ program.  To Decision »
95-0027 Halibut/Sablefish IFQ
Issued: 1/31/1996 | Effective: 1/31/1996
Appellant: BRAGER, Gerald I.
Disposition: Vacated IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Appellant claimed he mailed his RFA on or about June 30, 1994, from his business in Yakutat, as his customary practice. The RFA was sealed, stamped, set on his cabinet shelf, and picked up for delivery via the Sitka Sound Seafoods-Yakutat plant to the U.S. post office in Yakutat. On January 11, 1994, Appellant phoned the Division to inquire about his RFA. When told it had not arrived, he asked for another. When it had not arrived he phoned the Division again on January 23, 1994. Appellant had kept a duplicate copy of the RFA that he claims to have mailed on or about June 30, 1994.

AO found that: (1) Appellant would not have called the Division to inquire about his RFA, if he had kept the original RFA; (2) would not have asked for another RFA on January 23, 1994, if he had the original RFA; (3) there were no glaring inconsistencies in Appellant's testimony or notes of the events; (4) the IFQ notation on Appellant's June 28, 1994, office calendar (two days before Appellant claims to have mailed his RFA) shows Appellant was aware of the need to mail his RFA, and suggests that he followed through with it; (5) Appellant made duplicate copies of his RFA, and the fact that he did so suggests that the original was mailed; (6) the fact Appellant did not contact the Division until several months after the date he claims to have mailed his RFA, suggests that he had mailed it; and (7) it is plausible that Appellant's RFA was lost in the mail, given the means by which it was mailed. AO concluded that the facts taken as a whole show that it is more likely than not that Appellant took decisive action in the mailing of his RFA before the application deadline.  To Decision »
95-0106 Halibut/Sablefish IFQ
Issued: 1/31/1996 | Effective: 1/31/1996
Appellant: NORMAN, Patrick N.
Disposition: Vacated IAD
Abstract Terms:
    - Lease

Abstract:  Appellant claimed lease of the F/V OCEAN BEAUTY on his RFA. No proof was offered, and Appellant was sent an IAD. On appeal, Appellant submitted a lease agreement and affidavit of a lease of the vessel between Appellant and the owners during years 1986, 1987, and 1988. AO found that: (1) a lease and affidavit of a lease existed for the vessel in a QS qualifying year; and (2) that Appellant was, therefore, a "qualified person" for QS.   To Decision »
95-0097 Halibut/Sablefish IFQ
Issued: 1/30/1996 | Effective: 1/31/1996
Appellant: KUZMIN, Zahary (Estate)
Disposition: Vacated IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Deceased's widow, on behalf of his estate, claimed to have mailed RFA on 03 Jun 94 from Homer, AK. IAD denied application because RAM Division had no record of ever receiving the RFA. After an oral hearing, the AO found that: (1) RFA had been prepared with the assistance of broker Steve Callison, as were RFAs for other members of the Kuzmin family; (2) the Appellant's RFA and the others were all mailed together on 03 Jun 94, as claimed; (3) RFA had been misplaced or misfiled by RAM Division, or had been lost or misdelivered by the U.S. Postal Service. AO concluded that Appellant's RFA was timely filed.  To Decision »
95-0136 Halibut/Sablefish IFQ
Issued: 1/30/1996 | Effective: 1/31/1996
Appellant: HATTEN, Michael C.
Disposition: Vacated IAD in part, Affirmed in part
Abstract Terms:
    - Eligibility

Abstract:  RAM Division issued an IAD denying Appellant credit for halibut landings in 1987 because he had not proved he owned the vessel from which the landings were made. RAM also denied credit for landings that Appellant estimated he would have made in 1989, but for the EXXON VALDEZ oil spill. The IAD also stated that RAM could not disclose the total number of pounds credited to Appellant in 1988 because it had not secured a waiver of confidentiality from the person who had made the landings.

AO found that: (1) Appellant's abstract of title proved he owned the vessel at the time in question; (2) Appellant had already received QS credit for the 1988 landings he claimed; (3) the letter from Appellant's son constituted a waiver of confidentiality and that Appellant is now entitled to see the 1988 landings information; and (4) no credit can be given for landings not actually made due to a hardship, such as the EXXON VALDEZ oil spill.  To Decision »
95-0028 Halibut/Sablefish IFQ
Issued: 1/30/1996 | Effective: 2/1/1996
Appellant: BALTZ, Darius H.
Disposition: Vacated IAD
Abstract Terms:
    - Lease

Abstract:  Appellant claimed halibut and sablefish landings from the F/V VONNIE MARIE for the period 01 Aug 85 - 30 Oct 85 based on a claimed oral lease of the vessel from the owner. The landings in question and resulting QS had been issued to the owner. Because he transferred the QS before the appeal was filed, the owner was not made a party to the appeal. AO found that the Appellant had held an oral lease of the vessel during the period in question.  To Decision »
95-0060 Halibut/Sablefish IFQ
Issued: 1/30/1996 | Effective: 1/31/1996
Appellant: TEMPEST FISHERIES, INC
Disposition: Affirmed IAD
Abstract Terms:
    - Vessel
    - Eligibility

Abstract:  Appellant claimed on its RFA ownership of a vessel since March 1988. The RAM Division's records showed Appellant had no landings from the vessel during the QS qualifying years. The abstract of title showed ownership since June 29, 1990. Appellant submitted on appeal a State of Alaska fish ticket dated August 31, 1988. The abstract showed that at the time individuals owned the vessel, each with a 50 percent interest. AO found that: (1) Appellant did not own the vessel at the date of the fish ticket, and therefore, was not a "qualified person" for QS; and (2) credit for the landings shown on the fish ticket should be given to the individuals, 50 per cent each, conditioned upon eligibility.  To Decision »
95-0089 Halibut/Sablefish IFQ
Issued: 1/25/1996 | Effective: 1/26/1996
Appellant: DEXTER, Roderick
Disposition: Vacated IAD in part; Affirmed IAD in part
Abstract Terms:
    - Quota Share Amount

Abstract:  The RAM Division denied a portion of Appellant's claim to sablefish QS on the grounds that the pounds in question were harvested in state waters or that the landings were not substantiated. On appeal, the Appellant supplied a log book that showed the fish had been harvested in federal waters and that the statistical area noted on the fish ticket was erroneous. Appellant did not contest the denial of other pounds that were unsubstantiated.  To Decision »
95-0036 Halibut/Sablefish IFQ
Issued: 1/22/1996 | Effective: 1/26/1996
Appellant: ASZMUS, John J.
Disposition: Vacated IAD
Abstract Terms:
    - Eligibility

Abstract:  During the application process, the Appellant did not supply sufficient evidence of ownership of a vessel to establish he was a "qualified person" eligible for QS. On appeal, the Appellant submitted a U.S. Coast Guard abstract of title showing ownership of a vessel during the qualifying years, 1988-1990. The NMFS Official Record already showed that the vessel had qualified halibut landings. AO found that the Appellant is a qualified person under 50 C.F.R. 676.20(a)(1).   To Decision »
95-0013 Halibut/Sablefish IFQ
Issued: 1/17/1996 | Effective: 2/16/1996
Appellant: CADDEN, David A. v. LEVENHAGEN & PUGH
Disposition: Affirmed IAD
Abstract Terms:
    - Successor-in-Interest

Abstract:  Respondents owned a vessel from Mar 83 to Jun 89, then sold it to Appellant, who applied for QS for the entire period 1984-1989. Appellant claimed that vessel sale agreement transferred all fishing history and rights to him along with the vessel, and that RAM Division should enforce the agreement. Appellant also claimed to be the Respondents' successor-in- interest on the basis of his purchase of the vessel and fishing rights. IAD awarded Appellant QS for 1990; and awarded Respondents each one-half of the QS for 1984-1989.

AO found that (1) an applicant must succeed to a qualified person's entire interest (at lease as a business entity) to be considered a successor-in- interest under the IFQ program; (2) Appellant is not a successor-in-interest to Respondents; (3) NMFS had no responsibility to enforce private vessel sale agreement.  To Decision »
94-0003 Halibut/Sablefish IFQ
Issued: 11/30/1995 | Effective: 12/29/1995
Appellant: DANIELSON, Kurt E.
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  The Appellant's RFA was postmarked 16 July 95 and received by RAM 18 July 94. AO found that: (1) The Division mailed at least three RFAs to Appellant at his correct address, all of which were presumably received by 15 July 94; (2) Appellant's RFA was mailed to the Division on the day it was postmarked, 16 July 94, one day after the application filing deadline; (3) neither Appellant, nor anyone on his behalf, took decisive action by 15 July 94 to complete the filing of his RFA.  To Decision »
95-0084 Halibut/Sablefish IFQ
Issued: 11/8/1995 | Effective: 12/8/1995
Appellant: PROWLER PARTNERSHIP v. SAMUELSON, Gainhart
Disposition: Affirmed IAD
Abstract Terms:
    - Successor-in-Interest
    - Vessel
    - Eligibility
    - Landings

Abstract:  The RAM Division allocated one third of qualifying pounds of sablefish landings, made from a vessel during the period 5 Apr 85 through 9 June 89, to Respondent. RAM's IAD found that Respondent had owned a one third interest in the vessel, and denied these pounds to the partnership on the grounds that the partnership itself never owned the vessel. RAM also denied the partnership's claim to qualifying pounds landed from the vessel in 1987 and 1988 during longline surveys conducted by NMFS, which had chartered the vessel. RAM found that landings of fish harvested during the longline surveys were not conducted in compliance with IFQ regulations. RAM also denied Respondent's claim to one third of these qualifying pounds.

AO found that Appellant failed to provide conclusive evidence that it owned the vessel, and that Respondent owned a one third interest in the vessel as tenant in common; that an agreement to sell Respondent's ownership interest signed by the parties did not transfer Respondent's eligibility for QS; that Respondent is eligible for one third of qualifying pounds resulting from landings from the vessel during the period 5 Apr 85 through 9 June 89; that activities of the vessel while under contract with NMFS to perform longline surveys constituted scientific research, not fishing under the Magnuson Act; and that RAM properly denied allocation of QS based on these landings.

Further action: Appellant's motion to reconsider filed 13 Nov 95; Effective date of decision stayed, 05 Dec 95; Respondent response to motion filed 13 Dec 95; Appellant Points and Authorities filed 19 Dec 95; Respondent Response to Points and Authorities filed 08 Jan 96. Decision on Reconsideration (Part I) issued March 12, 1996; affirmed on review and effective March 14, 1996.

Decision on Reconsideration (Part II) issued 29 Sep 97; affirmed on review and effective 2 Oct 97; U.S. District Court appeals of both parts, described below after Decision on Reconsideration (Part I) and Decision on Reconsideration (Part II).  To Decision »
95-0051 Halibut/Sablefish IFQ
Issued: 10/28/1995 | Effective: 10/30/1995
Appellant: VOHS, David A., PIPER- HALER, Nina C.
Disposition: Affirmed IAD
Abstract Terms:
    - Lease

Abstract:  Appellant's both applied for QS under the IFQ program, claiming credit for landings on two vessels, the F/V PACIFIC LADY and the F/V MATIE W. Mr. Vohs claimed as lessee of the F/V PACIFIC LADY pursuant to a written lease, while Ms. Hahler argued that she was an implied or defacto co-lessee of the F/V PACIFIC LADY. Appellants operated the F/V MATIE W together between 1984 and 1986 to fish for halibut and sablefish. Ms. Hahler was the registered owner of the vessel. Mr. Vohs argued that he became co-owner of the M/V MATIE W by virtue of the work he performed on the vessel, and because the vessel was listed as jointly owned property in a property settlement agreement. AO found: that the written lease was conclusive evidence that Mr. Vohs was sole lessee of the F/V PACIFIC LADY from 13 Jan 85 until the vessel was lost on or about 4 Sept 85; and that Ms. Hahler was the sole owner of the F/V MATIE W from 1984 through 1986.

This decision established that a written lease agreement is conclusive evidence of an agreement between the signatories only, and excludes other parties claiming status as partner or co-lessee through their performance or control of the vessel during fishing operations.  To Decision »
95-0101Halibut/Sablefish IFQ
Issued: 10/13/1995 | Effective: 10/19/1995
Appellant: OCEAN CREST FISHERIES, INC. v. MCKEE, Barry L.
Disposition: Affirmed IAD
Abstract Terms:
    - Lease

Abstract:  An IAD issued on 10 Apr 95 allocated QS to Respondent, who had demonstrated conclusively that he held a valid lease for the vessel. A document captioned "Bare Boat Charter" was signed by the parties on 9 Jan 90 and notarized. Appellant argued that the true relationship between the parties was not that of lessor/lessee, and that the agreement was invalidated by alleged breaches by Respondent. AO found that: (1) the parties had executed a valid written agreement entitled "BARE BOAT CHARTER" on 9 Jan 1990, and that this agreement constituted a vessel lease; (2) Respondent operated the vessel for the full term of the agreement; (3) the agreement was in effect from 1 Feb 90 through 15 Oct 90; (4) Respondent qualified as a person to whom qualifying pounds of halibut and sablefish made from the vessel should be allocated. This decision established that breaches of a written agreement do not invalidate the document or its status as conclusive evidence of the existence of a lease. This decision announced the following rules:
  1. The question whether the written agreement constitutes a vessel lease under the IFQ program is a legal question, not a factual question. It is based on an examination of the provisions in the document. Only if the document is found not to constitute conclusive evidence of a vessel lease will the Appeals Officer consider the actual conduct of the parties in deciding whether, nonetheless, a lease existed.
  2. Breaches of a written agreement do not invalidate the document or its status as conclusive evidence. Evidence of a breach could, however, be relevant to the question of when the lease was in effect and, particularly, when the lease terminated. Such a breach would have to fundamentally change the nature of the relationship between the parties or evidence a clear intent to terminate the agreement.
  To Decision »
95-0104 Halibut/Sablefish IFQ
Issued: 10/11/1995 | Effective: 10/18/1995
Appellant: TREINEN, Charles W. v. SCUDDER, Bradford C.
Disposition: Affirmed IAD
Abstract Terms:
    - Lease

Abstract:  Appellant was denied allocation of QS in a 10 May 95 IAD which determined that respondent held a valid lease for the F/V FRED J for the period of 26 Aug 85 to 15 May 86. A second IAD was issued on 19 July 95 stating that a mutual agreement between the parties extended the lease through 31 Aug 86. RAM Division revoked QS that had been issued to the Appellant and awarded it to the Respondent. Appellant maintained that the original written lease was not extended by agreement. Respondent presented evidence showing that he continued to perform under the written lease beyond the term stated in the lease. AO found that: (1) the parties entered into a written lease agreement dated 24 Aug 1985; and (2) the agreement was initially in effect from 26 Aug 85 to 15 May 86, then was extended by the parties until at least 29 Aug 86. The decision established the following analysis for cases involving written leases:
    Where an applicant has submitted a written document said to be a vessel lease, the appropriate inquiry on appeal is whether that document on its face actually constitutes a vessel lease for purposes of the IFQ program.

    The inquiry begins with an examination of the provisions in the document itself, rather than with other evidence concerning the intent or actual conduct of the parties. In the absence of evidence challenging the validity of the agreement, a document that contains provisions consistent with a vessel lease is conclusive evidence of the existence of a vessel lease between the parties, and the inquiry on that question need go no further. However, evidence that the agreement was invalid (void) ab initio, such as evidence of fraud, duress, coercion, or incapacity, is always relevant and should be considered.

    If the Appeals Officer determines that a valid vessel lease existed, then the next question is to determine when the lease was in effect. In examining that question, the Appeals Officer will presume that the lease was in effect for the term stated in the lease, unless contrary evidence is presented.
  To Decision »
94-0011 Halibut/Sablefish IFQ
Issued: 9/18/1995 | Effective: 10/18/1995
Appellant: SAMUELSON & VASILEFF
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Appellants, two Anchorage physicians, have a partnership in which Samuelson is the managing partner and Vasileff is the silent partner. Samuelson was out of the United States on sabbatical from September 1, 1993, through August 15, 1994. Before leaving Alaska, he hired a bookkeeper and instructed her to forward all mail relating to the partnership's fishing vessel to Vasileff. He argued that she failed to forward any mail, including Request for Application (RFA) forms sent to him by the Restricted Access Management (RAM) Division. Samuelson also stated in the appeal filing that neither of the partners received any notice of the IFQ program and application deadline until he heard about the program on the radio in October 1994. The partnership's RFA was ultimately filed in November, 16 weeks after the July 15, 1994 filing deadline, and was denied by RAM Division as untimely filed. AO found that: 1) the RAM Division was not required to give the Appellants actual notice of the filing deadline; 2) the Appellants should be charged with constructive notice because Vasileff was residing in Anchorage during the entire application period; and 3) the bookkeeper's alleged negligence is imputed to the partners because she was their agent.   To Decision »
95-0007 Halibut/Sablefish IFQ
Issued: 7/10/1995 | Effective: 7/19/1995
Appellant: WATSON, Gene E.
Disposition: Vacated IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Although Appellant maintained he submitted a timely application, an original Request For Application (RFA) was not in the agency's file and there was no record it was received by the agency. The agency's file contained a photocopy of the RFA, signed May 25, 1994 and received October 24, 1994 after the July 15, 1994 filing deadline. The photocopy was submitted at the advice of the agency, along with an affidavit stating when Appellant had filed the RFA. Appellant continued contact with the agency on the status of his application until it was denied as untimely by an Initial Administrative Determination. Appellant submitted notes of telephone conversations with the agency and testimony by the accounting firm which handled his business correspondence and bookkeeping as evidence of "decisive action" to complete the filing of an RFA.

AO found: (1) an Appellant is entitled to try to prove "decisive action" to complete the filing of an RFA or application by the filing deadline, even where the agency has no record of ever receiving it; (2) in light of the absence of conclusive evidence of the date of mailing, the totality of the circumstances will be reviewed to determine whether it is more likely than not that an RFA was mailed on or before the filing deadline; (3) it is plausible that an RFA could have been sent by mail and never received; and (4) in reviewing other than conclusive evidence, internal consistency; consistency with the record in all details relating to telephone conversations and the receipt of documents from the agency; and consistency with what one would expect to find if the facts were as an Appellant claims are important.  To Decision »
95-0094 Halibut/Sablefish IFQ
Issued: 6/28/1995 | Effective: 7/28/1995
Appellant: HUTCHENS, Jimmy D.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant established that he made halibut landings in 1988 and 1990 and was awarded QS based on those landings. Appellant conceded he made no landings in 1989 but maintained he would have fished for halibut in 1989 but for the EXXON VALDEZ oil spill. Appellant requested an allocation of additional qualifying pounds for 1989 in an amount equal to the average of his halibut landings in 1988 and 1990. Appellant noted that the regulatory provision allowing applicants to drop the two worst years in the base period of 1984 through 1990 does not help applicants with five or fewer years of halibut fishing history.

AO found that: (1) the fact that an applicant has fished five or fewer years during the base period does not authorize an allocation to the Appellant of additionally qualifying pounds in a year in which he had no landing; and (2) consistent with Kenneth M. Adams, IFQ program regulations, do not allow the use of average landing estimates of as a basis for additional qualifying pounds.  To Decision »
95-0024 Halibut/Sablefish IFQ
Issued: 6/27/1995 | Effective: 7/27/1995
Appellant: CRUMP, William E.
Disposition: Affirmed IAD
Abstract Terms:
    - Eligibility

Abstract:  Appellant was the registered owner of two fishing vessels during part of the IFQ qualifying period and acknowledged that during this period he made no landings aboard either vessel. Appellant argued that he should be considered a qualified person because he made deliveries of halibut in 1986, 1987, and 1991, and because he would have landed halibut in the intervening, qualifying years but for the EXXON VALDEZ oil spill.

AO found that, consistent with the decision in Kenneth M. Adams, the IFQ regulations do not allow hypothetical landings to be used for purposes of establishing eligibility.   To Decision »
94-0010 & 95-0006 Halibut/Sablefish IFQ
Issued: 6/6/1995 | Effective: 6/9/1995
Appellant: SEATER, Ronald J. v. SEATER & SEATER PARTNERSHIP
Disposition: Vacated IAD
Abstract Terms:
    - Lease

Abstract:  Both Appellants applied for QS under the IFQ Program. Ronald Seater applied individually as a lessee. Lee Seater applied on behalf of the partnership (consisting of herself and Ronald Seater) that owned the vessel. Because of conflicting claims as to the existence a lease, both applications were denied in the IAD. Appellant Seater & Seater claimed that an annual ten percent maintenance fee was "agreed to" (after intimidation) to reimburse the partnership for the cost of vessel repairs, equipment, replacement, and general wear and tear. Appellant Ronald Seater characterized the agreement as a lease fee. No written lease was executed by the parties.

AO found: (1) no need to hold a hearing to determine factual questions not relevant to the appeal; (2) Appellant Ronald Seater's operation of the partnership vessel during halibut seasons 1988-90 met the test for a lease established in John O'Rourke, and was on his own behalf as a lessee of the partnership; and (3) that the risk of loss of a vessel engaged in commercial fishing is inherent to ownership; whether a vessel is insured or not is not relevant to the question of whether a lease exists for purposes of the IFQ program. This decision established that relatively little or no weight will be given in making decisions on IAD appeals to non-empirical evidence (such as subjective intent) and to questions that appear basically equitable in nature.   To Decision »
95-0018 Halibut/Sablefish IFQ
Issued: 5/18/1995 | Effective: 5/23/1995
Appellant: O'ROURKE, John L. V. RIDDLE, Philip C.
Disposition: Affirmed IAD
Abstract Terms:
    - Lease

Abstract:  Appellant filed for QS as a vessel owner, but did not complete the RFA section indicating a vessel lease during the qualifying period. Respondent filed for QS as a lessee. Appellant submitted no evidence during a 90-day RAM review period to support his assertion that Respondent was a "hired skipper," not a lessee. Respondent submitted considerable supporting evidence and was awarded qualifying pounds by RAM. Appellant requested on appeal that he be awarded the pounds. Appellant identified, but failed to provide, documents supporting his appeal by the date specified in an Order for Immediate Production of Documents. Respondent submitted evidence supporting entrepreneurial activity consistent with a lease.

AO found that: (1) Appellant had been afforded adequate opportunity to supplement his appeal and that no emergency situation beyond the reasonable control of Appellant had been asserted to justify an extension; (2) found that additional information identified in a telephone conversation was not pivotal; (3) denied a constructive motion to extend the time for submission of documents and rescinded an order and notice of hearing; (4) noted that in two-party cases in which an IAD has denied one party and made an award to the other, the burden of proof on appeal is on the party who seeks to change the status quo; (5) found that Appellant had not met his burden of proving the IAD was in error; and (6) found that a lease existed from the circumstances of the operation of the vessel and the characteristics of a "vessel lease" as the term was used by the North Pacific Fishery Management Council in establishing the IFQ program. This decision established that a business arrangement between parties need not rise to the level of a bareboat charter to qualify as a vessel lease under the IFQ program. A vessel lease can be proven by showing that an individual who made legal landings acted like an entrepreneur in controlling and directing the fishing operations that produced the landings.  To Decision »
94-0005 Halibut/Sablefish IFQ
Issued: 4/20/1995 | Effective: 4/28/1995
Appellant: SUGIURA, Keith T.
Disposition: Vacated IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Appellant testified that an RFA sent by RAM on or about 15 June was mailed to him by his wife while he was fishing in the Bering Sea. He received the RFA on 10 July 94; and signed, but mistakenly dated it 12 June 94 (rather than 12 July). The RFA was postmarked on 20 July 94; and received by RAM on 22 July 94. Appellant maintained that delay in receipt by RAM was due to the need to forward mail from the fishing vessel by means of a tender (on 12 or 13 July), onwards to Port Moller, and, by air, to a Post Office in Cold Bay. AO: (1) found that Appellant's surrender of his mail to the tender was the functional equivalent of personally depositing the mail with the United States Postal Service, constituting a "decisive action to complete filing of this application" by the 15 July deadline date; and (2) ordered RAM to process Appellant's application as if it had been filed in a timely fashion.   To Decision »
94-0002 Halibut/Sablefish IFQ
Issued: 3/22/1995 | Effective: 4/21/1995
Appellant: PEDERSON, Roy O. (Decision on Review)
Disposition: IAD Affirmed
Abstract Terms:

Abstract:    To Decision »
95-0004: Halibut/Sablefish IFQ
Issued: 3/22/1995 | Effective: 4/19/1995
Appellant: ADAMS, Kenneth M.
Disposition: Affirmed IAD
Abstract Terms:
    - Quota Share Amount

Abstract:  Appellant requested a recalculation of his quota share to include hypothetical landings in 1989, the year of the EXXON VALDEZ oil spill. QS is calculated from the highest total legal landings of halibut during five of seven years of eligibility. Appellant claimed that except for the oil spill he would have expected to have made halibut landings equal to the average landings of a class "F" vessel, the vessel class he purchased in 1987 and landed from in 1988. AO found that: (1) the North Pacific Fishery Management Council considered the effects of the T/V EXXON VALDEZ oil spill when the IFQ program was under development and made provision for it and other hardships in its calculation formula; (2) there was no precedent for an award of QS under the IFQ Program based on hypothetical rather than actual landings; and (3) granting discretionary relief would be inconsistent with IFQ regulation and would frustrate its purpose.  To Decision »
94-0002 Halibut/Sablefish IFQ
Issued: 3/22/1995 | Effective: 4/21/1995
Appellant: PEDERSON, Roy O.,
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Appellant's RFA was postmarked three days after the 15 July 94 filing deadline and received by RAM 20 July. Appellant claimed he dropped envelope in mailbox outside local Post Office on the filing deadline and that the Post Office made an error in postmarking the envelope. Appellant noted that this same Post Office had erroneously postmarked a previous mailing of his in 1984. AO found: (1) that in all likelihood the envelope was deposited in the mail box on Saturday 16 July after the afternoon collection, and was properly picked up and postmarked on Monday 18 July; and (2) there was insufficient evidence to show that the Post Office had erred in its postmarking. AO recommended that NMFS consider whether any change should be made in the policy and rule that late filling permanently bars an applicant from receiving initial Quota Share under the IFQ Program.

Regional Director action: Affirmed appeals decision, 21 Apr 95. RD declined to grant discretionary relief or amend the policy on untimely filing as a permanent ban, stating that it was "wholly inappropriate" for Appeals Officer to recommend that Regional Director grant discretionary relief.  To Decision »
94-0008 Halibut/Sablefish IFQ
Issued: 3/21/1995 | Effective: 4/21/1995
Appellant: RAMOS, George M.
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Appellant's application was received by RAM via fax on Sunday 17 July 95 during the weekend following the Friday deadline of 15 July 1995. Appellant claimed that his application was untimely filed because he did not receive an RFA form from RAM until 17 July. AO: (1) noted that delivery of the RFA by fax during the period between the close of business on Friday and the opening of business on Monday would not have caused the agency any delay in processing the RFA; (2) found that Appellant's claim was not a basis for relief because "decisive action" to complete the filing was not taken by 15 July; (3)recommended that NMFS grant discretionary relief to the Appellant nonetheless; and (4) further recommended that NMFS consider whether any change should be made in the policy and rule that the late filing of an application permanently bars the applicant from receiving initial Quota Share under the IFQ Program.

Further Action: Regional Director affirmed appeals decision, 21 Apr 95. Declined to grant discretionary relief or to amend policy on untimely filing as a permanent ban, stating that it was "wholly inappropriate" for Appeals Officer to recommend that Regional Director grant discretionary relief.  To Decision »
95-0002 Halibut/Sablefish IFQ
Issued: 1/30/1995 | Effective: 1/30/1995
Appellant: TISON, Kenneth F.
Disposition: Vacated IAD
Abstract Terms:
    - Evidence
    - Untimely Applications and Appeals

Abstract:  Appellant faxed RFA to RAM on the last day for filing. RAM denied the filing as untimely for lack of an original signature. AO found that (1) there was no regulatory requirement that applications bear an original signature; (2) insistence on an original signature for purposes of meeting the 15 July application filing deadline was not based on a regulation; (3) RAM's desire to have an original signature to validate an application was a proper agency concern, but not a time-critical consideration; (4) agency regulations do not provide that applications sent to the agency via fax by the deadline will be rejected as untimely; (5) there is no written agency policy addressing the use of facsimile for purposes of meeting the deadline; (6) it would be arbitrary and capricious and contrary to IFQ appeals regulations for the agency to relax the deadline for mailed materials under its "postmark" interpretation, while rejecting as untimely applications sent by fax that were received by the deadline; (7) Appellant has, as a separate ground of relief, cured the "original signature" deficiency in his earlier application; and (8) the RFA should now be considered as timely filed.  To Decision »
94-0009 Halibut/Sablefish IFQ
Issued: 1/17/1995 | Effective: 1/20/1995
Appellant: WHITE, Michael B.
Disposition: Vacated IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Appellant testified he hand-delivered RFA on 30 June 94 to a tender in the Bering Sea. The Captain of the tender and its parent company confirmed that a stamped envelope received from Appellant was carried by company helicopter and delivered to a U.S. Post Office. The Postal Service sent the envelope to Appellant's California with no postmark and marked "Return To Sender" because there was no stamp on the envelope. The envelope was mailed to RAM a second time from Sacramento, California, with a postmark of 18 July 94. RAM Division rejected the RFA as late because it did not have a postmark of July 15 or earlier. AO found that: (1) envelope could not have been returned from Western Alaska and re-mailed from Sacramento on 18 July unless it had been originally placed in the mails before 15 July; (2) the stamp likely became detached from the envelope while in the custody of the U.S. Postal Service; (3) Appellant met the 15 July application deadline and is entitled to have his RFA considered as timely filed. AO stated that requirement of a postmark by 15 July is not a substantive rule, but a rule of evidence. Postmark is only one type of proof that deadline was met. Filing deadline requires that applicants either deliver RFA to the agency by 15 July 94 or take other decisive action by that date to complete the filing, such as by depositing the RFA in the mail.   To Decision »
94-0007 Halibut/Sablefish IFQ
Issued: 1/10/1995 | Effective: 1/13/1995
Appellant: BROSMAN, Wayne H.
Disposition: Vacated IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Appellant mailed a completed RFA on 30 September 94. The RFA was received in RAM on 3 October 94, eleven weeks after the application deadline. Appellant stated in support of his appeal that he was not notified by either of his former business partners about the IFQ program until after the filing deadline. AO found: (1) that failure of Appellant's business partners to notify Appellant did not relieve him of duty to comply with filing deadline; (2) Appellant is deemed to have complied with the filing deadline because former partners timely notified RAM Division of his potential eligibility during the application period and because the division would have given him individualized notice if they had been operating optimally.  To Decision »
94-0004 Halibut/Sablefish IFQ
Issued: 12/23/1994 | Effective: 3/2/1995
Appellant: TONY, Jimmy
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Applications and Appeals

Abstract:  Appellant postmarked RFA 27 July 94 at Nightmute, AK. The RFA was received by RAM Division on 4 August 94. Appellant stated in his letter of appeal that he delayed sending in the RFA because he was looking for fish tickets showing landings during one or more of the base years. The AO found: (1) that Appellant's letter showed that the Division's determination has a direct and adverse effect on Appellant (Appellant made no specific allegation on this point in his letter of appeal); (2) that a hearing is not required where only allegation made, if proven, would not constitute a basis for relief; and (3) that Appellant stated no grounds for obtaining relief that would be consistent with the basic meaning of the rule imposing 15 July 94 as the deadline for applications.  To Decision »
94-0001 Halibut/Sablefish IFQ
Issued: 9/26/1994 | Effective: 3/2/1995
Appellant: BUEHNER, Keith A.
Disposition: Affirmed IAD
Abstract Terms:
    - Untimely Claim

Abstract:  Appellant postmarked RFA four days after filing deadline. He claimed a separation denied him access to his RFA form and personal papers, and thereby caused him to file late. AO found that additional blank forms were readily available, and that necessary information was in appellant's personal knowledge or readily obtainable from government agencies.  To Decision »