U.S. v. F/V Alice Amanda, s. 91-7555

Citation987 F.2d 1078
Decision Date26 February 1993
Docket NumberNos. 91-7555,91-7575,s. 91-7555
PartiesUNITED STATES of America, Plaintiff-Appellee, v. F/V ALICE AMANDA, with its fishing gear, furniture, appurtenances, stores and cargo, Vessel Documentation Number 943737, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. F/V ALICE AMANDA, with its fishing gear, furniture, appurtenances, stores and cargo, Vessel Documentation Number 943737, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Waverley Lee Berkley, III, Jett, Berkley, Furr & Padgett, Norfolk, VA, argued, for defendant-appellant.

Jacques B. Gelin, Environment and Natural Resources Div., U.S. Dept. of Justice, Washington, DC, argued (Barry M. Hartman, Acting Asst. Atty. Gen., Dirk D. Snel, Jean E. Williams, John A. Bryson, Environment and Natural Resources Div., U.S. Dept. of Justice, Washington, DC, Kenneth E. Melson, U.S. Atty., Susan L. Watt, Asst. U.S. Atty., Norfolk, VA, Patricia Kraniotis, Office of General Counsel, Nat. Oceanic and Atmospheric Admin., Silver Spring, MD, on brief), for plaintiff-appellee.

Before WIDENER and LUTTIG, Circuit Judges, and SHEDD, United States District Judge for the District of South Carolina, sitting by designation.

OPINION

WIDENER, Circuit Judge:

This case requires us to interpret the regulations that govern fishing for the Atlantic Sea Scallop. Between October 9, 1989 and October 12, 1989, agents of the National Marine Fisheries Service thawed, sampled and counted ten pounds of Atlantic sea scallops from the catch of the Alice Amanda. Based on the count, the agents declared the entire catch illegal and demanded the proceeds from the sale of the catch. The owner, on the advice of counsel, refused to deliver the proceeds.

A month later, the Alice Amanda was boarded and seized by the Coast Guard. See 16 U.S.C. § 1861. The United States then initiated this forfeiture proceeding against the Alice Amanda in the district court. See 16 U.S.C. §§ 1860, 1861. The ship was released on the posting of a $300,000 bond. See 16 U.S.C. § 1860(d)(1)(B). After a bench trial, the district court ordered that the United States recover $25,000 in partial forfeiture of the Alice Amanda.

The Alice Amanda appeals the order of forfeiture. The United States cross-appeals, arguing that the district court abused its discretion by setting the amount of forfeiture too low. We now reverse the order of forfeiture. Accordingly, we decide the government's cross-appeal is without merit.

I
A. Statutory and Regulatory Background

The Magnuson Fishery Conservation and Management Act (the Act), 16 U.S.C. § 1801 et seq., was enacted in 1976 to preserve the nation's fishery resources. The Act establishes an Exclusive Economic Zone in the waters off the coast of the United States, extending from the seaward boundary of each of the coastal States to 200 nautical miles offshore. 16 U.S.C. § 1811. Within this zone, all fish are subject to the exclusive fishery management authority of the United States. The Act is administered by the Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service (the Agency). See 16 U.S.C. § 1802(20). The Act divides the Exclusive Economic Zone into eight regions and creates a Regional Fishery Management Council for each region. 16 U.S.C. § 1852.

A Fishery Management Council's primary responsibility is the preparation and amendment of Fishery Management Plans for various fisheries. The fishery involved in this case is the Atlantic Sea Scallop

Fishery, which covers the species Placopecten magellanicus, the Atlantic sea scallop, in the entire Atlantic coast Exclusive Economic Zone. See 50 C.F.R. §§ 650.1 et seq. The New England Fishery Management Council has primary responsibility for the Atlantic Sea Scallop Plan.

After a Council has adopted a Fishery Management Plan, or an amendment to an existing Plan, it forwards the Plan and suggested regulations to the Agency. The Agency then undertakes notice and comment rulemaking procedures established by the Magnuson Act if it proposes to give effect to the Council's action. 16 U.S.C. § 1854(a) and (b). The Magnuson Act also allows the Agency itself to prepare a Fishery Management Plan, or an amendment to a Plan, under certain circumstances. 16 U.S.C. § 1854(c). Regulations to implement such a Plan also must go through notice and comment rulemaking procedures. 16 U.S.C. § 1854(c)(2).

As a final method of controlling fishing practices, the Act provides for the promulgation of emergency regulations by the Secretary without regard to the existence of a Fishery Management Plan. 16 U.S.C. § 1855(c). The Act requires that "[a]ny emergency regulation promulgated ... shall be published in the Federal Register together with the reasons therefor." 16 U.S.C. § 1855(c)(3)(A). Emergency regulations are limited in duration to a maximum of 180 days. 16 U.S.C. § 1855(c)(3)(B).

The regulations governing the Atlantic Sea Scallop Fishery are codified at 50 C.F.R. Part 650. The regulations require vessel permits, control certain aspects of possession and landing and control the minimum size of scallops permitted in possession. See 50 C.F.R. §§ 650.4, 650.7, 650.20, and 650.21. Only the minimum size requirements are at issue here.

The regulations use two size measures. For scallops in the shell, they specify a minimum shell height. 50 C.F.R. § 650.20(a). For shucked scallop meats, the regulations specify a maximum number of meats per pound. Id. This latter measure is known as the "meat count." 1 All other things being the same, a higher meat count indicates smaller scallops. Because the catch of the Alice Amanda had been shucked at sea, meat count, rather than shell height, is the relevant measure in this case.

At the time that the Alice Amanda landed her catch, the maximum allowable meat count was 33 meats per pound. 2 50 C.F.R. § 620.20(a), (c)(1). The regulations make it unlawful to "[p]ossess, at or prior to the first transaction in the United States, any nonconforming Atlantic sea scallops," 50 C.F.R. § 650.7(a), 3 including those that exceed the maximum allowable meat count.

The procedure for measuring the meat count is governed by 50 C.F.R. § 650.21. This section provides in relevant part as follows:

Compliance with the specified meat count and shell-height standards will be determined by inspection and enforcement up to and including the first transaction in the United States as follows:

(a) Shucked meats. The Authorized Officer will take one-pound samples at random from the total amount of scallops in possession. The person in possession of the scallops may request that as many as ten one-pound samples be examined as a sample group. A sample group fails to comply with the standard if the averaged meat count for the entire sample group exceeds the standard. The total amount of scallops in possession will be presumed in violation of this regulation if the sample group fails to comply with the standard.

As indicated, a catch is presumed to be in violation when the average meat count from samples exceeds the maximum allowable meat count.

The Magnuson Act makes it "unlawful ... to violate ... any regulation ... issued pursuant to" the Act. 16 U.S.C. § 1857(1)(A). The Act provides that violations may be punished by a civil penalty up to $25,000 per violation, 16 U.S.C. § 1858(a), or by forfeiture of the catch, its fair market value, or the fishing vessel. 16 U.S.C. § 1860(a). In this case, the government sought forfeiture of the fishing vessel, the Alice Amanda, under section 1860.

Regulations implementing the Fishery Management Plan for Atlantic Sea Scallops were first enacted in 1982. See 47 Fed.Reg. 20,776 (May 14, 1982). From the outset, the principal management measure for shucked scallops was a maximum meat count. With minor exceptions, the sections defining the manner in which the meat count was to be determined have not changed. 4

In 1982, when the regulations were adopted, Atlantic sea scallops were landed in one of two ways, in the shell, or shucked on ice. During the fishing voyage, shucked scallops were placed in cheesecloth bags and packed on ice. Because scallops could not be kept fresh on ice for longer periods, the average voyage lasted 10 days.

Around 1988, a new technology, the freezer vessel, began to be used in scallop fishing. The Alice Amanda is a freezer vessel. By 1989, when this case began, the Alice Amanda still was one of only a handful of freezer vessels in the Atlantic sea scallop fleet.

The Alice Amanda is equipped with freezer bins below decks and a plate freezer on deck. Instead of storing scallops on ice, they are quick frozen in the plate freezer then stored below decks in the freezer bins. On the Alice Amanda, scallops are shucked soon after being collected in the ship's dredges. The shucked scallops then are rinsed in a bucket and allowed to drain in a washer, a container equivalent to a large colander. The drained scallops then are packed in cheesecloth bags. Each bag holds sixteen to eighteen pounds of scallops. The bags are placed in the plate freezer, where they are kept at twenty below zero for four hours. The bags of frozen scallops then are transferred to the freezer bins below decks. Because it was able to store the scallops frozen, instead of packed in ice, the Alice Amanda 's fishing trips averaged thirty days, twenty days longer than the average trip for a boat storing shucked scallops on ice. The longer trip allows a larger catch, the catch at issue here being 19,668 pounds.

Upon being landed frozen, a catch from the Alice Amanda routinely was unloaded, weighed and then thawed for processing. The scallops were thawed by immersing the frozen mass in a mixture of water and tripolyphosphate. The scallops then were weighed a second time, sorted by size and packaged for sale.

B. Frozen Scallop Sampling Procedure

Beginning in early 1988, Agency personnel...

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