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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 en