Digest of Decisions - Administrative Appeals

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Administrative Appeals Digest: Digest of Decisions

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

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

07-0004 Crab Rationalization Appellant: MEDHAUG, Jan O. Disposition: Affirmed Abstract Terms: - Crab Rationalization	Issued: 1/11/2008 Effective: 2/10/2008
Abstract: To Decision

05-0003 Groundfish/Crab LLP Appellant: HAL LEWIS Disposition: Vacated Abstract Terms: - LLP Groundfish/Crab	Issued: 12/17/2007 Effective: 12/17/2007
Abstract: To Decision

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

02-0016 Groundfish/Crab LLP Appellant: ORLANDO B. BELL Disposition: Affirmed Abstract Terms: - LLP Groundfish/Crab	Issued: 12/13/2007 Effective: 12/13/2007
Abstract: To Decision

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

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

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

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

07-0002 Halibut/Sablefish IFQ Appellant: RUTTER, Sigard D. Disposition: Affirmed Abstract Terms: - IFQ Account - Transfer	Issued: 7/6/2007 Effective: 8/6/2007
Abstract: To Decision

06-0011 Crab Rationalization Appellant: TOLVA, Michael L., (Estate) Disposition: Affirmed Abstract Terms: - Crab Rationalization	Issued: 6/20/2007 Effective: 7/20/2007
Abstract: To Decision

05-0006 Crab Rationalization Appellant: SPINAK, Scott C. Disposition: Affirmed Abstract Terms: - Crab Rationalization	Issued: 6/4/2007 Effective: 7/5/2007
Abstract: To Decision

01-0031 Halibut/Sablefish IFQ Appellant: FALK, Thomas C. Disposition: Affirmed Abstract Terms: - IFQ Account	Issued: 5/11/2007 Effective: 6/11/2007
Abstract: To Decision

06-0016 Crab Rationalization Appellant: CHRISTENSEN, Walter Disposition: Affirmed Abstract Terms: - Crab Rationalization	Issued: 5/2/2007 Effective: 6/1/2007
Abstract: To Decision

06-0014 Crab Rationalization Appellant: COBBAN, Gary D., Jr. Disposition: Affirmed Abstract Terms: - Crab Rationalization	Issued: 4/30/2007 Effective: 5/30/2007
Abstract: To Decision

03-0017 Groundfish/Crab LLP Appellant: DOUBLEDAY, Morgan Disposition: Affirmed Abstract Terms: - LLP Groundfish/Crab	Issued: 2/15/2007 Effective: 3/12/2007
Abstract: To Decision

06-0017 Crab Rationalization Appellant: SITKIN ISLAND, INC. and NORTHERN ORION, INC. Disposition: Affirmed Abstract Terms: - Crab Rationalization	Issued: 1/31/2007 Effective: 3/2/2007
Abstract: To Decision

02-0008B Groundfish/Crab LLP Appellant: DONOVICK, Mark Disposition: Affirmed Abstract Terms: - LLP Groundfish/Crab	Issued: 12/20/2006 Effective: 1/19/2007
Abstract: To Decision

03-0020 Groundfish/Crab LLP Appellant: HARLAN, Joseph W. Disposition: Affirmed Abstract Terms: - LLP Groundfish/Crab	Issued: 12/20/2006 Effective: 12/19/2006
Abstract: To Decision

05-0005 Groundfish/Crab LLP Appellant: ARCTIC SOLE SEAFOODS, INC. Disposition: Affirmed Abstract Terms: - Endorsements - LLP Groundfish/Crab	Issued: 11/29/2006 Effective: 12/29/2006
Abstract: To Decision

06-0012 Crab Rationalization Appellant: THOMPSON, David E. Disposition: Affirmed Abstract Terms: - Crab Rationalization	Issued: 11/20/2006 Effective: 12/20/2006
Abstract: To Decision

05-0008 North Pacific Groundfish Observer Program Appellant: DOE, Mary Disposition: Vacated Abstract Terms: - Observer	Issued: 10/31/2006 Effective: 11/30/2006
Abstract: To Decision

02-0015 Groundfish/Crab LLP Appellant: GOLDEN FLEECE, INC. Disposition: Affirmed Abstract Terms: - LLP Groundfish/Crab	Issued: 10/4/2006 Effective: 11/6/2006
Abstract: To Decision

02-0056 Groundfish/Crab LLP Appellant: OLNEY, Virginia Disposition: Affirmed Abstract Terms: - LLP Groundfish/Crab	Issued: 9/14/2006 Effective: 10/15/2006
Abstract: To Decision

03-0029 Groundfish/Crab LLP Appellant: PARNELL, William F. Disposition: Affirmed Abstract Terms: - LLP Groundfish/Crab	Issued: 7/3/2006 Effective: 8/2/2006
Abstract: To Decision

04-0008R North Pacific Groundfish Observer Program
Appellant: JANE DOE (Reconsideration)
Disposition: Affirmed
Abstract Terms:
- Observer
- Regulations

Issued: 6/12/2006
Effective: 6/12/2006

Abstract:

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

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

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

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

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

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

To Decision

04-0004 Groundfish/Crab LLP Appellant: FALK, Thomas and FALK, Deborah Disposition: Affirmed Abstract Terms: - LLP Groundfish/Crab - Official Record - Eligibility - Endorsements	Issued: 5/26/2006 Effective: 6/26/2006
Abstract: The Initial Administrative Determination (IAD) concluded that the Appellant's LLP license would have area endorsements for the Bering Sea, Western Gulf and Central Gulf. The IAD concluded that license would not have area endorsements for the Aleutian Islands and Southeast Outside. Appellant questioned why the LLP license would not be endorsed for the Aleutian Islands. Appellant and his former wife did not agree whether a Decree of Dissolution, issued by a Washington State court, awarded the right to this license to Appellant alone, or to Appellant and his former wife. Appellant believed that the LLP license should be issued in his name. His former wife believed that the LLP license should be issued in both names. The Administrative Judge concluded that Appellant and Appellant's former wife were the eligible applicants for this license and that the license should be issued in both their names. The official record is presumed to be correct. The applicant who claims the official record is incorrect has the burden of proving that his or her claims, rather than the official record, are correct. Appellant submitted a copy of an IFQ Annual Fishing Permit that grants them the right to harvest 155 pounds of halibut in 1997 in area 4B, which is in the Aleutian Islands The fact that the Appellant's harvested halibut at any time in any place did not support their claim to an LLP license. To qualify for an LLP license, an applicant must have harvested license limitation groundfish in specified places at specified times. Halibut is not a license limitation groundfish. The Administrative Judge concluded that the vessel did not harvest any license limitation groundfish in the Aleutian Islands or Southeast Outside in the endorsement qualification period, and that therefore Appellants did not qualify for an LLP groundfish license with an Aleutian Islands or a Southeast Outside endorsement. To Decision

04-0002R Groundfish/Crab LLP Appellant: JAMIE MARIE., INC.- Order Denying Motion For Reconsideration Disposition: Denied Abstract Terms: - Estoppel	Issued: 5/25/2006 Effective: 6/25/2006
Abstract: A Decision was issued in this appeal on April 13, 2006 that affirmed the IAD. In the Decision it was explained that government estoppel is an extraordinary remedy that is reserved only for situations of serious injustice because, by accepting a claim of estoppel, NMFS would be prevented from judging Appellant's application according to published regulations and according to the same rules by which it judged all other LLP applicants. The Administrative Judge concluded that Appellant did not meet five requirements, each of which an applicant must meet to prevail on a claim of government estoppel. Appellant filed a timely motion for reconsideration of the Decision on April 24, 2006. An order was issued staying the effective date of the Decision on April 25, 2006. In its motion, Appellant agreed with the Decision’s statement of the requirements for estoppel: “The criteria for estoppel have been accurately described in the Decision.” Appellant argued that the Decision overlooked that Appellant met the requirements for estoppel. The Administrative Judge concluded that the Decision did not overlook or misunderstand any argument or evidence that showed that Appellant met the requirements for estoppel. Therefore, the motion was denied and June 25, 2006 was established as the new effective date of the Decision. To Decision

03-0009 Groundfish/Crab LLP Appellant: BEAGLE ENTERPRISES, L.P. Disposition: Affirmed Abstract Terms: - LLP Groundfish/Crab	Issued: 5/19/2006 Effective: 6/19/2006
Abstract: To Decision

02-0033 Groundfish/Crab LLP Appellant: JACOBSEN, Dick Disposition: Affirmed Abstract Terms: - LLP Groundfish/Crab	Issued: 4/24/2006 Effective: 5/24/2006
Abstract: To Decision

03-0027 Groundfish/Crab LLP Appellant: PROWLER, LLC Disposition: Affirmed Abstract Terms: - LLP Groundfish/Crab	Issued: 4/19/2006 Effective: 5/19/2006
Abstract: To Decision

04-0002 Groundfish/Crab LLP Appellant: JAMIE MARIE, INC. Disposition: Affirmed Abstract Terms: - Estoppel - Unavoidable Circumstances	Issued: 4/13/2006 Effective: 5/15/2006
Abstract: The Appellant did not meet the requirements in federal regulation for an LLP groundfish license. Appellant acknowledged this but argued that NMFS should be estopped, or prevented, from applying the LLP regulations to its application. Appellant stated that it relied on representations by a NMFS employee in 1991 that halibut would be considered a groundfish for purposes of receiving a limited access groundfish license and, as a result, did not harvest Pacific cod in 1992 and did not meet the requirements for an LLP groundfish license. Appellant's statement of the facts was assumed to be true. Even assuming that, Appellant did not meet five requirements for government estoppel. Any one of these deficiencies bars Appellant from relief. First, Appellant was not ignorant of the true facts, namely that in 1991 and 1992, it did not need a limited access license to harvest Alaska groundfish and NMFS had not established requirements for a limited access license that it might need to harvest groundfish in the future. Second, Appellant's reliance on a NMFS employee’s statement was unreasonable for the purpose of preventing NMFS from applying the rules that the Secretary of Commerce adopted for an LLP license. An applicant cannot rely, or assume, that government will adopt, without change, a proposal for requirements for a license to participate in a limited access fishery. Third, if a NMFS official told Appellant that it would definitely receive a license before the government had adopted regulations for the license – no matter what the public said in response to a proposed rule, no matter what the Secretary of Commerce said in its legal review of the rule – the government official was clearly acting outside the scope of his authority. Fourth, NMFS did not commit affirmative misconduct. At most, the NMFS employee’s private statements to Appellant were mistaken, careless or negligent. These statements come nowhere close to constituting affirmative misconduct. NMFS’s public actions are that it proposed a regulation that defined halibut as a qualifying species for the Vessel Moratorium Program and withdrew the proposed rule when it determined, and the Secretary concurred, that the proposed rule violated the national standards in the Magnuson-Stevens Act. The North Pacific Fishery Management Council [Council] and NMFS then proposed, and the Secretary approved, a VMP regulation in 1995, and an LLP regulation in 1998, under which Appellant did not qualify for a limited access license. None of these actions constitute misconduct of any kind. Fifth, estoppel is not necessary to avoid serious injustice. When a fishery goes from open access fishery to limited access, a vessel owner is not entitled to know the rules for participation in the limited access fishery, before the government adopts those rules through the process specified in the Administrative Procedure Act and the Magnuson-Stevens Act. It did not cause serious injustice to evaluate Appellant's application by the rules that the Secretary adopted for LLP licenses in 1998 and that NMFS applied to all other applicants for an LLP license. To Decision

04-0001 Groundfish/Crab LLP Appellant: SOLSTICE, INC. Disposition: Affirmed Abstract Terms: - Regulations - Endorsements - LLP Groundfish/Crab - Unavoidable Circumstances	Issued: 1/20/2006 Effective: 2/19/2006
Abstract: Appellant appealed an Initial Administrative Determination [IAD] denying its application for an LLP groundfish license with endorsements for the Bering Sea, Western Gulf and Central Gulf. The IAD denied the license because the vessel did not make a documented harvest of groundfish in either the Bering Sea/Aleutian Islands [BSAI] or the Gulf of Alaska in the basic general qualification period [GQP] for an LLP groundfish license, which was January l, 1988 through June 27, 1992. Apellant did not argue that the vessel made such a harvest, but argued it should receive credit under the unavoidable circumstance provision because the owner began construction of the vessel in January 1991, expected to finish construction by April 1992, but unanticipated construction delays the vessel to not be finished until January 1993. Appellant did not qualify for an LLP license based on the unavoidable circumstance regulation, 50 C.F.R. § 679.4(k)(8)(iv), because it did not make a documented harvest of groundfish between January l, 1988 and February 9, 1992, as required by the first sentence of the regulation. NMFS lacks authority to issue an LLP license by combining the general qualification period [GQP] fishing history of another vessel with the endorsement qualification period [EQP] fishing history of the principal vessel. To receive an LLP license, the same vessel must have made the GQP and EQP documented harvests. Appellant did not qualify for an LLP license based on its claim that, as a matter of sound policy, fairness and justice, its application should be granted. The LLP regulations grant licenses based on an objective standard of a vessel’s documented harvests, subject to the limited exception of the unavoidable circumstance regulation. The LLP regulations do not give NMFS the authority to grant an LLP license based on an administrative judge’s subjective determinations of sound policy, fairness and justice. Appellant did not qualify for an LLP license based on its claim that the LLP violates the Administrative Procedure Act [APA] because NMFS did not consider vessel safety. The vessel did not participate in any fishery until January 1993. The vessel did not qualify for an LLP license either under the standard requirements for documented harvests or the unavoidable circumstance requirements. The Secretary of Commerce did not adopt a regulation that exempted a vessel from meeting the standard requirements and the unavoidable circumstance requirements for any reason, including that the new vessel was safer vessel than the prior vessel and the entry of the new vessel into the fishery was delayed by financial difficulties. It was found that the LLP regulations cannot be interpreted to achieve the result Appellant wished. Appellant argued that the LLP itself was unwise because it did not consider vessel safety in the manner that Appellant thinks the Council and NMFS should have considered vessel safety. Appellant did not qualify for an LLP groundfish license based on its claim that the LLP is arbitrary and capricious and violates the Administrative Procedure Act. The Administrative Judge has the duty to interpret and apply the regulations, but does not have the authority to change them. The regulations were adopted the LLP regulations according to the detailed process for public, Council and NMFS participation in the Magnuson-Stevens Fishery Conservation and Management Act. The Magnuson-Stevens Act provides for judicial review of regulations adopted under it, if a petition for review is filed [1] in federal court within 30 days after the date on which the regulations are promulgated or the action is published in the Federal Register. This proceeding was not before a federal court and was not filed within 30 days after the LLP regulations were promulgated. To Decision

04-0008 North Pacific Groundfish Observer Program
Appellant: JANE DOE
Disposition: Affirmed
Abstract Terms:
- Observer
- Regulations

Issued: 1/3/2006
Effective: 1/3/2006

Abstract:

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

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

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

To Decision

01-0027 Groundfish/Crab LLP Appellant: NEW ERA PARTNERSHIP Disposition: Vacated Abstract Terms: - Evidence - LLP Groundfish/Crab - Endorsements - Official Record	Issued: 10/18/2005 Effective: 11/17/2005
Abstract: New Era Partnership appealed an Initial Administrative Determination [IAD] that the Restricted Access Management Program [RAM] issued on September 4, 2001, under the North Pacific Groundfish and Crab License Limitation Program [LLP]. New Era applied for an LLP crab license and five area/species endorsements, based on the fishing history of the F/V ALEUTIAN NO. 1 (ADFG 05992, USCG No. 611139), a catcher vessel with a length overall of 126 feet. The IAD determined that New Era qualified for a transferable LLP crab license with four endorsements: Pribilof Islands red and blue king crab, Bristol Bay red king crab, St. Matthew blue king crab, and Bering Sea/Aleutian Islands [BSAI] C. opilio and C. bairdi (Tanner) crab. The IAD determined that New Era did not qualify for an Aleutian Islands [AI] brown king crab endorsement. On appeal, New Era did not challenge the denial of the AI brown king crab endorsement. New Era also applied for an LLP groundfish license based on the fishing history of the F/V ALEUTIAN NO. 1. New Era sought three groundfish area endorsements: Bering Sea, Aleutian Islands, and Western Gulf of Alaska. To receive an LLP license, an applicant must meet the requirements for documented harvests in the general qualification period [GQP] and at least one endorsement qualification period [EQP]. The IAD determined that New Era did not qualify for an LLP groundfish license because its only groundfish harvest during the GQP was not a lawful harvest. The IAD also stated that if the harvest had been lawful, New Era would qualify only for a Bering Sea area endorsement. Pending a final agency action on New Era’s application, RAM issued to New Era a non-transferable LLP groundfish license and a non-transferable LLP crab license. On appeal, New Era argued that it qualified for an LLP groundfish license, but did not argue that it met the EQP requirements for an Aleutian Islands or a Western Gulf of Alaska endorsement. Therefore, New Era’s appeal was treated as disputing only whether it qualified for an LLP groundfish license with a Bering Sea endorsement. Oral hearing in this matter was held on March 22, 2005 and June 8, 2005. The Appeals Officer found that New Era qualified for an LLP groundfish license with a Bering Sea area endorsement. The F/V ALEUTIAN NO. 1’s only groundfish harvest during the general qualification period was made in 1992 without a 1992 Federal Fisheries Permit [FFP]. New Era established by a preponderance of the evidence, however, that it had applied to NMFS for a 1992 FFP in December 1991, while its 1991 FFP was still in effect. Under Section 9(b) of the federal Administrative Procedure Act, 5 U.S.C. §558(c), a timely and sufficient application for a renewal license keeps the applicant’s existing license in effect until the agency makes a final determination on the application. Thus, New Era’s 1991 FFP was still in effect on January 8, 1992, when the F/V ALEUTIAN NO. 1 landed the groundfish harvest. As a result, the harvest was lawful and constituted a documented harvest under 50 C.F.R. §679.2. Therefore, New Era met the documented harvest requirement for an LLP groundfish license with a Bering Sea area endorsement. To Decision

04-0007 Groundfish/Crab LLP Appellant: OLNEY, Virginia Disposition: Affirmed Abstract Terms: - LLP Groundfish/Crab - Eligibility - Endorsements	Issued: 8/11/2005 Effective: 9/11/2005
Abstract: Ms. Olney applied for an LLP groundfish license with a Southeastern Outside area endorsement. An Initial Administrative Determination (IAD) denied her application because it concluded that her vessel did not meet the general qualification period [GQP] requirement for an LLP groundfish license. According to the official LLP record, the vessel made no harvests of license limitation groundfish in the BSAI or the Gulf of Alaska between January l, 1988 and June 27, 1992. Ms. Olney submitted three fish tickets that showed harvests of ling cod, quillback rockfish and yelloweye rockfish on May 9, 1991; ling cod, quillback rockfish and yelloweye rockfish on September 5, 1991; ling cod, quillback rockfish, tiger rockfish, canary rockfish and yelloweye rockfish on June 9, 1992. These dates are within January l, 1988 and June 27, 1992. NMFS and the North Pacific Fishery Management Council and NMFS specifically excluded these fish from the definition of license limitation groundfish. The fish tickets submitted by Ms. Olney do not show harvests of license limitation groundfish and therefore do not show that she satisfied this way of meeting the GQP requirement for an LLP groundfish license. Ms. Olney does not need an LLP groundfish license to conduct directed fishing for these species – ling cod anywhere in Alaska and demersal shelf rockfish in the Southeast Outside district. The vessel did harvest license limitation groundfish in 1993 and 1994: redbanded rockfish and silvergray rockfish on June 12, 1993 and redbanded rockfish on September 16, 1994. These are not demersal shelf rockfish and therefore could count toward LLP qualification. The vessel is less than 60 feet. According to the Official LLP Record, the vessel made these harvests with hook and line gear, not pot or jig gear, and Ms. Olney did not dispute that. The relevant regulation has three parts and Ms. Olney satisfied only two. The vessel harvested license limitation groundfish between January l, 1988 and June 17, 1995: redbanded rockfish and silvergray rockfish on June 12, 1993; redbanded rockfish on September 16, 1994; and redbanded rockfish on May 6, 1995. The vessel harvested groundfish in the Gulf of Alaska or BSAI between February 10, 1992 and December 11, 1994 using trawl or longline gear, excluding sablefish with fixed gear. The rockfish harvests on June 12, 1993 and September 16, 1994 meet this requirement as well. The Appeals Officer noted that the F/V vessel did meet the EQP requirement for an LLP license with a Southeast Outside area endorsement for a category C vessel. It made at least one documented harvest of license limitation groundfish in the Southeast Outside district between January l, 1992 and June 17, 1995, however, an applicant must meet both the general qualification period requirement and the endorsement qualification period requirement. Since the vessel did not meet any GQP requirement, the Appeals Officer concluded that Ms. Olney did not qualify for an LLP groundfish license with a Southeast Outside endorsement based on the fishing history of the vessel. To Decision

03-0024 Groundfish/Crab LLP Appellant: HOGEVOLL, Ben Disposition: IAD Vacated Abstract Terms: - Endorsements - Unavoidable Circumstances	Issued: 8/8/2005 Effective: 9/7/2005
Abstract: Appellant qualified for an LLP groundfish license endorsed for the Bering Sea (BS) and Western Gulf of Alaska (GOA) groundfish fisheries. The IAD denied Appeallant's claim to a Central Gulf of Alaska area endorsement because the official record showed that the vessel did not make the required harvests for that endorsement, and because Appellant did not qualify for the Central Gulf area endorsement under the unavoidable circumstances provision, 50 C.F.R. §679.4(k)(8)(iv). On appeal, Appellant conceded that his vessel did not make the required documented harvests for the Central Gulf area endorsement, but disputed the determination that he was ineligible for the endorsement under the unavoidable circumstance provision. Appellant did not dispute the official LLP record and conceded that the vessel lacked the requisite fishing history to meet the EQP requirements for Central Gulf of Alaska area endorsement. However, Appeallant claimed qualification for the Central Gulf endorsement under an alternative method – the unavoidable circumstance provision found at 50 C.F.R. §679.4(k)(8)(iv). Appellant claimed that the grounding of the vessel in October 1992 prevented it from participating in the Central Gulf groundfish fishery during the fall of the same year. But for that event, Appellant claimed the vessel would have made at least one documented harvest of LLP groundfish in 1992, and would have met the requirements for a Central Gulf area endorsement under 50 C.F.R. §679.4(k)(ii)(I). The evidence in the record showed that Appellant would have gone to the Central Gulf of Alaska in the fall of 1992 to fish LLP groundfish if the vessel had not grounded, and was found to have had that specific intent. The vessel needed only one more documented harvest of LLP groundfish in the Central Gulf to qualify for the Central Gulf area endorsement. The evidence in the record was that Appellant's failure to make the requisite LLP groundfish harvest was directly attributable to the grounding and subsequent repairs, and that those events were the sole cause of that failure. Paragraph (E) of the unavoidable circumstance regulation specifies that the vessel must have made a documented harvest in the appropriate endorsement area after an unavoidable circumstance but before June 17, 1995. As this office has stated in other decisions, that is an absolute requirement to qualify under the unavoidable circumstances provision. The NMFS official LLP record showed that the vessel made a documented harvest of LLP groundfish (Pacific cod) in the Central Gulf of Alaska on March 15, 1993. Thus, it was found the vessel made a documented harvest in the appropriate endorsement area after the unavoidable circumstance but before June 17, 1995. The Administrative Judge concluded that Appellant satisfied all of the criteria under the unavoidable circumstances provision and qualified for the Central Gulf of Alaska area endorsement. To Decision

02-0041 Groundfish/Crab LLP Appellant: REHDER, Charles Disposition: Affirmed IAD Abstract Terms: - Endorsements	Issued: 8/1/2005 Effective: 8/31/2005
Abstract: Appellant claimed qualification for two LLP groundfish area endorsements under an unavoidable circumstance provision, 50 C.F.R. 679.4(k)(8)(iv). The AO concluded as a matter of law that an applicant can never qualify for a Bering Sea area endorsement on the basis of an unavoidable circumstance. That endorsement requires only one documented harvest of LLP groundfish in the Bering Sea during the period January 1, 1992, through June 17, 1995. An unavoidable circumstance claim requires, among other things, that the applicant's vessel must have made a documented harvest of LLP groundfish in the appropriate regulatory area after the unavoidable circumstance occurred, but before June 17, 1995. Any applicant who meets this unavoidable circumstance requirement necessarily would have made the requisite documented harvest to qualify for the Bering Sea area endorsement without recourse to the unavoidable circumstance provision. Conversely, any applicant who does not meet the documented harvest requirement for a Bering Sea area endorsement also will not meet the documented harvest requirement of an unavoidable circumstance claim. The unavoidable circumstance provision of 50 C.F.R. 679.4(k)(8)(iv) simply does not apply in a claim for a Bering Sea area endorsement. The AO concluded that the Appellant also did not qualify for an LLP groundfish license with a Central Gulf of Alaska area endorsement based on an unavoidable circumstance claim. The AO found that a crane collapse and engine repairs in 1994, and an engine failure in January 1995, did not cause the Appellant's failure to make the requisite documented harvests of LLP groundfish to qualify for the endorsement. The AO found that engine problems in February and March 1995 did not result in an engine failure, and did not meet several basic requirements of the unavoidable circumstance regulation. To Decision

02-0055 Groundfish/Crab LLP Appellant: KARUZA, John A. Disposition: IAD Affirmed Abstract Terms: - Eligibility - Regulations	Issued: 7/21/2005 Effective: 8/22/2005
Abstract: RAM properly denied Appellant an LLP groundfish license with Central Gulf and Southeast Outside endorsements. Appellant owned the F/V VIS but that vessel met only the harvest requirements in the endorsement qualification period [EQP] for an LLP groundfish license. The F/V VIS did not meet any the general qualification period [GQP] requirement for an LLP groundfish license. The F/V VIS caught groundfish in the GQP, but they were discarded at sea. To be a documented harvest, the fish must be retained and enter commerce. The F/V DEVOTION had a complete LLP-qualifying fishing history. Appellant owned the F/V DEVOTION when it made a GQP harvest but he did not own it on June 17, 1995 and does not now own the fishing history of the F/V DEVOTION. The written contract between Appellant and the current owner of the F/V DEVOTION only retained to Appellant the rights to halibut and black cod caught prior to the date of the sale, which was in December 1990. Appellant is therefore not an eligible applicant for an LLP license based on the fishing history of the F/V DEVOTION, as that term, eligible applicant, is defined by federal regulation 50 C.F.R. 679.2. NMFS does not have authority to issue the applicant an LLP groundfish license by combining the GQP fishing history of the F/V DEVOTION with the EQP fishing history of the F/V VIS. NMFS does not have authority to divide the fishing history of an original LLP qualifying vessel and does not have authority to issue two LLP licenses based on the fishing history of one vessel. To Decision

04-0006 Groundfish/Crab LLP Appellant: DUNCAN, Rex Disposition: IAD Affirmed Abstract Terms: - Eligibility - Endorsements - Rehabilitation Act of 1973	Issued: 6/29/2005 Effective: 7/29/2005
Abstract: Appellant was not eligible for an LLP groundfish license pursuant to the Rehabilitation Act. Appellant did not show that he meets the essential eligibility requirements for an LLP license and that he would receive an LLP license if NMFS made reasonable accommodations to his disability. Appellant would receive an LLP license only if NMFS made fundamental changes to the LLP. Appellant would only receive an LLP license if NMFS awarded him an LLP license based on [1] his participation in groundfish fisheries in 1979 and 1991 as a skipper and State of Alaska permit holder and [2] a determination that he would have owned a vessel with an LLPqualifiying history on June 17, 1995 but for the onset of his disability. This would be a major change because the LLP only awards licenses to applicants who actually did own a vessel on June 17, 1995 that made the documented harvests necessary for an LLP license or own the fishing history apart from the vessel. A major change to a government benefit or program is not a reasonable accommodation and is therefore not authorized under the Rehabilitation Act. Appellant was not eligible to receive an LLP license based on the unavoidable circumstance regulation, 50 C.F.R. 679.4(k)(8)(iv). Appellant did not meet at least three requirements of the unavoidable circumstance regulation. First, he did not own a vessel on June 17, 1995 "and did not now own the fishing history" that harvested groundfish between January l, 1988 and February 9, 1992. Second, Appellant did not own a vessel on June 17, 1995 "and did not now own the fishing history of a vessel" that harvested groundfish in the Western Gulf and Central Gulf after the unavoidable circumstance and before June 17, 1995. Third, Appellant did not allege facts from which he could prove that he had a specific intent to conduct directed fishing for groundfish in the Western Gulf or Central Gulf in a specific time period between January l, 1992 and June 17, 1995, the endorsement qualification period for those endorsements. 50 C.F.R. 679.4(k)(4)(ii). Appellant stated that his disability prevented him from participating in those fisheries beginning in August 2, 2005 1992. The unavoidable circumstance regulation does not excuse applicants with a disability from proving specific intent. To Decision

02-0040 Groundfish/Crab LLP Appellant: BELLAMY, Raymond Disposition: IAD Affirmed/Vacated in part Abstract Terms: - Eligibility - Endorsements - Regulations	Issued: 6/14/2005 Effective: 7/14/2005
Abstract: The IAD was affirmed with respect to the Appellant's claim for a Bering Sea LLP groundfish license endorsement, but vacated with respect to his claim for a Central Gulf of Alaska LLP groundfish license endorsement. The Appellant claimed that he qualified for an LLP groundfish license, with endorsements for the Bering Sea (BS) and Central Gulf of Alaska (GOA) areas, under an unavoidable circumstance provision in the LLP regulations. The claims were based on the illness from cancer in 1995 of the former skipper of the F/V FARRAR SEA, and who died from the illness in 2000. He had been was responsible for the day-to-day operations of the F/V FARRAR SEA in 1995. The Appeals Officer concluded that the Appellant did not qualify for a BS area endorsement because he did not satisfy one of the requirements of the unavoidable circumstance provision. Specifically, the AO found that the F/V FARRAR SEA did not make a documented harvest of groundfish in the Bering Sea after the skipper temporarily recovered from his illness on April 1, 1995, but before June 17, 1995. Therefore, the Appellant did not meet the requirements of 50 August 2, 2005 C.F.R. 679.4(k)(8)(iv)(E). The AO concluded that the Appellant qualified for the Central GOA area endorsement because he satisfied all of the criteria under the unavoidable circumstance provision with regard to that endorsement. The AO found that the former skipper's illness from cancer was an allowable basis for the Appellant's unavoidable circumstance claim because the illness was beyond his control, unavoidable, and unique to him. The AO concluded that where someone other than the owner is responsible for the day-to-day operations of the vessel, including the decisions regarding when, where, and whether to fish, it is reasonable to impute the person's intent and actions to the vessel's owner, for purposes of an unavoidable circumstances claim. The AO concluded that the specific intent to harvest Pacific cod in the Central GOA was thwarted by a circumstance that was unavoidable, unique, unforeseen, and reasonably unforeseeable to the Appellant. To Decision

05-0004 Groundfish/Crab LLP Appellant: CHOQUETTE, William Disposition: IAD Vacated Abstract Terms: - Due Process - Eligibility - Evidence	Issued: 5/31/2005 Effective: 6/30/2005
Abstract: Mr. Choquette met the requirements for an LLP license based on the fishing history of the F/V JACQUELYN R. Mr. Choquette was an eligible applicant for this license because he showed that he purchased the fishing history of the F/V JACQUELYN R. on May 15, 1995 from the F/V JACQUELYN R. Limited Partnership, which owned the vessel on that date, by the express terms of a written contract that clearly and unambiguously transferred the fishing history to him. Based on the record in this appeal, the appeals officer found that the IAD incorrectly concluded that the F/V JACQUELYN R. Limited Partnership did not own the fishing history of the vessel on May 15, 1995. Based on the record in this appeal, the appeals officer found that the IAD incorrectly concluded that Key Bank owned the fishing history of the vessel on May 12, 1995 and transferred it to Mark Maring on that date. The IAD relied on documents submitted by Mark Maring to deny William Choquette a license. Mr. Choquette requested those documents but NMFS did not provide those documents to Mr. Choquette. NMFS may not deny Mr. Choquette a license based on documents submitted by another applicant that NMFS will not provide to Mr. Choquette. A decision by the government made on secret undisclosed evidence of a disputed issue violates Mr. Choquette's due process rights to notice of the evidence on which the government is relying and a meaningful opportunity to rebut that evidence. A decision on undisclosed evidence violates the requirement in 50 C.F.R. 679.43(k) that that decisions of LLP appeals must be based on the record. A decision on undisclosed evidence makes full judicial review impossible. The usual practice of this Office is to join competing applicants for the same license in one appeal and decide which applicant meets the requirement for the disputed license or quota share. The appeals officer did not join Mr. Maring in this appeal because NMFS issued Mr. Maring a transferable LLP license based on the fishing history of the F/V JACQUELYN R. on July 28, 2000 and approved transfer of that license to a third party on February 18, 2004. To Decision

02-0034 Groundfish/Crab LLP Appellant: MELANIE, INC Disposition: IADs Affirmed Abstract Terms: - Eligibility - Endorsements - Regulations	Issued: 5/27/2005 Effective: 6/27/2005
Abstract: The Restricted Access Management Program (RAM) denied the Appellant's requests for a Bering Sea area endorsement to its LLP groundfish license, and a St. Matthew blue king area/species endorsement to its LLP crab license, based on the qualifying fishing history of the August 2, 2005 F/V MELANIE. The official LLP record showed that the F/V MELANIE did not make at least one documented harvest of Bering Sea groundfish during the EQP, as required by regulation. The Appellant disputed the official record, and claimed it should receive credit for Pacific cod harvests made in 1994 and used on its own vessel for crab bait. The Appeals Officer concluded that, under the Magnuson-Stevens Act, the alleged Pacific cod harvests made by the F/V MELANIE in 1994 were not commercial harvests because they were not, nor were they intended to be, sold, bartered or traded, but were used exclusively aboard the vessel as bait for the commercial fishing of crab. The AO found that the F/V MELANIE did not harvest any other groundfish in the Bering Sea during the EQP for the fishery. Therefore, the AO concluded that the Appellant did not qualify for a Bering Sea area endorsement on its LLP groundfish license based on Pacific cod harvests for crab bait made by the F/V MELANIE in 1994. The AO also concluded that the Appellant did not qualify for a St. Matthew blue king crab area/species endorsement on its LLP crab license under the unavoidable circumstances provision of the LLP regulations. The AO had found that the F/V MELANIE did not make a documented harvest of St. Matthew blue king crab after the alleged unavoidable circumstance in September 1994, but before June 17, 1995. Citing prior OAA decisions, the AO stated that the requirement of a documented harvest after an unavoidable circumstance, but before June 17, 1995, is an absolute requirement to qualify under the unavoidable circumstances provision. To Decision

03-0004R Groundfish/Crab LLP Appellant: WIZARD FISHERIES, INC (Reconsideration) Disposition: IAD Affirmed Abstract Terms: - Landings - Unavoidable Circumstances - Endorsements - LLP Groundfish/Crab	Issued: 4/27/2005 Effective: 5/27/2005
Abstract: Appellant filed a Motion for Reconsideration on March 21, 2005. The Appellant’s motion presented one material matter of fact that was overlooked by the Appeals Officers in the Decision, namely, the Pacific cod harvest record of the F/V WIZARD in 1992. The motion also presented a new argument and evidence regarding Bering Sea ocean temperatures and their effect on the F/V WIZARD’s ability to chill Pacific cod aboard the vessel. Although this argument and evidence were not overlooked or misunderstood by the Appeals Officers, they were considered because they raise an important question concerning the interpretation of the Pacific cod hardship provision and the characteristics of an “unavoidable circumstance” that was announced for the first time in the Decision. The issues decided were: 1. Did the Appellant have the specific intent to commercially harvest at least 100,000 pounds of BSAI Pacific cod with pot gear aboard the F/V WIZARD in 1998? 2. Was the Appellant’s specific intent thwarted by an “unavoidable circumstance” within the meaning of the Pacific cod endorsement hardship provision, 50 C.F.R. §679.4(k)(9)(v)(B)? The Appeals Officer found that: 1. The increase in ocean temperature did not involve or result in loss, damage, or breakdown of the F/V WIZARD or its gear or equipment. 2. The temperature of the ocean is an element of the environment in which all fishing vessels must operate. The Appeals Officer concluded that: 1. The temperature of the ocean is not a circumstance “unique to the license holder, or unique to the vessel,” as required by 50 C.F.R. §679.4(k)(9)(v)(B)(1)(ii). 2. Warmer ocean temperatures in the Bering Sea in 1998 cannot and did not constitute an “unavoidable circumstance” under 50 C.F.R. §679.4(k)(9)(v)(B). 3. The Appellant’s specific intent was not thwarted by an “unavoidable circumstance” within the meaning of the Pacific cod endorsement hardship provision, 50 C.F.R. §679.4(k)(9)(v)(B). 4. The Appellant does not qualify for a Pacific cod pot gear endorsement on its LLP groundfish license (#LLG1480). To Decision

01-0007 Groundfish/Crab LLP Appellant: NEWBY, Richard A. Disposition: IAD Affirmed Abstract Terms: - Eligibility	Issued: 3/24/2005 Effective: 4/24/2005
Abstract: Appellant?s vessel, the F/V RED BARON, made crab harvests during the recent participation period (RPP). The Federal regulations that were in effect when the vessel made the harvests explicitly made it unlawful for a vessel to commercially harvest crab without a vessel moratorium permit (VMP). The F/V RED BARON did not have the required permit when it made the crab harvests. Therefore, the vessel did not make lawful harvests of crab during the RPP. Because the crab harvests were unlawful, the crab harvests cannot be considered "documented harvests" of crab, for purposes of qualifying the Appellant for an LLP license. As a result, Appellant did not qualify for an LLP crab license, based on a documented harvest of crab during the RPP. Appellant claimed that he was ignorant of the VMP requirement when the vessel made the crab harvests and that his ignorance constitutes an unavoidable circumstance. Based on the facts of the case, it was evident that Appellant's alleged ignorance was not a circumstance beyond his control and cannot constitute an unavoidable circumstance under the unavoidable circumstance provision. To Decision

03-0004 Groundfish/Crab LLP Appellant: WIZARD FISHERIES, Inc. Disposition: IAD Affirmed Abstract Terms: - Endorsements	Issued: 3/3/2005 Effective: 5/27/2005
Abstract: The IAD denied the Appellant's claim for a Pacific cod pot gear endorsement to its LLP groundfish license because the Appellant's vessel, the F/V WIZARD, had not made documented harvests of at least 100,000 pounds of Pacific cod in two years, 1995 - 1999. The vessel had such harvests in only one of the five years, 1999. Appellant argued that it qualified for the endorsement under the hardship (unavoidable circumstance) provision, 50 C.F.R. 679.4(k)(9)(v)(B). That provision allows an LLP groundfish license holder to qualify for the endorsement if it can show that it held a "specific intent" to "conduct directed fishing for BSAI Pacific cod in a manner sufficient to meet the landing requirements," but the specific intent was "thwarted" by a circumstance that was unavoidable, unique to the license holder, and both unforeseen and reasonably unforeseeable by the license holder. The license holder also must show that the alleged circumstance actually occurred, that the license holder took all reasonable steps to overcome it, and that the license holder harvested any amount of BSAI Pacific cod aboard its vessel after the unavoidable circumstance occurred but before April 16, 2000. The Appeals Officers found that the Appellant lacked the specific intent to commercially harvest at least 100,000 pounds of BSAI Pacific cod with pot gear aboard the F/V WIZARD in 1998. The Appeals Officers concluded that: (1) the existence of "uniquely large and deep" fish holds on the F/V WIZARD did not constitute an "unavoidable circumstance" within the meaning of the Pacific cod endorsement hardship provision, 50 C.F.R. 679.4(k)(9)(v)(B); (2) to be "unavoidable," a circumstance must be beyond the control of the vessel owner or license holder; (3) a vessel-related "unavoidable circumstance" must involve loss, damage, or breakdown of the vessel or its gear or equipment; (4) an "unavoidable circumstance" must remove or seriously impair the vessel's pre-existing capability to August 2, 2005 meet the landing requirements for the Pacific cod endorsement; (5) the lack of knowledge and the inability to accurately predict a vessel's performance that stem from a lack of experience in a specific fishery with a specific vessel is not an "unavoidable circumstance" within the meaning of the Pacific cod endorsement hardship provision; (6) choosing the wrong refrigeration method or equipment for a particular vessel and a particular fishery is not beyond the vessel owner's control and is not an "unavoidable circumstance"; (7) the Appellant's decision to use slush ice to chill Pacific cod aboard the F/V WIZARD in 1998 did not constitute an "unavoidable circumstance" within the meaning of the Pacific cod endorsement hardship provision, 50 C.F.R. 679.4(k)(9)(v)(B); and (8) the Appellant does not qualify for a Pacific cod pot gear endorsement on its LLP groundfish license. Further Action: In a Decision on Reconsideration, the Appeals Officer withdrew the finding in the Decision that the Appellant lacked the requisite specific intent under the hardship provision, but declined to make a finding on that issue without more evidence and because such a finding would not be determinative. The Appeals Officer concluded that: (1) the temperature of the ocean is not a circumstance "unique to the license holder, or unique to the vessel," as required by 50 C.F.R. 679.4(k)(9)(v)(B)(1)(ii); (2) warmer ocean temperatures in the Bering Sea in 1998 cannot and did not constitute an "unavoidable circumstance" under 50 C.F.R. 679.4(k)(9)(v)(B); (3) the Appellant's specific intent was not thwarted by an "unavoidable circumstance" within the meaning of the Pacific cod endorsement hardship provision, 50 C.F.R. 679.4(k)(9)(v)(B); and (4) the Appellant did not qualify for a Pacific cod pot gear endorsement on its LLP groundfish license. The Decision on Reconsideration affirmed the Decision. To Decision

05-0002 Groundfish/Crab LLP Appellant: PETERSON, Ronald Disposition: IAD Vacated Abstract Terms: - Eligibility	Issued: 2/17/2005 Effective: 3/21/2005
Abstract: The appeals officer concluded that LLP crab license LLC3967 should NOT be revoked. NMFS issued LLP crab license LLC 3967 based on the fishing history of the F/V SEAWIND. RAM concluded that LLC 3967 should be revoked because the F/V SEAWIND did not meet the recent participation period [RPP] requirement in federal regulation 50 C.F.R. 679.4(k)(5)(iii, which requires a harvest of LLP crab between January l, 1996 and February 7, 1998. The applicant claimed it met "Exemption 4" to the RPP requirement at 50 C.F.R. 679.4(k)(5)(iv). August 2, 2005 Exemption 4 provides an exception to the requirement that the person must have owned the LLP qualifying fishing history at the time of the RPP harvest. Exemption 4 has two requirements: a documented harvest of LLP crab between January l, 1998 and February 7, 1998 and a contract to purchase an LLP qualifying fishing history by October 10, 1998. The applicant claimed the benefit of an LLP crab harvest from the F/V ALEUTIAN No. 1 on January 29, 1998. The applicant purchased the qualifying fishing history of the F/V SEAWIND on September 29, 1998. RAM denied Exemption 4 because the applicant had already used the RPP harvest of the F/V ALEUTIAN No. 1 to keep alive another LLP crab license - LLC3968. Relying on Bella K. of Seattle, Inc. decision in Appeal No. 02-0006 (March 25, 2004), the appeals officer concluded that the RPP fishing history of a vessel could support more than one LLP crab license. The appeals officer therefore concluded that the applicant could use the RPP harvest from the F/V ALEUTIAN No. 1 to keep alive LLP crab license LLC3967, even though the applicant had also used that harvest to keep alive LLP crab license LLC3968. To Decision

02-0054 Groundfish/Crab LLP Appellant: NORDIC FISHING, INC. Disposition: IAD Affirmed Abstract Terms: - Eligibility - Endorsements	Issued: 2/5/2005 Effective: 3/4/2005
Abstract: None of Appellant's vessels made the requisite documented harvests of crab to qualify for the requested LLP crab licenses and endorsements of those licenses. Appellant claims that various unavoidable circumstances prevented the vessels from making the required documented harvests. The vessels either did not make at least one documented harvest of crab after the alleged unavoidable circumstances, but before June 17, 1995, or did not make the requisite documented harvests of crab during the general qualifying period for an LLP crab license. Therefore, the unavoidable circumstance provision cannot apply in this case. Appellant also claimed that it would have produced sufficient evidence for the requested crab licenses and endorsements, but for the death of its accountant and consequent loss or destruction of Appellant's files. Appellant did not produce proof to support that claim. Regardless, it still is the duty of an appellant to produce sufficient evidence to support the claims made on appeal. The Appellant did not do so in this case. Therefore, the Appellant does not qualify for the requested LLP crab licenses and endorsements. To Decision

05-0001 North Pacific Groundfish Observer Program Appellant: DUTEAU, Michel Disposition: Vacated Abstract Terms: - Observer	Issued: 2/2/2005 Effective: 3/4/2005
Abstract: Mr. Duteau appealed the determination in the IAD that he can never retake the observer training course because he did not pass either of two domestic finfish identification tests he took in the third week of the course. Appeals Officer found that if the NPGOP determines that a candidate for observer certification cannot retake observer training, the certification official must make a determination that the candidate has unresolvable deficiencies in meeting the requirements for observer certification and must provide the basis for that determination. The IAD did not contain such a determination. Appeals Officer concluded that the IAD was not properly issued and that Mr. Duteau was not properly denied the opportunity to retake the observer certification training course. To Decision

02-0050 Groundfish/Crab LLP Appellant: BLUE DUTCH, LLC Disposition: IAD Affirmed Abstract Terms: - Endorsements	Issued: 1/28/2005 Effective: 2/28/2005
Abstract: NMFS records show that the F/V BLUE DUTCH did not make the requisite August 2, 2005 documented harvests of groundfish or Pacific cod to qualify for various groundfish area endorsements and a Pacific cod pot gear endorsement to its LLP groundfish license. Appellant did not produce the required evidence (a state fish ticket, Federal catch report, or other valid documentation) to show otherwise. Appellant claimed that it was not been able to obtain the fishing history of the vessel from the former owner and skippers of the vessel. Even if that were true, the Appellant still bears the ultimate responsibility for proving its case. This Office does not have the authority to release the fish ticket data in the official LLP record to the Appellant without the permission of the persons that may have harvested the fish. Therefore, Appellant did not qualify for the requested endorsements and a Pacific cod pot gear endorsement to its LLP groundfish license. To Decision

02-0035 Groundfish/Crab LLP Appellant: KARIN LYNN FISHERIES, INC. Disposition: IAD Affirmed Abstract Terms: - Eligibility	Issued: 1/25/2005 Effective: 2/24/2005
Abstract: The F/V KARIN LYNN did not make the requisite documented harvests of groundfish to qualify for an LLP groundfish license. Appellant claimed that the vessel made documented harvests of groundfish based on recorded harvests of Pacific cod that were retained aboard the vessel for crab bait. The Federal regulations did not (and still do not) require the recording of Pacific cod harvests that were used exclusively for crab bait. Also, in several decisions, we have said that to be considered documented harvests of groundfish, the fish must have been sold, bartered, or traded. The Pacific cod harvests in this case were not required to be recorded and were not "commercial" harvests of groundfish. Therefore, Pacific cod harvests of the F/V KARIN LYNN cannot constitute "documented harvests" of groundfish for purposes of qualifying for an LLP groundfish license. To Decision

02-0043R Groundfish/Crab LLP Appellant: ARCTIC BARUNA, LLC (Reconsideration) Disposition: Affirmed Decision Abstract Terms: - Unavoidable Circumstances - LLP Groundfish/Crab - Official Record	Issued: 1/21/2005 Effective: 2/22/2005
Abstract: In the Decision on Reconsideration, the Appeals Officer found that another vessel owned by the Appellant's predecessor companies did not make the requisite documented harvests to qualify the Appellant for an LLP crab license under the unavoidable circumstance provision. As a result of that finding, the Appeals Officer need not decide – and did not - whether the vessel was in fact a replacement vessel, for the purpose of meeting the unavoidable circumstance provision requirements. To Decision

02-0031 Groundfish/Crab LLP Appellant: NUKA ISLAND, INC. Disposition: IAD Affirmed Abstract Terms: - Eligibility	Issued: 1/14/2005 Effective: 2/15/2005
Abstract: The F/V NUKA ISLAND did not have the requisite fishing history to qualify for an LLP groundfish license. Appellant claimed that the vessel would have had the requisite qualifying (Pacific cod) fishing history but for a large wave that caused severe damage to the vessel. Appellant spent $500,000 to repair the vessel and has a huge financial stake in the Pacific fishery. The F/V NUKA ISLAND did not make at least one documented harvest of groundfish or Pacific cod after the damage and repair of the vessel, but before June 17, 1995 as required by 50 CFR 679.4 (k) (8) (IV) (E). Therefore, Appellant cannot qualify for an LLP groundfish license based on an "unavoidable circumstance" under the unavoidable circumstance provision in the LLP regulations. The LLP regulations do not provide for an financial hardship exception to the documented harvest requirements for an LLP groundfish license. To Decision

02-0020 Groundfish/Crab LLP Appellant: OCEAN STORM FISHERIES, INC. Disposition: IAD Affirmed Abstract Terms: - Endorsements	Issued: 1/12/2005 Effective: 2/11/2005
Abstract: Appellant's qualifying vessel, the F/V OCEAN STORM, harvested LLP groundfish only with trawl gear during the relevant period. Appellant claimed that it should be able to combine the non-trawl fishing history that it owned from another vessel, the F/V DECISION, to qualify its LLP groundfish license for a non-trawl/trawl endorsement. Even if Appellant owned the fishing history of the F/V DECISION, the LLP regulations explicitly require a non-trawl/trawl endorsement to be based solely on the fishing history of an applicant's qualifying vessel. The August 2, 2005 Appellant's qualifying vessel, the F/V OCEAN STORM, did not have non-trawl fishing history. Therefore, Appellant's LLP groundfish license did not qualify for a non-trawl/trawl endorsement. To Decision

04-0003 Groundfish/Crab LLP Appellant: KONA KAI, INC. Disposition: IAD Affirmed Abstract Terms: - Eligibility - Endorsements - Regulations	Issued: 1/7/2005 Effective: 3/2/2005
Abstract: Kona Kai, Inc., is not eligible to receive an LLP groundfish license with a Bering Sea endorsement based on the unavoidable circumstance regulation, 50 C.F.R. 679.4(k)(8)(iv). An applicant must meet every requirement of the unavoidable circumstance regulation. The unavoidable circumstance regulation, in section (E), requires that the applicant have harvested groundfish in the desired endorsement area after the unavoidable circumstance and before June 17, 1995. The requirement for a harvest before June 17, 1995 does not have any exceptions. Kona Kai did not harvest groundfish in the Bering Sea before June 17, 1995 and therefore cannot receive credit for a harvest under the unavoidable circumstance regulation. Further Action: Kona Kai, Inc., through counsel, moved for reconsideration of the Decision in this appeal. The appeals officer concluded that Kona Kai did not show that the Decision overlooked or misunderstood any material question of law or fact regarding Kona Kai's claim to a Bering Sea endorsement. The motion was denied and a new effective date of the Decision was established as March 2, 2005. To Decision

02-0013 Groundfish/Crab LLP Appellant: BLUE ALEUTIAN, LLC Disposition: IAD Affirmed Abstract Terms: - Eligibility - Endorsements	Issued: 1/7/2005 Effective: 2/7/2005
Abstract: The F/V BLUE ALEUTIAN did not make the requisite documented harvests of crab to qualify for an LLP crab license and the endorsements to the license sought by Appellant. Appellant claimed that it was unable to obtain the fishing history of the vessel from the vessel's previous owner. Even if that were true, neither NMFS, nor this Office, has the authority to disclose the fishing history of the vessel without the owner's written consent. However, this Office does have the authority to examine NMFS' records to verify the vessel's fishing history. The appeals officer in this case did so, and found that the F/V BLUE ALEUTIAN did not have the fishing history to qualify Appellant for an LLP crab license and the requested endorsements. To Decision

02-0010 Halibut/Sablefish IFQ Appellant: COULTER, Mary Ann Disposition: IAD Vacated Abstract Terms: - Quota Share Amount	Issued: 12/29/2004 Effective: 1/28/2005
Abstract: In January 2002, the Appellant purchased halibut quota shares, and 31 pounds of underage "IFQ allocation pounds not fished" from the 2001 season. By regulation, up to 10 percent of a QS holder's annual IFQ allocation can be carried over and used in the following fishing year. RAM approved the transfer of QS and underage to the Appellant, issued a 2001 IFQ permit to the Appellant, opened a 2001 IFQ account for the Appellant, and deposited the 31 pounds of underage into the account. Then, on January 31, 2002, RAM allocated IFQ pounds to the Appellant for the coming fishing season. RAM adjusted the allocation by adding 3 pounds of underage, which represented 10 percent of the Appellant's 2001 account that had not been fished. The Appellant argued that all 31 pounds of underage should have been added to her 2002 IFQ account, but RAM denied that claim in the IAD. The Appeals Officer found that RAM erred by issuing a 2001 IFQ permit to the Appellant and concluded that RAM does not have the regulatory authority to issue an IFQ permit for a fishing year that has already ended. The Appeals Officer also concluded that RAM incorrectly applied the underage carryover provision when it reduced the Appellant's underage by 90 percent for 2002 simply because there had been a post-season QS transfer. The Appeals Officer stated that the purpose of the underage provision was to encourage persons not to harvest IFQ species when they are very close to their annual IFQ account limit. This purpose had already been served because the Appellant's seller had stopped fishing 31 pounds short of his 2001 limit. Reducing the Appellant's underage for the 2002 season did not further the purpose of the regulation because the Appellant did not have the opportunity to fish any pounds in 2001. The Appeals Officer also stated that RAM's application of the underage provision improperly discouraged QS transfers between the end of the fishing season and the calculation of the next year's IFQ allocation. Finally, the Appeals Officer concluded that the Appellant was entitled to have the 2001 underage carried over to the 2005 season because that was her first opportunity to benefit from the final determination of her claim. To Decision

02-0047 Groundfish/Crab LLP Appellant: MGF FISHERIES, INC. Disposition: IAD Affirmed Abstract Terms: - Eligibility - Rehabilitation Act of 1973 - Endorsements	Issued: 12/28/2004 Effective: 1/27/2005
Abstract: MGF is not an 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 August 2, 2005 harvests required for an LLP groundfish license with Bering Sea and Aleutian Islands endorsements either by the standard criteria for this license at 50 C.F.R. 679.4(k)(4)(i) or the unavoidable circumstance criteria at 50 C.F.R. 679.4(k)(8)(iv). To Decision

02-0043 Groundfish/Crab LLP Appellant: ARCTIC BARUNA, LLC Disposition: IAD Affirmed Abstract Terms: - LLP Groundfish/Crab	Issued: 12/22/2004 Effective: 2/22/2005
Abstract: The IAD denied the Appellant's claim to an LLP crab license based on the fishing history of the F/V PACIFIC APOLLO, a vessel that sank in October 1990. RAM denied a crab license because the vessel (or a replacement vessel) lacked a documented harvest during any endorsement qualification period (EQP) and during the recent participation period (RPP). On appeal, the Appellant claimed it qualified for two area/species endorsements and a license under the EQP unavoidable circumstance provision, 50 C.F.R. 679.4(k)(8)(iv). Although the Appellant owns the fishing history of three other vessels, none of them could be considered a replacement vessel because each vessel's EQP fishing history had already been used to qualify for its own LLP crab license. The Appeals Officer concluded that neither the general qualification period (GQP) nor the EQP fishing history of a vessel can be reused to create more than one license. The Appeals Officer concluded that the F/V PACIFIC APOLLO's fishing history remained incomplete and August 2, 2005 does not constitute an LLP qualifying fishing history. Therefore, the vessel did not qualify for a transferable LLP crab license under the unavoidable circumstance provision. The Appeals Officer also stated that under the OAA decision in Bella K of Seattle, Inc., Appeal No. 02-0006 (Mar. 25, 2004), the Appellant was a recent participant, but could not meet the RPP requirements because the F/V PACIFIC APOLLO lacked an LLP qualifying fishing history. Further Action: In a Decision on Reconsideration, the Appeals Officer found that a vessel owned by the Appellant's predecessor companies did not make the requisite documented harvests to qualify the Appellant for an LLP crab license under the unavoidable circumstance provision. The Appeals Officer affirmed the Decision. To Decision

02-0025 Groundfish/Crab LLP Appellant: HANSEN ENTERPRISES, INC Disposition: IAD Affirmed Abstract Terms: - Regulations - Eligibility - Endorsements	Issued: 12/14/2004 Effective: 2/28/2005
Abstract: Hansen was found not eligible to receive an LLP groundfish license with an Aleutian Islands endorsement based on the unavoidable circumstance regulation, 50 C.F.R. 679.4(k)(8)(iv). An applicant must meet every requirement of the unavoidable circumstance regulation. Hansen did not harvest groundfish in the Aleutian Islands after the claimed unavoidable circumstance and before June 17, 1995, as required by section (E) of the unavoidable circumstance regulation. The appeals officer did not decide whether Hansen met the other requirements of the unavoidable circumstance regulation, including whether Hansen's inability to find a floating processor to take its catch in 1994 and 1995 was "unique" to Hansen or its vessel. Hansen claimed the Western Gulf endorsement because it met the harvest requirement for that endorsement that was published in the LLP rule in October 1998: one documented harvest of license limitation groundfish in the Western Gulf between January l, 1992 and June 17, 1995. Final Rule, 63 Fed. Reg. 52,642, 52,655 (Oct. 1, 1998). This rule had an error in the text, namely it omitted the phrase "in each of any 2 calendar years" before the phrase "between January l, 1992 and June 17, 1995." NMFS published a correcting amendment to the LLP rule in May 2000 that restored the omitted phrase and provided that the requirement for a Western Gulf endorsement for August 2, 2005 a catcher vessel in category length A is one documented harvest of license limitation groundfish in the Western Gulf in each of any 2 calendar years between January l, 1992 and June 17, 1995. Hansen does not meet that requirement because it harvested groundfish only in 1995. To receive a Western Gulf endorsement, Hansen must have met the requirement in current federal regulation: one documented harvest of license limitation groundfish in the Western Gulf in each of any two calendar years between January l, 1992 and June 17, 1995. The North Pacific Fishery Management Council approved this requirement when it took final action on the LLP. NMFS published this requirement for a Western Gulf endorsement when it published the proposed LLP rule. By judging Hansen's application according to this requirement, NMFS is not subjecting Hansen to a retroactive regulation. Further Action: Hansen filed a motion for reconsideration of the Decision in this appeal. The Council and NMFS could have adopted the approach implicit in Hansen's argument, namely, that a vessel would have varying lengths overall, depending on when it made particular harvests, but they did not. The LLP regulations, however, direct NMFS to assign a vessel one length overall and that is the LOA of the vessel as of a particular date: June 17, 1995. The applicant gets the benefit of the vessel's LOA on that date. If the vessel's LOA on June 17, 1995 was longer than when the vessel made some of the qualifying harvests, the applicant receives a longer MLOA on its LLP license. Thus, Hansen is receiving an LLP crab license with an MLOA of 126 feet and an LLP groundfish license with a Bering Sea endorsement with an MLOA of 126 feet. But the applicant also receives the disadvantages of the vessel's LOA on that date, namely the applicant may be judged by a standard that requires two, rather than one, documented harvests for an endorsement. The appeals officer concluded that Hansen did not show grounds to reconsider the Decision. The motion was denied and February 28, 2005 was established as the new effective date of the Decision. To Decision

03-0022 Western Alaska CDQ Program Appellant: NORTON SOUND ECONOMIC DEVELOPMENT CORP. Disposition: IAD Vacated Abstract Terms: - Community Development Quota (CDQ)	Issued: 11/26/2004 Effective: 12/7/2004
Abstract: The Appellant, one of six CDQ groups, proposed to partially fund two multi-purpose community buildings as substantial amendments to its Community Development Plan (CDP). The NMFS CDQ Program Coordinator issued two IADs which accepted the State of Alaska's recommendations that the substantial amendments be disapproved on the grounds that the proposed buildings do not start or support commercial fisheries business activities, as specified in 50 C.F.R. 679.1(e). The Appeals Officer found that the CDQ Program Coordinator used a reasonable analytical approach to determine that the projects were not primarily fisheries-related, and concluded that the coordinator properly made that determination. The Appeals Officer also found that NMFS has consistently approved non-fisheries-related CDQ projects, but has "not clearly delineated the boundaries or described the characteristics of the types of non-fisheries-related projects that it will approve, nor has NMFS provided notice or guidance to the CDQ groups of which kinds of projects will and won't be approved." The Appeals Officer found that NMFS did not articulate any rational basis for distinguishing between the non-fisheries-related projects it has approved and disapproved. The Appeals Officer found that NMFS does not interpret its regulations to require CDQ projects to be fisheries-related, and concluded that NMFS may not disapprove the substantial amendments in this appeal on the grounds that they are inconsistent with the goals and purpose of the CDQ program stated in 50 C.F.R. 679.1(e). The Appeals Officer concluded that NMFS had not met the standard for disapproving a substantial amendment in 50 C.F.R. 679.30(g)(4)(iii) and, therefore, the amendments should be approved. Further Action: RA Decision on Review affirmed Decision and gave a new effective date. To Decision

01-0026 Groundfish/Crab LLP Appellant: ERLA-N, LLC Disposition: IAD Affirmed Abstract Terms: - Endorsements	Issued: 9/16/2004 Effective: 10/18/2004
Abstract: The F/V ERLA-N did not make the requisite documented harvests of crab to qualify for an Aleutian Islands brown king crab area/species endorsement to its LLP crab license. Appellant claimed that a series of unavoidable circumstances, which consisted of unforeseen vessel repairs, prevented the vessel from making the requisite harvests for the endorsement. Appellant also claimed that it invested more than $400,000 in Aleutian Islands brown king crab fishing gear and that it is financially dependent on the fishery. The vessel did not make at least one documented harvest of Aleutian Islands brown king crab after the alleged unforeseen vessel repairs before June 17, 1995, as required by 50 CFR 679.4 (k) (8) (IV) (E) . Appellant cannot therefore qualify for an Aleutian Islands brown king crab endorsement based on an unavoidable circumstance under the unavoidable circumstances provision. The LLP regulations do not provide a financial hardship exception to the documented harvest requirements for an Aleutian Islands brown king crab endorsement. To Decision

04-0005 Groundfish/Crab LLP Appellant: SELDOVIA FISHERIES, INC. Disposition: IAD Affirmed Abstract Terms: - Eligibility - Official Record	Issued: 9/7/2004 Effective: 10/7/2004
Abstract: Seldovia Fisheries, Inc., applied for an LLP groundfish license based on the fishing history of the F/V BLUE PACIFIC. The F/V BLUE PACIFIC is in vessel length category A, which means it had a length overall of 125 feet or greater on June 17, 1995. Seldovia did not qualify for an LLP groundfish license with area endorsements for Western Gulf, Central Gulf or Southeast Outside. According to 50 C.F.R. 679.4(k)(4)(ii), the endorsement qualification period [EQP] requirement for those endorsements for a category A vessel are one groundfish harvest in each of two calendar years between January l, 1992 and June 17, 1995 in, respectively, the Western Gulf, Central Gulf and Southeast Outside District. According to the official LLP record, the F/V BLUE PACIFIC did not make those harvests. On appeal, Seldovia did not submit any evidence or argument that the official LLP record was incorrect and therefore did not carry its burden to prove that the official LLP record should be changed. To Decision

02-0042 Groundfish/Crab LLP Appellant: ARCTIC BARUNA, LLC Disposition: IAD Vacated Abstract Terms: - Eligibility	Issued: 8/31/2004 Effective: 9/2/2004
Abstract: NMFS revoked Appellant's LLP crab license based on the qualifying fishing history of the F/V SHELIKOF because the vessel did not make documented harvests of crab during the RPP. However, the Appellant made documented harvests of crab during the RPP with two other vessels, F/V BARUNA I and F/V BARUNA II. The Appellant used those RPP fishing histories to qualify for two other crab licenses, based on the combining the LLP qualifying fishing histories of the F/V SEA PRODUCER and the F/V OCEAN TEMPEST. The LLP regulations provide for an applicant to qualify for or to retain an LLP crab license, based on having participated in the crab fisheries during the RPP at the time that it owned an LLP qualifying fishing history of another vessel. The Appellant owned the LLP qualifying fishing history of the F/V SHELIKOF at the time that it participated with the F/V BARUNA I and the F/V BARUNA II during the RPP. The regulations that govern the requirements of the RPP do not preclude an applicant from using the RPP fishing history of a vessel to qualify for or to retain more than one LLP crab license. As a result, the Appellant was entitled to keep its LLP crab license based on ownership of the LLP qualifying fishing history of the F/V SHELIKOF, as a recent participant during the RPP. To Decision

02-0028 Groundfish/Crab LLP
Appellant: ARCTIC EAGLE, LLC
Disposition: IAD Affirmed
Abstract Terms:
- Endorsements

Issued: 8/27/2004
Effective: 9/27/2004

Abstract: The catcher vessel, F/V ARCTIC EAGLE, did not make enough Pacific cod harvests to qualify Appellant's groundfish license for a Pacific cod pot gear endorsement. Appellant claimed that winter opilio crab seasons, spring vessel maintenance schedules, and summer tendering contracts prevented the vessel from satisfying the requirements for the endorsement. Even if that were true, none of those claims can be construed as an "unavoidable circumstance" under the unavoidable circumstance provision in the LLP regulations because the Appellant would have known beforehand that those circumstances