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National Marine Fisheries Service, Alaska Regional Office

NOAA Fisheries Appeals Office - Alaska Region

Administrative Appeals - DIGEST OF DECISIONS


Administrative Appeals
00-0015 Groundfish/Crab LLP
Issued: 12/31/2002   |   Effective: 01/30/2003
Appellant: DARJEN, INC
Disposition: Affirmed IAD
Abstract Terms:
The issue was whether Appellant qualified for an LLP groundfish license endorsement for Bering Sea groundfish, based on the harvest of Pacific cod for crab bait aboard the F/V ALASKA SPIRIT. AO found that the F/V ALASKA SPIRIT did not make a documented harvest because the harvest of Pacific cod for crab bait was not recorded on a state fish ticket, Federal catch report, or any other document that shows the F/V ALASKA SPIRIT harvested the fish commercially. AO concluded that Appellant did not qualify for an LLP groundfish license endorsement for the Bering Sea, based on the harvest of Pacific cod for crab bait aboard the F/V ALASKA SPIRIT.
09-0054 Crab Rationalization
Issued: 12/30/2009   |   Effective: 12/30/2009
Appellant: ATLANTICO, INC.
Disposition: Affirmed
Abstract Terms:
95-0056 Halibut/Sablefish IFQ
Issued: 12/30/1996   |   Effective: 01/29/1997
Appellant: STELLING, John H. v. BARRIE, Darwin D.
Disposition: Vacated IAD
Abstract Terms:
The RAM Division denied Appellant's application because he did not prove that he owned or leased a vessel that made legal landings during the qualifying years. On appeal, Appellant produced a state fish ticket showing landings made from a vessel on June 6, 1990. The U.S. Coast Guard abstract of title showed that Appellant was the owner of the vessel during that time. Respondent was joined in Appellant's appeal and notified of a conflict between he and Appellant, given that the QS he had received was for the landings made from the vessel on that date. The Respondent's right to transfer the QS was suspended. He was given 30 days to respond to the notice of joinder. He did not reply to the notice. Nor did Respondent dispute Appellant's claim of ownership of the vessel at the time of the related landings.

AO found that Appellant should receive the QS in question, given the superior proof of the abstract of title for the vessel.
02-0010 Halibut/Sablefish IFQ
Issued: 12/29/2004   |   Effective: 01/28/2005
Appellant: COULTER, Mary Ann
Disposition: IAD Vacated
Abstract Terms:
In January 2002, the Appellant purchased halibut quota shares, and 31 pounds of underage "IFQ allocation pounds not fished" from the 2001 season. By regulation, up to 10 percent of a QS holder's annual IFQ allocation can be carried over and used in the following fishing year. RAM approved the transfer of QS and underage to the Appellant, issued a 2001 IFQ permit to the Appellant, opened a 2001 IFQ account for the Appellant, and deposited the 31 pounds of underage into the account. Then, on January 31, 2002, RAM allocated IFQ pounds to the Appellant for the coming fishing season. RAM adjusted the allocation by adding 3 pounds of underage, which represented 10 percent of the Appellant's 2001 account that had not been fished. The Appellant argued that all 31 pounds of underage should have been added to her 2002 IFQ account, but RAM denied that claim in the IAD.

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

The Appeals Officer also stated that RAM's application of the underage provision improperly discouraged QS transfers between the end of the fishing season and the calculation of the next year's IFQ allocation. Finally, the Appeals Officer concluded that the Appellant was entitled to have the 2001 underage carried over to the 2005 season because that was her first opportunity to benefit from the final determination of her claim.
02-0047 Groundfish/Crab LLP
Issued: 12/28/2004   |   Effective: 01/27/2005
Appellant: MGF FISHERIES, INC.
Disposition: IAD Affirmed
Abstract Terms:
MGF is not eligible to receive an LLP groundfish license with Bering Sea and Aleutian Islands endorsements. First, MGF did not make the documented harvests required in 50 C.F.R. 679.4(k)(4) for an LLP groundfish license with Bering Sea or Aleutian Islands endorsements in either the general qualification period [GQP] or endorsement qualification period [EQP]. MGF stated that it caught Pacific cod in 1991 and 1993 and used it for crab bait. These harvests are not commercial fishing because they did not involve a transaction between two entities. Therefore, these harvests cannot be the basis for MGF to receive an LLP commercial fishing license.

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

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

MGF proposed, as a reasonable accommodation, that an applicant should receive an LLP license, if the applicant can prove that, but for a disability, the applicant would have made the harvests necessary for the LLP license sought by the applicant. This is not a reasonable modification of the LLP because it waives an essential requirement of the LLP: ownership of a vessel which made the harvests required for an LLP groundfish license with Bering Sea and Aleutian Islands endorsements either by the standard criteria for this license at 50 C.F.R. 679.4(k)(4)(i) or the unavoidable circumstance criteria at 50 C.F.R. 679.4(k)(8)(iv).
96-0077R Groundfish/Crab Moratorium
Issued: 12/28/1999   |   Effective: 12/31/1999
Appellant: MURA, Merek (Reconsideratiion)
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit with a length overall (LOA) of 48 feet, based on the LOA of his original qualifying vessel, the F/V BOBOLINK. Under 50 C.F.R. 679.2, a vessel's "original qualifying LOA" is the "LOA of the original moratorium qualifying vessel on June 24, 1992." If requested by RAM, an applicant is required to produce reliable documentation of a vessel's original qualifying LOA on June 24, 1992, such as a vessel survey, builder's plan, a state or Federal registration certificate, fishing records, etc. See, 50 C.F.R. 679.4(c)(6). RAM rejected Appellant's claim for a vessel moratorium qualification and permit of 48 feet because its records showed the LOA of the F/V BOBOLINK was 42 feet on June 24, 1992. Although RAM requested him to do so, Appellant did not document his claim.

AO found that Appellant's assertion was not "reliable documentation," and that his assertion was not sufficient evidence to overcome the presumption of RAM's records. AO found that the LOA of the BOBOLINK was 42 feet as of June 24, 1992. Therefore, Appellant was not entitled to a vessel moratorium qualification and permit with an LOA of 48 feet.
00-0006 Groundfish/Crab LLP
Issued: 12/27/2002   |   Effective: 01/27/2003
Appellant: OPHEIM, Chris R., Sr.
Disposition: Affirmed IAD
Abstract Terms:
The issue was whether Appellant filed a timely application for an LLP groundfish license. AO found that (1) Appellant filed an LLP application after the application deadline; (2) RAM had mailed an LLP application form to Appellant's last known address before the application deadline; and (3) Appellant was physically, mentally, emotionally, and legally able to apply for an LLP license during the LLP application period. Appellant asserted that he had lost his vessel and livelihood as a commercial fisherman at least four years before the LLP application deadline; he had moved his family to a different city while caring for an aging parent; he suffered from depression at least two years before the LLP application deadline; his wife suffered from depression during the LLP application period; and he is currently underemployed and in need of financial aid. AO concluded that (1) RAM had complied with its regulatory duty to send an LLP application to Appellant; (2) the untimely filing of Appellant's LLP application could not be excused by the doctrine of equitable tolling; and (3) NMFS was not required to accept Appellant's application for an LLP groundfish license as timely filed.
95-0078 Halibut/Sablefish IFQ
Issued: 12/26/1996   |   Effective: 01/27/1997
Appellant: EASTERLING, James D.
Disposition: Vacated IAD
Abstract Terms:
RAM Division denied Appellant's application for QS because he did not adequately prove that he owned or leased a vessel during the qualifying years. The QS that Appellant applied for was issued by RAM to the vessel owner, who had not answered the question on his RFA as to whether he had leased the vessel. The vessel owner subsequently transferred the concerned QS so he was not made a party to this appeal. On appeal, Appellant stated that the vessel owner had leased the vessel to him and that the word "lease" was specifically used; however, they disagreed during testimony as to whether or not their arrangement could be characterized as a lease.

AO found that: (1) the parties, at relevant times prior to the IFQ program, characterized their arrangement for Appellant's use of the vessel as a lease; (2) the vessel owner admitted that Appellant was not a hired skipper or employee. A settlement sheet, contemporaneous with Appellant's use of the vessel, that showed the vessel owner was paid for the "lease" of the vessel, was shown to the vessel owner at the time of payment; (3) on several occasions prior to this appeal, the vessel owner could have denied that a lease existed and did not; (4) the arrangement between the parties satisfied six of the seven factors used to ascertain the existence of a vessel lease; and, it was significant that the vessel owner did not hire or employ the Appellant.
94-0004 Halibut/Sablefish IFQ
Issued: 12/23/1994   |   Effective: 03/02/1995
Appellant: TONY, Jimmy
Disposition: Affirmed IAD
Abstract Terms:
Appellant postmarked RFA 27 July 94 at Nightmute, AK. The RFA was received by RAM Division on 4 August 94. Appellant stated in his letter of appeal that he delayed sending in the RFA because he was looking for fish tickets showing landings during one or more of the base years. The AO found: (1) that Appellant's letter showed that the Division's determination has a direct and adverse effect on Appellant (Appellant made no specific allegation on this point in his letter of appeal); (2) that a hearing is not required where only allegation made, if proven, would not constitute a basis for relief; and (3) that Appellant stated no grounds for obtaining relief that would be consistent with the basic meaning of the rule imposing 15 July 94 as the deadline for applications.
02-0043 Groundfish/Crab LLP
Issued: 12/22/2004   |   Effective: 02/22/2005
Appellant: ARCTIC BARUNA, LLC
Disposition: IAD Affirmed
Abstract Terms:
The IAD denied the Appellant's claim to an LLP crab license based on the fishing history of the F/V PACIFIC APOLLO, a vessel that sank in October 1990. RAM denied a crab license because the vessel (or a replacement vessel) lacked a documented harvest during any endorsement qualification period (EQP) and during the recent participation period (RPP). On appeal, the Appellant claimed it qualified for two area/species endorsements and a license under the EQP unavoidable circumstance provision, 50 C.F.R. 679.4(k)(8)(iv). Although the Appellant owns the fishing history of three other vessels, none of them could be considered a replacement vessel because each vessel's EQP fishing history had already been used to qualify for its own LLP crab license. The Appeals Officer concluded that neither the general qualification period (GQP) nor the EQP fishing history of a vessel can be reused to create more than one license. The Appeals Officer concluded that the F/V PACIFIC APOLLO's fishing history remained incomplete and August 2, 2005 does not constitute an LLP qualifying fishing history. Therefore, the vessel did not qualify for a transferable LLP crab license under the unavoidable circumstance provision. The Appeals Officer also stated that under the OAA decision in Bella K of Seattle, Inc., Appeal No. 02-0006 (Mar. 25, 2004), the Appellant was a recent participant, but could not meet the RPP requirements because the F/V PACIFIC APOLLO lacked an LLP qualifying fishing history.

Further Action: In a Decision on Reconsideration, the Appeals Officer found that a vessel owned by the Appellant's predecessor companies did not make the requisite documented harvests to qualify the Appellant for an LLP crab license under the unavoidable circumstance provision. The Appeals Officer affirmed the Decision.
02-0008B Groundfish/Crab LLP
Issued: 12/20/2006   |   Effective: 01/19/2007
Appellant: DONOVICK, Mark
Disposition: Affirmed
Abstract Terms:
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.
03-0020 Groundfish/Crab LLP
Issued: 12/20/2006   |   Effective: 12/19/2006
Appellant: HARLAN, Joseph W.
Disposition: Affirmed
Abstract Terms:
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.
00-0004 Groundfish/Crab LLP
Issued: 12/18/2000   |   Effective: 01/17/2001
Appellant: R.J. FIERCE PACKER, LLC
Disposition: Vacated IAD
Abstract Terms:
Appellant claimed it was entitled to an LLP groundfish license based on its ownership of the fishing history of the F/V YUKON QUEEN, a qualifying vessel for the LLP. On December 28, 1994, New Yukon Queen L.P. [New Yukon] bought the F/V YUKON QUEEN from Seattle-First National Bank [Sea-First]. RAM issued New Yukon a moratorium qualification based on the fishing history of the F/V YUKON QUEEN. On May 2, 1997, New Yukon's creditors placed the company into involuntary bankruptcy, and on October 2, 1998, the United States Bankruptcy Court in Seattle authorized New Yukon to sell the moratorium qualification and fishing history of the F/V YUKON QUEEN to Appellant. Previously, on September 17, 1998, the NMFS had awarded a moratorium qualification to Yukon Queen Fisheries, Ltd. [Yukon Queen], based on the same fishing history of the F/V YUKON QUEEN that Appellant had purchased from New Yukon's Bankruptcy Trustee. [Yukon Queen owned the F/V YUKON QUEEN until Sea-First foreclosed on loans it had made to Yukon Queen; later, Sea-First sold the vessel to New Yukon.] When Appellant applied for an LLP groundfish license based on the history of the F/V YUKON QUEEN, RAM denied its application on the grounds that Appellant did not own the portion of the F/V YUKON QUEEN's fishing history that would entitle Appellant to an LLP license.

AO concluded that (1) as a matter of law, Appellant was entitled to be treated as an owner of the entire fishing history of the F/V YUKON QUEEN up until it was sold by the Bankruptcy Trustee on February 9, 1998; (2) Appellant was an innocent third party purchaser for value of the fishing history of the F/V YUKON QUEEN until it was sold by the Bankruptcy Trustee; and (3) Appellant was an eligible applicant for an LLP license based on the entire fishing history of the F/V YUKON QUEEN up until February 9, 1998.
95-0119 Halibut/Sablefish IFQ
Issued: 12/18/1997   |   Effective: 02/20/1998
Appellant: BAIRD, Wesley G.
Disposition: Affirmed IAD
Abstract Terms:
After receiving quota shares, the Appellant claimed that he was entitled to credit for additional landings. RAM denied the claim for additional pounds for lack of evidence. On appeal, Appellant submitted 12 fish tickets, a log book, and tax records to prove his claim. The AO found that Appellant had already received credit for all the landings on the fish tickets. The AO found the log book and tax records were insufficient evidence to establish that any additional pounds were legally harvested and landed.

Further action: Appellant submitted and withdrew a motion to reconsider. As a result, the effective date of the decision was delayed.
05-0003 Groundfish/Crab LLP
Issued: 12/17/2007   |   Effective: 12/17/2007
Appellant: HAL LEWIS
Disposition: Vacated
Abstract Terms:
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.
03-0028 Groundfish/Crab LLP
Issued: 12/17/2007   |   Effective: 01/16/2008
Appellant: SEABECK, Kevin
Disposition: Affirmed
Abstract Terms:
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.
95-0093 Halibut/Sablefish IFQ
Issued: 12/17/1998   |   Effective: 01/19/1999
Appellant: JENKIN, James H.
Disposition: Affirmed IAD
Abstract Terms:
Appellant's application for an additional 403 qualifying pounds of halibut was denied by RAM because of insufficient evidence. An application was sent to Appellant, which showed that he was eligible for 2,556 total qualifying pounds. Appellant amended the application and claimed 3,399 total qualifying pounds, which is a difference of 843 pounds. With his amended claim, Appellant submitted state fish tickets showing only 440 additional pounds. In July 1996, Appellant was ordered to produce evidence to support his claim to 403 additional qualifying pounds. Appellant did not produce any additional evidence.

AO found or concluded that: (1) there was no evidence in the record that landings of an additional 403 qualifying pounds of halibut were made from a vessel owned or leased by Appellant; and (2) Appellant was not eligible to receive credit for additional halibut landings.
95-0068 Halibut/Sablefish IFQ
Issued: 12/15/1997   |   Effective: 01/14/1998
Appellant: NOLAND, Harry A.
Disposition: Vacated IAD
Abstract Terms:
Appellant applied for quota shares and RAM denied his application on the grounds that he did not own a vessel from which qualifying landings were made. On appeal, Appellant for the first time claimed ownership of another vessel, which did make qualifying landings. Normally, Appellant's claim would not be considered on appeal because it had not been timely raised before RAM. The AO found, however, that RAM had had in its possession data showing Appellant's ownership of the vessel during the period in question. The AO concluded that 50 C.F.R. sec. 679.40(a)(6)(i) required RAM to provide on the application form that it sent to Appellant all data "available to the Regional Administrator" at the time an application was requested, and that RAM violated the regulation by not providing the data regarding Appellant's ownership of that particular vessel.

AO concluded that Appellant's claim of ownership of the vessel was, as a matter of law, timely made and would be considered on appeal. Based on a U.S. Coast Guard abstract of title, the AO found that Appellant was the sole owner of the vessel during the time in question, and ordered RAM to give Appellant credit for the vessel's landings and issue the resulting QS and IFQ.
02-0025 Groundfish/Crab LLP
Issued: 12/14/2004   |   Effective: 02/28/2005
Appellant: HANSEN ENTERPRISES, INC
Disposition: IAD Affirmed
Abstract Terms:
Hansen was found not eligible to receive an LLP groundfish license with an Aleutian Islands endorsement based on the unavoidable circumstance regulation, 50 C.F.R. 679.4(k)(8)(iv). An applicant must meet every requirement of the unavoidable circumstance regulation. Hansen did not harvest groundfish in the Aleutian Islands after the claimed unavoidable circumstance and before June 17, 1995, as required by section (E) of the unavoidable circumstance regulation. The appeals officer did not decide whether Hansen met the other requirements of the unavoidable circumstance regulation, including whether Hansen's inability to find a floating processor to take its catch in 1994 and 1995 was "unique" to Hansen or its vessel.

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

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

Further Action: Hansen filed a motion for reconsideration of the Decision in this appeal. The Council and NMFS could have adopted the approach implicit in Hansen's argument, namely, that a vessel would have varying lengths overall, depending on when it made particular harvests, but they did not. The LLP regulations, however, direct NMFS to assign a vessel one length overall and that is the LOA of the vessel as of a particular date: June 17, 1995. The applicant gets the benefit of the vessel's LOA on that date. If the vessel's LOA on June 17, 1995 was longer than when the vessel made some of the qualifying harvests, the applicant receives a longer MLOA on its LLP license. Thus, Hansen is receiving an LLP crab license with an MLOA of 126 feet and an LLP groundfish license with a Bering Sea endorsement with an MLOA of 126 feet. But the applicant also receives the disadvantages of the vessel's LOA on that date, namely the applicant may be judged by a standard that requires two, rather than one, documented harvests for an endorsement. The appeals officer concluded that Hansen did not show grounds to reconsider the Decision. The motion was denied and February 28, 2005 was established as the new effective date of the Decision.
02-0016 Groundfish/Crab LLP
Issued: 12/13/2007   |   Effective: 12/13/2007
Appellant: ORLANDO B. BELL
Disposition: Affirmed
Abstract Terms:
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.

98-0004R Halibut/Sablefish IFQ
Issued: 12/06/2001   |   Effective:
Appellant: ESTATE OF NGHIA NGUYEN (Reconsideration)
Disposition:
Abstract Terms:
00-0003 Groundfish/Crab LLP
Issued: 12/05/2002   |   Effective: 01/06/2003
Appellant: John B. Lee III
Disposition: Vacated IAD
Abstract Terms:
See further action.
95-0112 Halibut/Sablefish IFQ
Issued: 12/04/1997   |   Effective: 01/05/1998
Appellant: KUZMIN, Vasily V.
Disposition: Affirmed IAD
Abstract Terms:
In his last year of fishing, 1991, Appellant landed halibut from one C category vessel and two D category vessels. RAM assigned vessel categories to Appellant's QS in proportion to the amount of landings made from vessels in each category. Appellant sought to have all his halibut quota shares reclassified from category C to category D. RAM denied his claim and the AO affirmed, concluding that RAM had correctly applied the appropriate regulation and assigned the vessel categories. The regulation in question, 50 C.F.R. Sec. 679.40(a)(5)(iii)(C), provides that if an applicant used more than one vessel in different categories during the person's last year of participation (1988--1991), the person's QS must be assigned to each vessel category in proportion to the landings made in the different categories.
99-0007 Groundfish/Crab Moratorium
Issued: 12/03/1999   |   Effective: 12/03/1999
Appellant: WOOD, Bob
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification for the F/V MAHALO on January 12, 1999. No salvage efforts began on the vessel, which sank in 1992. RAM construed Appellant's application as for a moratorium qualification, final permit and interim permit. RAM denied the application based on 50 C.F.R. 679.4(c)(7)(iii) and (c)(6)(iii) because it was filed after December 31, 1998. An IAD on Reconsideration changed RAM's reasoning for not issuing an interim permit to reliance on 50 C.F.R. 679.4(c)(9)(iii), which deals with vessels that sank between 1989 and 1995. The appeal stated that Mr. Wood thought he had applied for a permit for the F/V MAHALO in 1995, that he wanted to transfer the moratorium qualification of the F/V MAHALO to another vessel and that he had been in frequent communication with RAM in the last two months of 1998 to determine how to remedy the problem. Therefore, Appellant argued, the regulations imposing the December 31, 1998 deadline should not be used to deny his application.

AO found: [1] the denial of a final permit was proper based on 50 C.F.R. 679.4(c)(9)(iii) because the F/V MAHALO sank in 1992 and salvage never began on it; [2] AO does not decide whether the Appellant's allegations concerning contact with NMFS, if true, could affect whether 50 C.F.R. 679.4(c)(7)(iii) and (c)(6)(iii) would be a basis to deny his application, which was filed after December 31, 1998; [3] the denial of a certificate of moratorium qualification to the vessel was proper pursuant to 50 C.F.R. 679.4(c)(9) and the definition of moratorium qualification in 50 C.F.R. 679.2 because, when Appellant applied for a moratorium permit, the moratorium qualification of the vessel could not give rise to a moratorium permit for the F/V MAHALO or any other vessel; [4] Appellant should have received an interim permit and non-transferable certificate of moratorium qualification for the F/V MAHALO based on 50 C.F.R. 679.4(c)(10); [5] RAM's error in not issuing an interim permit and qualification was harmless because Appellant makes no allegation he could have used the interim permit and qualification and the record clearly suggests that he only wanted a moratorium qualification certificate for the F/V MAHALO so he could transfer it to another vessel, which he could not have done.
96-0010 Groundfish/Crab Moratorium
Issued: 12/03/1999   |   Effective: 01/03/2000
Appellant: TUTTLE, Sherri L. & WHITMIL, Lori
Disposition: Affirmed IAD
Abstract Terms:
Appellants applied for a vessel moratorium qualification and permit for the F/V ROSE. RAM denied the application because the F/V ROSE did not have moratorium qualification by its own landings or by transfer from another vessel. Appellants argued this was unfair because Ms. Tuttle relied on statements by (unnamed) NMFS officials in 1993, when she was considering sale of her prior vessel (the F/V JUNE ROSE), that as soon as the halibut and sablefish fisheries went under the Individual Fishing Quota Program, the moratorium would no longer apply and she could use the new vessel (F/V ROSE) in a groundfish fishery. Appellants argued it was unfair that the new owner of the F/V JUNE ROSE got the benefit of qualifying landings made by the F/V JUNE ROSE when Ms. Tuttle owned it.

AO found: [1] under the doctrine of government estoppel, a party who reasonably and detrimentally relies on misinformation or wrong advice provided by a government agency and, as a result, fails to meet or comply with government requirements, may, under certain circumstances, preclude or "estop" the government from asserting the party's noncompliance; [2] among the circumstances that must be present for the doctrine of government estoppel to apply is that the government agency must have engaged in affirmative misconduct; [3] Appellant's allegation that a government agency gave misinformation about possible future features of a fishery management program does not constitute an allegation of affirmative government misconduct; [4] NMFS cannot be bound by statements that were allegedly made two years before the moratorium program and regulations were adopted; [5] Appellants' reliance on statements allegedly made by NMFS agents about a future fishery management program does not constitute reasonable reliance for purposes of the doctrine of government estoppel; [6] the argument that it is unfair that a vessel's moratorium qualification of a vessel is presumed to follow the vessel, when the vessel is sold, is beyond this Office's jurisdiction to decide because it is inappropriate for an appeals officer to pass judgment on the validity or wisdom of the agency's own duly promulgated regulations.
97-0007 Groundfish/Crab Moratorium
Issued: 12/03/1999   |   Effective: 01/03/2000
Appellant: TICE, Robert Earl & Peterson, Eric
Disposition: Affirmed IAD
Abstract Terms:
Appellants and another party each filed applications for a vessel moratorium qualification and permit, each claiming ownership of the F/V DONNA J. The F/V DONNA J is an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied the applications of both Appellants applications because neither Appellant showed that they owned the vessel. On appeal, this Office acquired a U.S. Coast Guard abstract of title, dated December 3, 1999, which shows that Mr. George Larson is the current owner of the F/V DONNA J.

AO found: [1] to obtain a vessel moratorium permit under the regulations of the vessel moratorium program, a person must be the current owner of the vessel. See 50 C.F.R. 679.4(c)(6)(ii) and (ix). [2] Appellants produced several documents, but neither the documents they produced nor the US Coast Guard abstract of title show that either appellant currently owned the vessel. As a result, neither Appellant was entitled to a vessel moratorium permit for the vessel.
96-0007 Groundfish/Crab Moratorium
Issued: 12/02/1999   |   Effective: 01/03/2000
Appellant: SAMISH MARITIME, INC
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit for the F/V REBEL. Appellant recognized that the F/V REBEL had not landed a moratorium crab or moratorium groundfish in the qualifying period (January l, 1988 to February 9, 1992) but stated that the F/V REBEL should be treated as if it had made such a landing because Ron Warren, the President of Samish Maritime, Inc., had received inadequate notice of the Moratorium Program, had been misadvised by a government employee about what the features of a moratorium program would be, would face disastrous financial consequences if excluded from the moratorium fisheries and because this vessel was under construction during the qualifying period. Even though the appeal was received after the appeal deadline and the appellate record did not contain a copy of the postmarked envelope, the record supported the conclusion that the appeal had been mailed, and therefore postmarked, by the deadline and was therefore timely.

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

Further action: Appellant timely requested reconsideration. An Order for Stay was granted on December 10, 1999 while the request for reconsideration was considered. An Order Denying the Request for Reconsideration was entered, December 16, 2000, because Appellant's request did not show any law or arguments the AO had overlooked or misunderstood and a new effective date for the original decision of January 17, 2000 was established. The Order Denying the Request for Reconsideration did note that the denial to appellant of a moratorium permit did not affect whether this vessel would qualify for a license limitation permit.
99-0002 Groundfish/Crab Moratorium
Issued: 12/02/1999   |   Effective: 01/03/2000
Appellant: ALEUTIAN ENTERPRISES, LTD & GOLDEN SABLE FISHERIES, INC.
Disposition: Affirmed IAD
Abstract Terms:
On December 11, 1998, Appellants filed an Application to Transfer Moratorium Qualification from the F/V ALEUTIAN ENTERPRISE to the F/V GOLDEN SABLE and Golden Sable Fisheries, Inc., filed an application for a moratorium permit. The F/V ALEUTIAN ENTERPRISE sank on March 2, 1990 and salvage efforts never began on that vessel. The F/V PACIFIC PEARL had the moratorium qualification of the F/V ALEUTIAN ENTERPRISE by transfer for fourteen days in April 1996. Relying on 50 C.F.R. 679.4(c)(9)(iii), RAM denied both applications. Relying on 50 C.F.R. 679.4(c)(10), RAM issued Golden Sable Fisheries, Inc., an interim permit and qualification.

AO found: [1] 50 C.F.R. 679.4(c)(7)(iii), applied to Appellant's situation, means that the moratorium qualification of the F/V ALEUTIAN ENTERPRISE expired on December 31, 1997 because by that date, the moratorium qualification of the F/V ALEUTIAN ENTERPRISE had not been the basis for issuance of a moratorium permit to a vessel that made a landing of a moratorium species in 1996 or 1997; [2] the listing of the F/V PACIFIC PEARL as a qualified vessel in the summary of vessel qualifications for the License Limitation Program on the NMFS website is insufficient evidence, by itself, to show that the F/V PACIFIC PEARL made a landing of moratorium crab or moratorium groundfish during the fourteen day period when it had a moratorium permit based on the moratorium qualification of the F/V ALEUTIAN ENTERPRISE.
96-0086 Groundfish/Crab Moratorium
Issued: 12/02/1999   |   Effective: 01/03/2000
Appellant: JAMIE MARIE, INC
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit for the F/V JAMIE MARIE. The F/V JAMIE MARIE did not make a landing of moratorium crab or moratorium groundfish in the qualifying period (January l, 1988 to February 9, 1992) but had landed halibut. Appellant argued that the F/V JAMIE MARIE should be treated as a qualified vessel because Ron Miller, the President of Jamie Marie, Inc., relied on government information [1] to conclude that the F/V JAMIE MARIE would be a qualified vessel under the Moratorium Program, [2] to keep the F/V JAMIE MARIE out of the moratorium fisheries in 1991 and 1992 and [3] to invest substantial sums of money to convert the vessel into a trawler. The government information he relied on was the 1992 "True North" Report by the North Pacific Fisheries Management Council and the first, proposed regulations for the Moratorium program, both of which proposed defining halibut as a moratorium fishery, and discussions with unspecified NMFS employees in 1990.

AO found: [1] halibut is not a moratorium species as defined by 50 C.F.R. 679.2; [2] the F/V JAMIE MARIE is not a qualified vessel because it did not make a landing of a moratorium species between January l, 1988 and February 9, 1992; [3] the True North Report and the first, proposed regulations for the Moratorium Program, found at 59 Fed. Reg. 28,827 - 28,838 (1994), did propose defining halibut as a moratorium fishery; [4] the Secretary of Commerce rejected these proposed regulations as violating the Magnuson Act and other federal laws; [5] the government documents and the discussions Mr. Miller states that he had with government employees occurred well before the regulations of the Moratorium Program came into effect on September 11, 1995; [6] court have only permitted government estoppel upon a showing of affirmative misconduct by the government; [7] discussions with government employees or government publications concerning the possible future requirements of a government program might be do not constitute affirmative misconduct; [8] RAM properly applied the regulations defining original qualifying vessels and moratorium species to Jamie Marie's application.
96-0008 Groundfish/Crab Moratorium
Issued: 12/02/1999   |   Effective: 01/03/2000
Appellant: SAMISH MARITIME, INC.
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit for the F/V RENEGADE. Appellant recognized that the F/V RENEGADE had not landed a moratorium crab or moratorium groundfish in the qualifying period (January l, 1988 to February 9, 1992) but stated that the F/V RENEGADE should be treated as if it had made such a landing because Ron Warren, the President of Samish Maritime, Inc., had received inadequate notice of the Moratorium Program, had been misadvised by a government employee about what the features of a moratorium program would be, would face disastrous financial consequences if excluded from the moratorium fisheries and because this vessel was under construction during the qualifying period. An appeal will be treated as timely filed if postmarked or received by the appeal deadline. Even though the appeal was received after the appeal deadline and the appellate record did not contain a copy of the postmarked envelope, the record supported the conclusion that the appeal had been mailed, and therefore postmarked, by the deadline and was therefore timely.

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

Further action: Appellant timely requested reconsideration. An Order for Stay was granted on December 10, 1999 while the request for reconsideration was considered. An Order Denying the Request for Reconsideration was entered, December 16, 2000, because request did not show any law or arguments the AO had overlooked or misunderstood and a new effective date for the original decision of January 17, 2000 was established. The Order Denying the Request for Reconsideration did note that the denial to appellant of a moratorium permit did not affect whether this vessel would qualify for a license limitation permit.
96-0031 Groundfish/Crab Moratorium
Issued: 12/01/1999   |   Effective: 01/03/2000
Appellant: JAMISON, Vern E.
Disposition: Affirmed IAD
Abstract Terms:
Appellant simultaneously applied for a vessel moratorium qualification and permit for the F/V LISA LYNN and applied to transfer the moratorium qualification of the F/V LISA LYNN to the F/V GLORIA ANN. Appellant stated he owned the F/V LISA LYNN throughout the qualifying period (January l, 1988 to February 9, 1992) and sold it in 1994. Appellant owned the F/V GLORIA ANN at the time of his applications. Appellant did not allege or introduce any evidence that he retained the moratorium rights of the F/V LISA LYNN when he sold that vessel.

AO found: [1] 50 C.F.R. 679.4(c)(6) means that the owner of a vessel at the time of application is entitled to the moratorium qualification and permit that results from the landing history of the vessel unless, pursuant to a contract or agreement, the parties to the sale of the vessel severed the moratorium rights of the vessel from the vessel and the prior owner retained the moratorium rights of the vessel; [2] the mere absence of a competing application for the moratorium rights of a vessel from the vessel's current owner is not sufficient, by itself, to warrant a conclusion that the vessel's current owner does not own the moratorium rights of the vessel along with the vessel; [3] Appellant did not show that he owned the F/V LISA LYNN or the moratorium rights of the F/V LISA LYNN at the time of application; [4] the regulatory history of the Moratorium Program does not reveal why the North Pacific Fisheries Management Council structured the program so that the moratorium rights of the vessel are presumed to stay with the vessel; [5] an appeals officer must assume the legality of duly promulgated regulations.
96-0037 Groundfish/Crab Moratorium
Issued: 12/01/1999   |   Effective: 01/03/2000
Appellant: BASARGIN, Julian (Estate)
Disposition: IAD Affirmed
Abstract Terms:
99-0008 Groundfish/Crab Moratorium
Issued: 12/01/1999   |   Effective: 01/03/2000
Appellant: MEIER, Steven K.
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit for the F/V AQUILA under the Vessel Moratorium Program on Groundfish and Crab on April 24, 1999. The Official Record indicated that the F/V AQUILA made landings of moratorium species in the qualifying period, which was January l, 1988 to February 9, 1992. Relying on 50 C.F.R. 679.4(c)(6)(iii) and (c)(7)(iii), RAM denied Appellant a final moratorium permit. Relying on 50 C.F.R. 679.4(c)(10), RAM issued him an interim permit and qualification.

AO found: [1] 50 C.F.R. 679.4(c)(7)(iii), applied to Appellant's application, means that the moratorium qualification of the F/V AQUILA expired on December 31, 1998 because no one had applied on or before that date for a moratorium permit based on the moratorium qualification of the F/V AQUILA; [2] 50 C.F.R. 679.4(c)(6)(iii) required that RAM deny Appellant's application because he did not file it on or before December 31, 1998.
96-0055 Groundfish/Crab Moratorium
Issued: 12/01/1999   |   Effective: 01/03/2000
Appellant: PETRABORG, John
Disposition: IAD Affirmed
Abstract Terms:
96-0032 Groundfish/Crab Moratorium
Issued: 12/01/1999   |   Effective: 12/31/1999
Appellant: WEYHMILLER, John C.
Disposition: IAD Vacated on Reconsideration
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit with a length overall (LOA) of 46 feet, claiming that was the LOA of his original qualifying vessel, the F/V MARY CARL. RAM rejected Appellant's claim for a vessel moratorium qualification and permit of 46 feet because its records showed the LOA of the F/V PAT was 39 feet on June 24, 1992. On appeal, Appellant produced a U.S. Coast Guard Certificate of Documentation, dated May 22, 1987, which shows the registered length of the F/V MARY CARL at 40.7 feet. Appellant also produced a letter from the harbor master of Craig, Alaska, dated February 21, 1997, which states that the F/V MARY CARL has been moored in the Craig harbor the last five years, and that Appellant pays moorage fees based on the "vessel's length of 46 feet."

AO found: [1] Under 50 C.F.R. 679.2, a vessel's "original qualifying LOA" is the "LOA of the original moratorium qualifying vessel on June 24, 1992." If requested by RAM, an applicant is required to produce reliable documentation of a vessel's original qualifying LOA on June 24, 1992, such as a vessel survey, builder's plan, a state or Federal registration certificate, fishing records. See 50 C.F.R. 679.4(c)(6). [2] Appellant's evidence was "reliable documentation" of Appellant's claim and was sufficient evidence to overcome the presumption of RAM's records. Consequently, Appellant is entitled to a vessel moratorium qualification and permit with an LOA of 46 feet.
99-0003 Groundfish/Crab Moratorium
Issued: 12/01/1999   |   Effective: 01/03/2000
Appellant: Al L. ANDERSON ENTERPRISES
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit for the F/V AQUILA under the Vessel Moratorium Program on Groundfish and Crab on January 12, 1999. Relying on 50 C.F.R. 679.4(c)(6)(iii) and (c)(7)(iii), RAM denied Appellant a final moratorium permit. Relying on 50 C.F.R. 679.4(c)(10), RAM issued him an interim permit and qualification.

AO found: [1] assuming that the F/V ALYSA JUNE had moratorium qualification by its own landings, 50 C.F.R. 679.4(c)(7)(iii), applied to Appellant's application, means that the moratorium qualification of the F/V ALYSA JUNE expired on December 31, 1998 because no one had applied on or before that date for a moratorium permit based on the moratorium qualification of the F/V ALYSA JUNE; [2] 50 C.F.R. 679.4(c)(6)(iii) required that RAM deny Appellant's application because it was filed after December 31, 1998; [3] even though these two regulations did not become effective until January 19, 1999, application of these regulations to Appellant's application this did not constitute retroactive rulemaking because [A] the regulations in effect through December 31, 1998 provided that the entire Moratorium Program expired and therefore Appellant had a de facto deadline of December 31, 1998 under the older regulations, [B] the infringement on Appellant's substantive rights was limited because he received an interim permit and qualification and was able to participate in the moratorium fisheries through December 31, 1999; [4] RAM properly used the regulations that were in effect when it processed Appellant's application.
95-0047 Halibut/Sablefish IFQ
Issued: 12/01/1996   |   Effective: 01/01/1997
Appellant: TONGA PARTNERSHIP
Disposition: Vacated IAD
Abstract Terms:
Appellant and Respondent filed conflicting applications for QS based on landings of halibut made from same vessel between May and October, 1988. Appellant applied as the owner and Respondent applied as lessee of the vessel. The RAM Division awarded the QS to Respondent. On appeal, the parties agreed they had entered into an oral lease/purchase agreement for the vessel that was in effect for the June, 1988 halibut opener. Under the agreement, Appellant agreed to pay Respondent 30 percent of the gross revenue to lease the vessel; pay a down payment of $6,500 to Respondent for the purchase of the vessel, prior to July 15, 1988; pay all vessel expenses, including hull and liability insurance; obtain financing, and pay Respondent for the balance of the purchase of the vessel, by the end of 1988. The parties agreed that Respondent skippered and directed the fishing operations of the vessel for the May, 1988 halibut opener. Respondent testified he canceled the lease/ purchase agreement after June 1988, but acknowledged that he agreed to lease the vessel for the duration of the 1988 fishing season, limited solely to Dungeness crab, subject to the sale of the vessel. The parties agreed that Appellant had possession and command of the vessel, and directed the vessel's fishing activities, from June through October 1988. Respondent admitted that he received a percentage of the halibut catch from the vessel during that period.

AO found that Appellant did not lease the vessel during May, 1988, since the evidence showed that the partners of Respondent were employees of Appellant at that time. AO also found, however, that Appellant leased the vessel from Respondent between June and October, 1988. The evidence showed during that time that (1) the parties characterized their arrangement for the use of the vessel as a vessel lease; (2) Respondent possessed and controlled the vessel, and directed the vessel's fishing operations, including the marketing of the fish; (3) Respondent paid for, and assumed the primary financial responsibilities of, the operations of the vessel; and (4) the arrangement had a set term. AO ruled that even if the lease had been breached with the fishing of halibut, (instead of just crab), that a breach does not retroactively invalidate a lease agreement. AO also concluded that the alleged "breach" in this instance was not tantamount to the termination of the lease. The evidence showed that the nature of the relationship between the parties was not fundamentally changed by the alleged unauthorized halibut fishing since Appellant had exclusive possession and control of the vessel, and Respondent accepted payment for his share of the halibut proceeds, for the entire period.
96-0016 Groundfish/Crab Moratorium
Issued: 11/30/1999   |   Effective: 12/30/1999
Appellant: CESSNUN, John
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit with a length overall (LOA) of 39 feet, based on the LOA of his original qualifying vessel, the F/V DAYBREAK. Under 50 C.F.R. 679.2, a vessel's "original qualifying LOA" is the "LOA of the original moratorium qualifying vessel on June 24, 1992." If requested by RAM, an applicant is required to produce reliable documentation of a vessel's original qualifying LOA on June 24, 1992, such as a vessel survey, builder's plan, a state or Federal registration certificate, fishing records, etc. See 50 C.F.R. 679.4(c)(6). RAM rejected Appellant's claim for a vessel moratorium qualification and permit of 39 feet because its records showed the LOA of the F/V DAYBREAK was 36 feet on June 24, 1992. Although RAM requested him to do so, Appellant did not document his claim.

AO concluded that Appellant's assertion was not "reliable documentation" of his claim, and that it was not sufficient to overcome the presumption of RAM's records. Consequently, AO found that the LOA of the F/V DAYBREAK was 36 feet as of June 24, 1992. AO concluded that Appellant was not entitled to a vessel moratorium qualification and permit with an LOA of 39 feet.
96-0014 Groundfish/Crab Moratorium
Issued: 11/30/1999   |   Effective: 12/30/1999
Appellant: SMITH, Volney
Disposition: IAD VACATED on Reconsideration
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit with a length overall (LOA) of 45 feet, claiming that was the LOA of his original qualifying vessel, the F/V PAT. RAM rejected Appellant's claim for a vessel moratorium qualification and permit of 45 feet because its records showed the LOA of the F/V PAT was 40 feet on June 24, 1992. On appeal, Appellant produced a letter from NMFS, stating that one of its agents had measured the vessel at an LOA of 45 1/2 feet, and that the agent had found no physical signs of the vessel having been lengthened.

AO found: [1] Under 50 C.F.R. 679.2, a vessel's "original qualifying LOA" is the "LOA of the original moratorium qualifying vessel on June 24, 1992." If requested by RAM, an applicant is required to produce reliable documentation of a vessel's original qualifying LOA on June 24, 1992, such as a vessel survey, builder's plan, a state or Federal registration certificate, fishing records. See 50 C.F.R. 679.4(c)(6). [2] The letter from NMFS was "reliable documentation" of Appellant's claim. [3] The letter was sufficient evidence to overcome the presumption of RAM's records. Therefore, Appellant is entitled to a vessel moratorium qualification and permit with an LOA of 46 feet.
96-0023 Groundfish/Crab Moratorium
Issued: 11/30/1999   |   Effective: 12/30/1999
Appellant: DENSMORE, David
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit, claiming that the F/V MARY M was an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application because its records did not show that the vessel landed moratorium groundfish or moratorium crab during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i) and 50 C.F.R. 679.2. Appellant produced (1) state fish tickets for Tanner crab landings made from harvests aboard the F/V MARY M in the Kodiak management fishing areas; and (2) a state fish ticket for a Pacific Gray Cod landing made from the vessel on February 10, 1992.

AO found that neither Appellant's evidence, nor RAM's records, show that the F/V MARY M made moratorium crab landings in the Bering Sea/Aleutian Islands or moratorium groundfish landings during the qualifying period. As a consequence, the vessel is not eligible for a moratorium qualification and permit.
96-0006 Groundfish/Crab Moratorium
Issued: 11/30/1999   |   Effective: 12/30/1999
Appellant: HANSEN, Michael R.
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit, based on the F/V SEA QUAIL as an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application because its records did not show that the vessel made moratorium crab or moratorium groundfish landings during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i). On appeal, Appellant claimed that he could not fish the F/V SEA QUAIL during the qualifying period because of inclement weather, and that he should be granted an exception because of hardship or special circumstances.

AO found that the vessel did not make landings of moratorium crab or moratorium groundfish during the moratorium qualifying period of January 1, 1988, through February 9, 1992. In light of that finding, AO concluded that a vessel moratorium qualification and permit cannot be issued for the F/V SEA QUAIL because the vessel moratorium regulations do not provide for an exemption based on hardship or special circumstances.
97-0013 Groundfish/Crab Moratorium
Issued: 11/30/1999   |   Effective: 12/30/1999
Appellant: K&S CONSTRUCTION
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit, based on the F/V THOMAS HENRY as an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application to fish moratorium groundfish and moratorium crab because its records did not show that the vessel landed moratorium groundfish or moratorium crab during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i) and 50 C.F.R. 679.2. Appellant produced the testimony of Mr. Don Stiles before the North Pacific Fishery Management Council, regarding his use of the F/V THOMAS HENRY in 1994, 1995, and 1996.

AO found that the record shows that the F/V THOMAS HENRY did not land moratorium crab or groundfish within the moratorium qualifying period. As a consequence, the vessel is not eligible for a moratorium qualification and permit.
97-0002 Groundfish/Crab Moratorium
Issued: 11/30/1999   |   Effective: 12/30/1999
Appellant: BETSY M COMPANY
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit, based on the F/V BETSY as an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application to fish moratorium groundfish and moratorium crab because its records did not show that the vessel landed moratorium groundfish or moratorium crab during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i) and 50 C.F.R. 679.2. Appellant produced (1) a seafood producer list of the landings made by the F/V BETSY on state fish tickets between November 1994 and January 1995; and (2) a letter from Mr. R.W. Cranston, stating that he purchased the F/V BETSY in 1992, and that he made landings of halibut, black cod, and rock fish in 1992, 1993, and 1994.

AO found that neither the seafood producer list, nor Mr. Cranston's letter, showed that the F/V BETSY made moratorium crab or moratorium groundfish landings during the moratorium qualifying period. As a consequence, the F/V BETSY was not eligible for a moratorium qualification and permit.
98-0005 Groundfish/Crab Moratorium
Issued: 11/30/1999   |   Effective: 12/30/1999
Appellant: MONROE, James D.
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit, claiming that the F/V CAPE LOOKOUT is an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application because its records did not show that the vessel landed moratorium groundfish or moratorium crab during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i) and 50 C.F.R. 679.2. Appellant produced (1) two state fish tickets for halibut landed from the CAPE LOOKOUT in 1990 and 1992; (2) six state fish tickets for crab landed from the vessel between 1988 and 1992; and (3) a letter dated July 13, 1998, from Charles Jensen, stating that he had witnessed Appellant deliver "various fishery products," which included halibut, true cod, crab, and Pacific cod, to East Point Seafoods in Kodiak, Alaska. The fish tickets for the crab landings showed that the harvests were made in the Central Gulf of Alaska, and not the Bering Sea/Aleutians Islands.

AO found that the evidence in the record did not show that the F/V CAPE LOOKOUT made crab landings in the Bering Sea/Aleutian Islands or made groundfish landings during the moratorium qualifying period. AO noted that while Appellant's fish tickets showed that halibut and crab landings were made from the F/V CAPE LOOKOUT during the moratorium qualifying period, halibut is not moratorium groundfish, and crab harvested outside the BS/AI is not moratorium crab. AO noted that Mr. Jensen's statement that he witnessed groundfish delivered to East Point Seafoods is not supported by state fish tickets or the information in RAM's records, and that the letter, by itself, is not credible or reliable evidence of the landings (or the legal landings) of the fish. As a consequence, the F/V CAPE LOOKOUT was not eligible for a moratorium qualification and permit.
96-0072 Groundfish/Crab Moratorium
Issued: 11/30/1999   |   Effective: 12/30/1999
Appellant: REGAL BALLYHOO, INC & KARM ENTERPRISES, INC
Disposition: Affirmed IAD
Abstract Terms:
Appellants applied for a vessel moratorium qualification and permit, claiming that the F/V BALLYHOO was an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellants application to fish moratorium groundfish and moratorium crab because its records did not show that the vessel landed moratorium groundfish or moratorium crab during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i) and 50 C.F.R. 679.2. Appellants produced state fish tickets, showing landings made from the F/V BALLYHOO between February 24, 1992, and November 1994.

AO found that the landings on the state fish tickets were outside the moratorium qualifying period and that the evidence in the record did not show that the F/V BALLYHOO did not make qualifying moratorium landings. As a consequence, the vessel is not eligible for a moratorium qualification and permit.
94-0003 Halibut/Sablefish IFQ
Issued: 11/30/1995   |   Effective: 12/29/1995
Appellant: DANIELSON, Kurt E.
Disposition: Affirmed IAD
Abstract Terms:
The Appellant's RFA was postmarked 16 July 95 and received by RAM 18 July 94. AO found that: (1) The Division mailed at least three RFAs to Appellant at his correct address, all of which were presumably received by 15 July 94; (2) Appellant's RFA was mailed to the Division on the day it was postmarked, 16 July 94, one day after the application filing deadline; (3) neither Appellant, nor anyone on his behalf, took decisive action by 15 July 94 to complete the filing of his RFA.
05-0005 Groundfish/Crab LLP
Issued: 11/29/2006   |   Effective: 12/29/2006
Appellant: ARCTIC SOLE SEAFOODS, INC.
Disposition: Affirmed
Abstract Terms:
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.
96-0021 Groundfish/Crab Moratorium
Issued: 11/29/1999   |   Effective: 12/27/1999
Appellant: STEELE, Jeff
Disposition: Affirmed IAD
Abstract Terms:
The Official Record for the Moratorium Program indicated that Appellant was entitled to a moratorium qualification and permit with two gear endorsements: crab with pot gear and groundfish with pot gear. Appellant claimed that he was also entitled to a groundfish/hook gear endorsement but did not have access to the vessel's landing history because of a financial dispute with the prior owner.

AO found: [1] 50 C.F.R. 679.4(c)(5) (i) provides that to receive an endorsement to harvest groundfish with hook gear, a vessel must have made either [A] a landing of moratorium groundfish with any gear in period 1 (January l, 1998 to February 9, 1992) or [B] a landing of moratorium crab in period 1 and a landing of moratorium groundfish with hook gear in period 2 (February 10, 1992 to December 11, 1994); [2] the theoretical possibility that the Official Record for the Moratorium Program might have omitted a landing, without any specific evidence that a landing was omitted, is not sufficient by itself to justify a hearing or further efforts by the Office of Administrative Appeals to obtain additional information on whether this vessel had the landings necessary for a groundfish/hook gear endorsement when the Moratorium Program is about to expire and the Applicant had received an interim permit and qualification with a groundfish/hook gear endorsement; [3] Appellant did not show his vessel made the landings necessary for an endorsement to harvest groundfish with hook gear.
97-0004 Groundfish/Crab Moratorium
Issued: 11/29/1999   |   Effective: 12/29/1999
Appellant: NELSON, John, Jr.
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit, based on the F/V OUT FOX as an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application because its records did not show that the vessel made moratorium crab or moratorium groundfish landings during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i). Appellant submitted a settlement sheet from Ursin Seafoods, Inc., Kodiak, for crab purchases made from the F/V OUT FOX between January 20, 1986, and January 30, 1988. No state fish tickets were submitted by the Appellant.

AO found that the settlement sheet was not sufficient evidence that crab or groundfish landings were made from the F/V OUT FOX during the moratorium qualifying period. AO concluded that even if the settlement sheet was sufficient evidence of landings, the landings could not be considered "legal" landings, absent evidence of state fish tickets. The claimed landings were also outside the qualifying period. Therefore, Appellant was not entitled to a moratorium qualification and permit for the F/V OUT FOX.
96-0057 Groundfish/Crab Moratorium
Issued: 11/29/1999   |   Effective: 12/29/1999
Appellant: DONAHUE, Joseph K.
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit, claiming that the F/V STORM FRONT was an "original qualifying vessel" under the Vessel Moratorium Program. RAM endorsed the vessel's permit to fish moratorium groundfish with pot, trawl, and hook gear, but it did not endorse the vessel's permit to fish moratorium crab with pot gear.

AO found that Appellant's evidence (ADF&G catch records of the F/V STORM FRONT) did not show that the vessel made crab landings in the Bering Sea/Aleutian Islands between January 1, 1988, and December 11, 1994, or that the vessel made moratorium groundfish landings with pot gear between January 1, 1988, and February 9, 1992, as required under 50 C.F.R. 679.4(c)(5)(i) and 50 C.F.R. 679.2 for a crab endorsement with pot gear. The F/V STORM FRONT is not entitled to an endorsement to fish moratorium crab with pot gear on its moratorium permit.
96-0070 Groundfish/Crab Moratorium
Issued: 11/29/1999   |   Effective: 12/29/1999
Appellant: SHADLE, Matt
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit, claiming that the F/V RISKY BUSINESS was an "original qualifying vessel" under the Vessel Moratorium Program. RAM did not endorse the vessel's permit to fish moratorium crab with pot gear.

AO found that Appellant did not produce state fish tickets (or any other evidence) to show that the vessel made crab landings in the Bering Sea/Aleutian Islands between January 1, 1988, and December 11, 1994, or that the vessel made moratorium groundfish landings with pot gear between January 1, 1988, and February 9, 1992, as required under 50 C.F.R. 679.4(c)(5)(i) and 50 C.F.R. 679.2 for a crab endorsement with pot gear. Therefore, the moratorium permit of the F/V RISKY BUSINESS should not have an endorsement to fish moratorium crab with pot gear.
96-0039 Groundfish/Crab Moratorium
Issued: 11/29/1999   |   Effective: 12/29/1999
Appellant: ANCHOR TRADE & DEVELOPMENT
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit, claiming that the the F/V GOLDEN SABLE was an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application because its records did not show that the vessel made moratorium crab or moratorium groundfish landings during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i). On appeal, Appellant claimed that he should be granted an exception (from the requirement of qualifying landings) because Appellant relied upon various proposals of the North Pacific Management Fishery Council which were not adopted as regulations under the vessel moratorium program, because the owner of the vessel (Magne Nes) pioneered crab and groundfish fishing off Alaska, and because of financial hardship.

AO found that the vessel did not make landings of moratorium crab or moratorium groundfish during the moratorium qualifying period of January 1, 1988, through February 9, 1992. In light of that finding, AO concluded that a vessel moratorium qualification and permit cannot be issued for the F/V GOLDEN SABLE because the vessel moratorium regulations do not provide for an exemption based on hardship or special circumstances.
96-0069 Groundfish/Crab Moratorium
Issued: 11/29/1999   |   Effective: 12/29/1999
Appellant: SHADLE, Matt
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit, based on the F/V KRISTINE ALASKA, as an "original qualifying vessel" under the Vessel Moratorium Program. RAM did not endorse the vessel's permit to fish moratorium crab with pot gear.

AO found that Appellant did not produce state fish tickets (or any other evidence) to show that the vessel made crab landings from harvests in the Bering Sea/Aleutian Islands between January 1, 1988, and December 11, 1994, or that the vessel made moratorium groundfish landings with pot gear between January 1, 1988, and February 9, 1992, as required under 50 C.F.R. 679.4(c)(5)(i) and 50 C.F.R. 679.2 for a crab endorsement with pot gear. Therefore, the moratorium permit of the F/V KRISTINE ALASKA should not have an endorsement to fish moratorium crab with pot gear.
96-0053 Groundfish/Crab Moratorium
Issued: 11/29/1999   |   Effective: 12/29/1999
Appellant: SEATON, Paul K.
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit, based on the F/V TOTEM, as an "original qualifying vessel" under the Vessel Moratorium Program. RAM endorsed the vessel's permit to fish moratorium groundfish with pot, trawl, and hook gear, but it did not endorse the vessel's permit to fish moratorium crab with pot gear.

AO found that Appellant's evidence (which included state fish tickets) did not show that the vessel's crab landings were harvested in the Bering Sea/Aleutian Islands (BS/AI) between January 1, 1988, and December 11, 1994, or that the vessel made moratorium groundfish landings with pot gear between January 1, 1988, and February 9, 1992, as required under 50 C.F.R. 679.4(c)(5)(i) and 50 C.F.R. 679.2 for a crab endorsement with pot gear. As a result, the moratorium permit of the F/V TOTEM should not have an endorsement to fish moratorium crab with pot gear.
03-0008 Groundfish/Crab LLP
Issued: 11/26/2007   |   Effective: 12/26/2007
Appellant: YAKUTAT, INC.
Disposition: Affirmed
Abstract Terms:
03-0022 Western Alaska CDQ Program
Issued: 11/26/2004   |   Effective: 12/07/2004
Appellant: NORTON SOUND ECONOMIC DEVELOPMENT CORP.
Disposition: IAD Vacated
Abstract Terms:
The Appellant, one of six CDQ groups, proposed to partially fund two multi-purpose community buildings as substantial amendments to its Community Development Plan (CDP). The NMFS CDQ Program Coordinator issued two IADs which accepted the State of Alaska's recommendations that the substantial amendments be disapproved on the grounds that the proposed buildings do not start or support commercial fisheries business activities, as specified in 50 C.F.R. 679.1(e). The Appeals Officer found that the CDQ Program Coordinator used a reasonable analytical approach to determine that the projects were not primarily fisheries-related, and concluded that the coordinator properly made that determination. The Appeals Officer also found that NMFS has consistently approved non-fisheries-related CDQ projects, but has "not clearly delineated the boundaries or described the characteristics of the types of non-fisheries-related projects that it will approve, nor has NMFS provided notice or guidance to the CDQ groups of which kinds of projects will and won't be approved." The Appeals Officer found that NMFS did not articulate any rational basis for distinguishing between the non-fisheries-related projects it has approved and disapproved. The Appeals Officer found that NMFS does not interpret its regulations to require CDQ projects to be fisheries-related, and concluded that NMFS may not disapprove the substantial amendments in this appeal on the grounds that they are inconsistent with the goals and purpose of the CDQ program stated in 50 C.F.R. 679.1(e). The Appeals Officer concluded that NMFS had not met the standard for disapproving a substantial amendment in 50 C.F.R. 679.30(g)(4)(iii) and, therefore, the amendments should be approved.

Further Action: RA Decision on Review affirmed Decision and gave a new effective date.
02-0011 Groundfish/Crab LLP
Issued: 11/26/2002   |   Effective: 12/26/2002
Appellant: OCEAN CREST FISHERIES
Disposition: Affirmed IAD
Abstract Terms:
The issue was whether Appellant qualified for an LLP groundfish license, based on an "unavoidable circumstance." The appeals officer found that the F/V CREST did not make the requisite number of documented harvests to qualify for an LLP groundfish license for the Aleutian Islands, Bering Sea, Central Gulf, Southeast Outside, and Western Gulf, groundfish fisheries. The appeals officer concluded that neither the theft of the F/V CREST's fishing gear in 1990, nor the financial difficulties during 1993 and 1994 of a company that owed Appellant money, could be legally construed as an "unavoidable circumstance" (that prevented the vessel from making the requiste documented harvests) because the F/V CREST did not make at least one documented harvest of groundfish in the Aleutian Islands, Bering Sea, Central Gulf, Southeast Outside, and Western Gulf, groundfish fisheries, after the alleged events, but before June 17, 1995.
96-0065 Groundfish/Crab Moratorium
Issued: 11/26/1999   |   Effective: 12/27/1999
Appellant: HATTEN, Michael, Sr.
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit for the F/V THUNDERBIRD. Appellant submitted evidence that the F/V THUNDERBIRD was under construction in the qualifying period, which was January l, 1988 to February 9, 1992, and that the F/V THUNDERBIRD made landings of moratorium groundfish in 1993 and 1994. Appellant also noted that he had last fished a prior boat, the F/V INLET VENTURE, in 1991. RAM denied the application.

AO found: [1] 50 C.F.R. 679.4(c)(7) provides that to obtain a moratorium permit, a vessel must have moratorium qualification by its own landings or by transfer of moratorium qualification from another vessel; [2] for a vessel to have moratorium qualification by its own landings, the vessel must have made a landing of moratorium crab or groundfish during the qualifying period, January l, 1988 to February 9, 1992; [3] the regulations provide no exception for a vessel under construction during the qualifying period; [4] Appellant did not show that the F/V THUNDERBIRD was a qualified vessel either by its own landings or by transfer of a moratorium qualification from another vessel.
96-0049 Groundfish/Crab Moratorium
Issued: 11/24/1999   |   Effective: 12/24/1999
Appellant: HIGH SPIRIT, Inc.
Disposition: Affirmed IAD
Abstract Terms:
High Spirit, Inc., and Cloverleaf, Inc., applied to transfer the moratorium qualification of the F/V CLOVERLEAF to the F/V HIGH SPIRIT. The landings history of the F/V CLOVERLEAF entitled it to a moratorium qualification and permit with a crab/pot gear endorsement and a groundfish/pot gear endorsement. High Spirit, Inc., applied for a moratorium qualification and permit based on the transfer of the moratorium qualification of the F/V CLOVERLEAF. High Spirit, Inc., wished to add to the moratorium qualification and permit based on the transfer of the moratorium qualification of the F/V CLOVERLEAF a groundfish/hook gear endorsement based on the F/V HIGH SPIRIT's landing of a groundfish in period 2 (February 10, 1992 to December 11, 1994). After the Appeal was filed, RAM approved the transfer of the moratorium qualification of the F/V CLOVERLEAF to the F/V HIGH SPIRIT. That eliminated from dispute whether High Spirit, Inc., was entitled to a moratorium qualification and permit with a crab/pot gear endorsement and a groundfish/pot gear endorsement, because the F/V CLOVERLEAF was entitled to those gear endorsements. The issue that remained was whether the F/V HIGH SPIRIT was entitled to add a groundfish/hook gear endorsement.

AO found: [1] the F/V HIGH SPIRIT did not have a landing of a moratorium species in the qualifying period or period 1, which were both January l, 1988 to February 9, 1992; [2] pursuant to agreement, Cloverleaf, Inc., transferred to High Spirit, Inc., all of the moratorium rights of the F/V CLOVERLEAF; [3] since the F/V CLOVERLEAF was not entitled to a groundfish/hook gear endorsement, the F/V HIGH SPIRIT was not entitled to that endorsement; [4] High Spirit, Inc., does not qualify for "crossover privileges" into the groundfish/hook gear fishery as that concept is discussed in the regulatory history of the Moratorium Program and is embodied in 50 C.F.R. 679.4(c)(5) because the F/V HIGH SPIRIT did not make any landings between January l, 1988 and February 9, 1992; [5] the regulations do not permit an applicant to receive a gear endorsement based on a combination of the landings history of two vessels.
06-0012 Crab Rationalization
Issued: 11/20/2006   |   Effective: 12/20/2006
Appellant: THOMPSON, David E.
Disposition: Affirmed
Abstract Terms:
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.
02-0039 Groundfish/Crab LLP
Issued: 11/20/2003   |   Effective: 12/22/2003
Appellant: HIGH SPIRIT, INC
Disposition: IAD Affirmed
Abstract Terms:
The appeals officer found that Appellant's vessel, the F/V HIGH SPIRIT, did not exist, and therefore did not make at least one documented harvest of LLP crab, during the general qualifying period (GQP) for an LLP crab license, between January 1, 1988, and February 9, 1992. Even though construction delays may have prevented the vessel from being built and making at least one documented harvest of LLP crab during the GQP, and even though Appellant may go bankrupt, and not be able to pay for his daughter's ovarian cancer operation, without an LLP crab license, the appeals officer concluded that he could not grant relief to Appellant because (1) the "unavoidable circumstances" provision in the LLP regulations cannot be used as an exception to the GQP requirement; and (2) the LLP regulations do not provide for an exception to the documented harvest requirements for an LLP crab license, based on financial hardship or extenuating circumstance.
96-0071 Groundfish/Crab Moratorium
Issued: 11/19/1999   |   Effective: 12/20/1999
Appellant: NEWMAN, Robert E. (Estate)
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit, based on the F/V MORZHOVOI, as an "original qualifying vessel" under the Vessel Moratorium Program. Appellant claimed that the length overall (LOA) of the vessel was 100 feet as of June 24, 1992, and that the vessel's moratorium permit should be endorsed to fish moratorium groundfish with hook gear. RAM denied both claims. RAM's records showed the vessel's LOA at 86 feet. Appellant produced a marine survey for the F/V MORZHOVOI, dated November 10, 1989, which shows an LOA of 90 feet; a marine survey for the vessel, dated April 22, 1996, which shows an LOA of 100 feet; pictures to show that the F/V MORZHOVOI's LOA was increased to 100 feet in 1994; a copy of a state fish ticket for halibut landings in 1991; a copy of a state fish ticket for Pacific cod landings in 1991. Under the regulations of the Vessel Moratorium Program, a vessel's "original qualifying LOA" is the LOA of the original moratorium qualifying vessel on June 24, 1992. See 50 C.F.R. 679.2. A marine survey is considered "reliable documentation" of a vessel's LOA. See 50 C.F.R. 679.4(c)(6).

AO found: [1] Appellant's evidence showed the vessel's LOA was 90 feet on June 24, 1992, (which was four feet less than RAM's records, but not 100 feet, as claimed by Appellant). [2] Appellant's fish tickets did not show that the F/V MORZHOVOI landed moratorium groundfish because moratorium groundfish does not include Pacific halibut [See 50 C.F.R. 679.2] because the claimed Pacific cod landing was not recorded on the original fish ticket for the landing. The 1991 landing was also gear endorsement periods: period 1 (January l, 1988 through February 9, 1992) and period 2 (February 10, 1992 through December 11, 1994). Therefore, the F/V MORZHOVOI is entitled to a moratorium qualification and permit with an LOA of 90 feet; and that the vessel is not eligible for an endorsement for moratorium groundfish with hook gear.
96-0054 Groundfish/Crab Moratorium
Issued: 11/19/1999   |   Effective: 12/20/1999
Appellant: ELIASON, George
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit for the F/V TAMMY LIN, the vessel that he owned when he applied. Appellant stated that he owned another vessel, the F/V ANNA J when it made qualifying landings during the qualifying period (January l, 1988 to February 9, 1992) and that he sold the F/V ANNA J in December 1994. Appellant did not allege or introduce any evidence that he retained the moratorium rights of the F/V ANNA J when he sold that vessel. Appellant alleged that the F/V TAMMY LIN made qualifying landings and introduced evidence of landings of groundfish in Oregon. Appellant further argued it is unfair that the moratorium qualification and permit based on the landings of the F/V ANNA J will go to the new owner of the F/V ANNA J since Appellant's actions while he owned the F/V ANNA J created the vessel's moratorium rights. RAM denied the Appellant a final moratorium permit and transferable certificate of moratorium qualification for the F/V TAMMY LIN but granted the Appellant an interim moratorium permit and non-transferable certificate of moratorium qualification for that vessel.

AO found: [1] since 50 C.F.R. 679.2 defines moratorium groundfish as groundfish, except sablefish caught with fixed gear, harvested in the Gulf of Alaska or the Bering Sea/Aleutian Islands area, a landing of groundfish in Oregon is not a landing of moratorium groundfish; [2] 50 C.F.R. 679.4(c)(6) means that the owner of a vessel at the time of application is entitled to the moratorium qualification and permit that results from the landing history of the vessel unless, pursuant to a contract or agreement, the parties to the sale of the vessel severed the moratorium rights of the vessel from the vessel and the prior owner retained the moratorium rights of the vessel; [3] Appellant did not own the F/V ANNA J or the moratorium rights of the F/V ANNA J at the time of application; [4] the regulatory history of the Moratorium Program does not clearly show the basis for the policy choice that the moratorium rights of the vessel would be presumed to stay with the vessel; [5] any potential unfairness to the Appellant from this policy choice is substantially mitigated by the issuance to him of an interim permit and qualification.
96-0017R Groundfish/Crab Moratorium
Issued: 11/16/1999   |   Effective: 12/15/1999
Appellant: SCHOONER SEAFOODS, INC (Reconsideration)
Disposition: IAD Affirmed
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit with a length overall (LOA) of 68 feet, based on the LOA of his original qualifying vessel, the F/V ALEUTIAN. Under 50 C.F.R. 679.2, a vessel's "original qualifying LOA" is the "LOA of the original moratorium qualifying vessel on June 24, 1992." If requested by RAM, an applicant is required to produce reliable documentation of a vessel's original qualifying LOA on June 24, 1992, such as a vessel survey, builder's plan, a state or Federal registration certificate, fishing records, etc. See 50 C.F.R. 679.4(c)(6). RAM rejected Appellant's claim for a vessel moratorium qualification and permit of 68 feet because its records showed the LOA of the F/V ALEUTIAN was 63 feet on June 24, 1992. Appellant produced a Federal Fisheries Permit for the vessel, dated March 8, 1996, which showed the vessel's LOA's at 68 feet.

AO concluded that the permit was not "reliable documentation" of Appellant's claim because the permit was issued nearly four years after June 24, 1992. Therefore, in light of the evidence of RAM's records, AO found that the weight of evidence showed that the LOA of the F/V ALEUTIAN was 63 feet as of June 24, 1992. As a result, Appellant was not entitled to a vessel moratorium qualification and permit with an LOA of 68 feet.
96-0015 Groundfish/Crab Moratorium
Issued: 11/16/1999   |   Effective: 12/16/1999
Appellant: LOCKHART, Glen
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification for the F/V SABLEFISH under the Vessel Moratorium Program on Groundfish and Crab and applied to transfer the moratorium qualification of the F/V SABLEFISH to an unspecified vessel. Appellant stated that he owned the F/V SABLEFISH when it made qualifying landings in the qualifying period (January l, 1988 to February 9, 1992) and that he sold the F/V SABLEFISH in May 1991. Appellant argues that since the bill of sale of the F/V SABLEFISH did not expressly include moratorium rights, the moratorium rights of the vessel were not sold with the vessel. The question is whether, when the sale documents do not expressly mention moratorium rights, the person who is selling the vessel will be held to have sold the moratorium rights of the vessel with the vessel.

AO found: [1] 50 C.F.R. 679.4(c)(6) means that the owner of a vessel at the time of application is entitled to the moratorium qualification and permit that results from the landing history of the vessel unless, pursuant to a contract or agreement, the parties to the sale of the vessel severed the moratorium rights of the vessel from the vessel and the prior owner retained the moratorium rights of the vessel; [2] if the parties to a sale of a vessel did not expressly exclude moratorium rights of the vessel, the sale transferred the moratorium rights of the vessel with the vessel; [3] therefore, Appellant did not show that he owned the vessel or the moratorium rights to the vessel at the time of application. This Decision is consistent with RAM's interpretation of 50 C.F.R. 679.4(c)(6) and follows the OAA's decision in Yukon Queen Fisheries LLP, Appeal No. 96-0009.
96-0052 Groundfish/Crab Moratorium
Issued: 11/16/1999   |   Effective: 12/16/1999
Appellant: OEN, David J.
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit, based on the F/V ENDURANCE as an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application because its records did not show that the vessel landed moratorium groundfish or moratorium crab during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i) and 50 C.F.R. 679.2. Appellant produced (1) a printout from the Alaska Department of Fish & Game, showing Appellant's rockfish landings from the F/V ROSALYN in 1992 and the F/V ENDURANCE between 1993 and 1996; (2) a letter from the International Pacific Halibut Commission, stating that the F/V ENDURANCE landed Pacific halibut in September 1991; (3) a letter from Appellant, stating that when he purchased the F/V ENDURANCE, the "1993 rules" of the Vessel Moratorium Program allowed vessels with halibut landings to qualify for a moratorium permit.

AO concluded that Appellant's evidence was insufficient because halibut is not moratorium groundfish, and because the F/V ENDURANCE's earliest groundfish (rockfish) landings were made in 1993, which is outside the moratorium qualifying period. AO noted that the regulations of the Vessel Moratorium Program were adopted in 1996, and that the program is not governed by any rules that may have been proposed in 1993. Because the evidence in the record shows that the F/V ENDURANCE did not make qualifying moratorium landings, the vessel is not eligible for a moratorium qualification and permit.
96-0042 Groundfish/Crab Moratorium
Issued: 11/16/1999   |   Effective: 12/16/1999
Appellant: MULLER, Donald N.
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit, based on the F/V FOXY LADY as an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application to fish moratorium crab because its records did not show that the vessel harvested moratorium crab in the Bering Sea/Aleutian Islands during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i) and 50 C.F.R. 679.2. Appellant submitted evidence from the Alaska Department of Fish & Game, which showed that the FOXY LADY made Tanner crab harvests in the Central Gulf of Alaska management area between 1988 and 1991.

AO found that the evidence in the record did not show that the F/V FOXY LADY made crab harvests in the Bering Sea/Aleutian Islands during the relevant period. As a consequence, we concluded that the F/V FOXY LADY was not eligible for a moratorium qualification and permit to fish moratorium crab.
96-0051 Groundfish/Crab Moratorium
Issued: 11/16/1999   |   Effective: 12/16/1999
Appellant: THOMAS, John R.
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit, based on the F/V MERIDIAN as an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application to fish moratorium crab because its records did not show that the vessel harvested moratorium crab in the Bering Sea/Aleutian Islands during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i) and 50 C.F.R. 679.2. Appellant submitted state fish tickets, settlement sheets, check, and his CFEC permit card, as evidence that the F/V MERIDIAN made Tanner crab harvests in 1989 and 1990.

AO found that the evidence in the record did not show that the F/V MERIDIAN made crab harvests in the Bering Sea/Aleutian Islands during the relevant period. At best, the evidence showed only that the vessel made crab harvests in Kodiak fish management areas. As a consequence, the F/V MERIDIAN was not eligible for a moratorium qualification and permit to fish moratorium crab.
95-0037 Halibut/Sablefish IFQ
Issued: 11/14/2000   |   Effective: 12/14/2000
Appellant: DEAVER, Dennis
Disposition: Affirmed IAD
Abstract Terms:
Appellant claimed that (1) he was entitled to additional sablefish QS based on a 1989 sablefish delivery by the F/V PACIFIC SUN; and (2) his halibut and sablefish QS should have been reassigned from vessel category C to vessel category B. AO found that (1) the 1989 delivery was not recorded on either a state fish ticket or federal catch report (the fish were turned away by the buyer because they were contaminated by diesel fuel); and (2) Appellant landed halibut on both a category C and a category B vessel in 1991.

AO concluded that (1) the 1989 sablefish delivery did not entitle Appellant to additional sablefish QS because the fish were not legally landed; and (2) Appellant was not entitled to have his sablefish QS, and all of his halibut QS for IFQ regulatory areas 3A, 3B, and 4A, re-assigned from vessel category C to vessel category B. Under IFQ regulations, Appellant's halibut and sablefish QS were properly assigned proportionately between vessel categories C and B because he landed halibut from vessels in each category during his most recent year of participation (1991).
98-0006 Halibut/Sablefish IFQ
Issued: 11/14/2000   |   Effective: 12/14/2000
Appellant: DOWIE, Andrew R. and Nicholas J.
Disposition: Affirmed IAD
Abstract Terms:
Appellant's claimed they were entitled to an initial issuance of Pacific halibut and sablefish QS as successors to their father's interest in QS, based on halibut and sablefish landings he made while leasing the F/V MARGARET G in 1988.

AO concluded that Appellants were not entitled to an initial issuance of QS based on their father's lease of the F/V MARGARET G in 1988 because the vessel did not make legal landings of Pacific halibut or sablefish in 1988. The landings were not legal because the fish tickets did not satisfy State of Alaska regulatory requirements and because the vessel did not have a valid ADF&G intent to operate when the vessel harvested halibut and sablefish.
96-0028 Groundfish/Crab Moratorium
Issued: 11/10/1999   |   Effective: 11/22/1999
Appellant: DESHONG, William
Disposition: IAD Affirmed
Abstract Terms:
95-0072 Halibut/Sablefish IFQ
Issued: 11/10/1998   |   Effective: 12/10/1998
Appellant: WOELKERS, Frederick J.
Disposition: Affirmed IAD
Abstract Terms:
Appellant's application was denied because there was no evidence in the official record that Appellant owned or leased a vessel from which legal landings were made during the QS qualifying period of 1988-1990. RAM records showed the Appellant owning three fishing vessels for various periods of time during the qualifying and base years, but also showed no landings of halibut during those years. On appeal, Appellant claimed to have landed 600 pounds of halibut during the qualifying years but did not produce any evidence of these landings, and there was no such evidence in the record on appeal. Appellant produced evidence of landings for only 1984 and 1986. Appellant did not claim to have leased any of the vessels he owned at various times. A USCG abstract of title for the F/V MOUNTAIN PRINCESS showed Appellant's ownership interest ended when he sold the vessel in 1985.

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

AO found or concluded that: (1) vessels identified in the Appellant's denied application and appeal cannot form the basis for Appellant to qualify for QS; (2) the F/V MOUNTAIN PRINCESS was owned by two persons other than Appellant as tenants-in-common between December 1985 and November 1990; (3) Appellant did not own or lease a vessel, either individually or as a former partner of a dissolved partnership, from which qualifying halibut landings were made during the QS qualifying period; and (4) Appellant was not a qualified person for QS under the IFQ program.
00-0005 Groundfish/Crab LLP
Issued: 11/08/2002   |   Effective: 12/09/2002
Appellant: REUTOV, Afanasy
Disposition: Vacated IAD
Abstract Terms:
Appellant applied for two licenses: a groundfish license based on the fishing history of the F/V NEVA and a groundfish license based on the fishing history of the F/V DELTA. The IAD denied Appellant both licenses, stating that he applied for both licenses after the LLP application deadline of December 17, 1999.

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

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

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

The appeals officer based this conclusion on the following: [1] the definition of "eligible applicant" in 50 C.F.R. 679.2 as a qualified person "who submitted an application during the application period announced by NMFS" is ambiguous; [2] NMFS policy is to apply the application deadline liberally and to accept an application as timely if the applicant took decisive steps to apply by the application deadline, [3] the structure of the application process permits NMFS and applicants to correct mistakes that either made at the time the applicant timely filed for an LLP license; [4] Appellant applied for an LLP license based on the F/V DELTA before RAM had taken any action on his LLP application based on the F/V NEVA and before RAM had taken any action on any application based on the F/V DELTA.
95-0084 Halibut/Sablefish IFQ
Issued: 11/08/1995   |   Effective: 12/08/1995
Appellant: PROWLER PARTNERSHIP v. SAMUELSON, Gainhart
Disposition: Affirmed IAD
Abstract Terms:
The RAM Division allocated one third of qualifying pounds of sablefish landings, made from a vessel during the period 5 Apr 85 through 9 June 89, to Respondent. RAM's IAD found that Respondent had owned a one third interest in the vessel, and denied these pounds to the partnership on the grounds that the partnership itself never owned the vessel. RAM also denied the partnership's claim to qualifying pounds landed from the vessel in 1987 and 1988 during longline surveys conducted by NMFS, which had chartered the vessel. RAM found that landings of fish harvested during the longline surveys were not conducted in compliance with IFQ regulations. RAM also denied Respondent's claim to one third of these qualifying pounds.

AO found that Appellant failed to provide conclusive evidence that it owned the vessel, and that Respondent owned a one third interest in the vessel as tenant in common; that an agreement to sell Respondent's ownership interest signed by the parties did not transfer Respondent's eligibility for QS; that Respondent is eligible for one third of qualifying pounds resulting from landings from the vessel during the period 5 Apr 85 through 9 June 89; that activities of the vessel while under contract with NMFS to perform longline surveys constituted scientific research, not fishing under the Magnuson Act; and that RAM properly denied allocation of QS based on these landings.

Further action: Appellant's motion to reconsider filed 13 Nov 95; Effective date of decision stayed, 05 Dec 95; Respondent response to motion filed 13 Dec 95; Appellant Points and Authorities filed 19 Dec 95; Respondent Response to Points and Authorities filed 08 Jan 96. Decision on Reconsideration (Part I) issued March 12, 1996; affirmed on review and effective March 14, 1996.

Decision on Reconsideration (Part II) issued 29 Sep 97; affirmed on review and effective 2 Oct 97; U.S. District Court appeals of both parts, described below after Decision on Reconsideration (Part I) and Decision on Reconsideration (Part II).
95-0087 Halibut/Sablefish IFQ
Issued: 11/06/1998   |   Effective: 12/07/1998
Appellant: DOUMIT, Mark L.
Disposition: Affirmed IAD
Abstract Terms:
Appellant's claim for additional halibut QS, based on his claim that he became a "successor-in-interest" to the prior owner of his vessel, was denied. RAM rejected Appellant's claim and also determined that, in any event, the prior owner was not a "qualified person" and therefore had no interest in QS to which Appellant could have succeeded. Appellant was credited with qualifying pounds of halibut landings when he owned the vessel during the period of 1986-1990, but also claimed credit for additional pounds of landings made from the vessel when it was previously owned by another person. Appellant had no connection with the vessel during the time of those landings when it was owned by another person. The previous owner died in 1985 and his widow sold the vessel to Appellant in December 1985.

AO found or concluded that: (1) the previous owner of the vessel did not own or lease a vessel during a QS qualifying year from which legal landings of halibut or sablefish were made; (2) the previous owner of the vessel was not a "qualified person" for QS, and neither he, nor his estate, nor his widow had any interest in QS to which anyone could be succeed; (3) Appellant was not a "successor-in-interest" to the previous vessel owner; (4) an applicant who merely purchases a vessel cannot receive an initial issuance of QS based on landings made from the vessel by former owners during a period when the applicant did not own or lease the vessel, even if the seller and purchaser agreed that the sale included the fishing history of the vessel; and (5) Appellant was not entitled to credit for landings made from the vessel in 1984 and 1985.
96-0067 Halibut/Sablefish IFQ
Issued: 11/05/1999   |   Effective: 12/06/1999
Appellant: LEVENSON, Mark
Disposition: Affirmed IAD
Abstract Terms:
During the 1995 fishing season, Appellant landed halibut head-on from fish harvested in IFQ regulatory area 3A and 3B. NMFS weighed the fish under a conversion formula to determine the gutted, head-off weight of the fish. NMFS recorded the converted formula weight on NMFS landing reports, and debited the weight from Appellant's IFQ account. The processor subsequently processed the fish and recorded the actual head-off weight of the fish on state fish tickets. The converted weight on the NMFS landing reports was greater than the actual head-off weight recorded on state fish tickets.

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

AO concluded that RAM correctly debited Appellant's 1995 IFQ account because the debit was based on the weight obtained initially at the time of landing, which was the weight recorded on the NMFS landing reports. AO also concluded that RAM correctly adjusted Appellant's 1996 IFQ accounts because the "overage" and "underage" adjustments were within ten percent of the annual harvest limit (of each IFQ regulatory area).
95-0030 Halibut/Sablefish IFQ
Issued: 11/05/1997   |   Effective: 12/05/1997
Appellant: TISON, Kenneth
Disposition: Affirmed IAD
Abstract Terms:
Appellant's vessel sank in 1989. Although he claimed he had fished sablefish since 1969, Appellant made no qualifying landings of sablefish or halibut during the qualifying period of 1988--1990. Appellant's only sablefish landing during that period was in Alaska state waters, which is excluded from IFQ program coverage.

AO affirmed RAM's determination that the Appellant did not make qualifying landings. The AO also rejected Appellant's claim for QS based on landings made prior to the qualifying period. The AO stated that the North Pacific Fishery Management Council had specifically chosen to deny eligibility to applicants who did not make actual landings during the qualifying period due to hardships or unavoidable circumstances.
96-0079 Halibut/Sablefish IFQ
Issued: 11/02/1998   |   Effective: 12/02/1998
Appellant: DOUBLEDAY, Morgan
Disposition: Affirmed IAD
Abstract Terms:
Appellant requested that he be allowed to fish in 1996 the IFQ he had not fished in 1995, and alternatively that he be allowed to use his 1995 IFQ permits and harvest the unfished amounts in addition to fishing his 1996 IFQ permits. RAM denied Appellant's requests on the grounds that IFQ is calculated annually, and that it is valid only in the year for which it is issued. Appellant also requested that his 1996 IFQ amounts be increased by 10 percent of the IFQ amounts that he did not fish in 1995. RAM granted the requested 10 percent increase to Appellant's 1996 IFQ amounts.

AO found or concluded that: (1) RAM properly calculated the requested 10 percent of Appellant's 1995 IFQ for each regulatory area and credited those amounts to his 1996 IFQ accounts; (2) whatever the reasons that kept Appellant from using most of his 1995 IFQ, the IFQ program regulations do not authorize the carrying over of more than 10 percent underage from one year to the next; (3) Appellant has already received all of the 1995 underage carryover to which he was entitled, and RAM had no authority to grant more; (4) RAM did not have authority to allow Appellant to use his 1995 permits in any other year; and, (5) except as expressly provided otherwise, the formula provided in 50 C.F.R. 679.40(b) and (c) is the exclusive method for calculating the amount of IFQ that may be fished in a given year.
96-0078 Groundfish/Crab Moratorium
Issued: 11/01/1999   |   Effective: 12/01/1999
Appellant: EAMES, Dennis
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit, based on the F/V TALIA, as an "original qualifying vessel" under the Vessel Moratorium Program. RAM did not grant the vessel an endorsement to fish moratorium crab with pot gear. Appellant produced a state fish ticket for the harvest of crab in southeast Alaska on February 22, 1991; and a state fish ticket for the harvest of groundfish with longline gear on September 14, 1990.

AO found that the state fish tickets did not show that the vessel's crab landings were harvested in the Bering Sea/Aleutian Islands between January 1, 1988, and December 11, 1994, or that the vessel made moratorium groundfish landings with pot gear between January 1, 1988, and February 9, 1992, as required under 50 C.F.R. 679.4(c)(5)(i) and 50 C.F.R. 679.2 for a crab endorsement with pot gear. We concluded that the moratorium permit of the F/V TALIA is not entitled to an endorsement to fish moratorium crab with pot gear.
96-0017 Groundfish/Crab Moratorium
Issued: 11/01/1999   |   Effective: 12/01/1999
Appellant: SCHOONER SEAFOODS, INC
Disposition: IAD Affirmed
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit with a length overall (LOA) of 68 feet, based on the LOA of his original qualifying vessel, the F/V ALEUTIAN. Under 50 C.F.R. 679.2, a vessel's "original qualifying LOA" is the "LOA of the original moratorium qualifying vessel on June 24, 1992." If requested by RAM, an applicant is required to produce reliable documentation of a vessel's original qualifying LOA on June 24, 1992, such as a vessel survey, builder's plan, a state or Federal registration certificate, fishing records, etc. See 50 C.F.R. 679.4(c)(6). RAM rejected Appellant's claim for a vessel moratorium qualification and permit of 68 feet because its records showed the LOA of the F/V ALEUTIAN was 63 feet on June 24, 1992. Appellant produced a Federal Fisheries Permit for the vessel, dated March 8, 1996, which showed the vessel's LOA's at 68 feet.

AO concluded that the permit was not "reliable documentation" of Appellant's claim because the permit was issued nearly four years after June 24, 1992. Therefore, in light of the evidence of RAM's records, AO found that the weight of evidence showed that the LOA of the F/V ALEUTIAN was 63 feet as of June 24, 1992. As a result, Appellant was not entitled to a vessel moratorium qualification and permit with an LOA of 68 feet.
96-0043 Groundfish/Crab Moratorium
Issued: 11/01/1999   |   Effective: 12/01/1999
Appellant: BOTSFORD, Wallace
Disposition: Affirmed IAD
Abstract Terms:
Appellant simultaneously applied for a vessel moratorium qualification and permit for the F/V LADY JANE and applied to transfer the moratorium qualification of the F/V LADY JANE to the F/V MADRE DOLOROSA. Appellant stated that he owned the F/V LADY JANE throughout the qualifying period (January l, 1988 to February 9, 1992) and sold the F/V LADY JANE in May 1992. He owned the F/V MADRE DOLOROSA when he applied. Appellant did not allege or introduce any evidence that he retained the moratorium rights of the F/V LADY JANE when he sold that vessel. RAM denied the application for a moratorium qualification and permit for the F/V LADY JANE. The question is whether the owner of the vessel at the time of application or the owner of the vessel at the time the vessel made the qualifying landings is entitled to the moratorium qualification and permit that results from the vessel's landing history.

AO found: 50 C.F.R. 679.4(c)(6) means that the owner of a vessel at the time of application is entitled to the moratorium qualification and permit that results from the landing history of the vessel unless, pursuant to a contract or agreement, the parties to the sale of the vessel severed the moratorium rights of the vessel from the vessel and the prior owner retained the moratorium rights of the vessel. Appellant did not show that he owned the vessel or the moratorium rights to the vessel at the time of application.
97-0005 Groundfish/Crab Moratorium
Issued: 11/01/1999   |   Effective: 12/01/1999
Appellant: KURTH, Stephen
Disposition: Affirmed IAD
Abstract Terms:
Appellant applied for a vessel moratorium qualification and permit, based on the F/V SHINAKU as an "original qualifying vessel" under the Vessel Moratorium Program. RAM denied Appellant's application because its records did not show that the vessel made moratorium crab or moratorium groundfish landings during the moratorium qualifying period, January 1, 1988, through February 9, 1992. See 50 C.F.R. 679.4(c)(7)(i). On appeal, Appellant produced a letter in which he claimed that the F/V SHINAKU made halibut and sablefish landings, and other groundfish landings, during the qualifying period. Appellant did not produce state fish tickets, state processor reports, state landings reports, or any other documentation showing that the vessel made moratorium crab or moratorium groundfish landings during the relevant period.

AO weighed Appellant's assertion against RAM's records and concluded that the preponderance of evidence showed that the F/V SHINAKU did not make landings of moratorium crab or moratorium groundfish during the moratorium qualifying period of January 1, 1988, through February 9, 1992. AO noted that even if sablefish or halibut landings were made, as claimed, neither fish is a moratorium species under the Vessel Moratorium Program. As a result, AO concluded that the F/V SHINAKU was not eligible for a vessel moratorium qualification and permit.
95-0086 Halibut/Sablefish IFQ
Issued: 11/01/1996   |   Effective: 11/13/1996
Appellant: EROFEEF, Alex v. BASARGIN, Nazary
Disposition: Affirmed IAD
Abstract Terms:
Appellant and Respondent filed conflicting applications for QS, both claiming ownership of the same vessel. Respondent based his ownership claim on a bill of sale, a certificate of registration, and a U.S. Coast Guard abstract of title. The RAM Division awarded QS to Respondent. On appeal, Appellant based his claim of ownership on a sales agreement which provided for the title of the vessel to pass at a later date; and documents which showed that he had paid the mortgage on the vessel and for the vessel's operating expenses.

AO found in favor of Respondent because, by regulation, the abstract is superior proof of ownership.
03-0006 Groundfish/Crab LLP
Issued: 10/31/2007   |   Effective: 12/01/2007
Appellant: BLUE GADDUS, LLC
Disposition: Affirmed
Abstract Terms:
05-0008 North Pacific Groundfish Observer Program
Issued: 10/31/2006   |   Effective: 11/30/2006
Appellant: DOE, Mary
Disposition: Vacated
Abstract Terms:
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.
95-0114 Halibut/Sablefish IFQ
Issued: 10/30/1996   |   Effective: 11/29/1996
Appellant: SILVER ICE v. ARCTIC SELECT
Disposition: Affirmed IAD
Abstract Terms:
Appellant, a partnership, was owned 50 percent by Respondent, and 25 percent each by Maring, Inc. and Anderson, Inc. Appellant owned a vessel which made landings of halibut and sablefish during 1989 and 1990. Respondent sold its entire interest in Appellant on Jan. 1, 1991. The RAM Division determined that Respondent was a former partner of a dissolved partnership and that it was eligible for 50 percent of the QS associated with the landings m