Vessel Monitoring System (VMS) proves the case in court

Michele Kuruc
National Oceanic and Atmospheric Administration, U.S. Department of Commerce
Office of General Counsel for Enforcement and Litigation (GCEL)
8484 Georgia Avenue, Suite 400
Silver Spring, MD 20910, USA
<[email protected]>

1. INTRODUCTION

Vessel Monitoring Systems (VMS) are proliferating around the globe and have emerged as one of the premiere tools for increasing efficiency in fisheries enforcement and management. More than 60 countries are currently running, or in the process of implementing, VMS systems, or are engaged in pilot projects to explore their feasibility.^[69] While the utility of VMS systems may appear obvious, one crucial level of acceptance of this enforcement tool must occur in a court of law. VMS-based evidence that is used to prove a violation or offense has to be successfully subjected to courtroom scrutiny for the full benefit of this technology to be realized. This paper recounts the experiences of the United States in taking its first case to trial based exclusively on VMS evidence. It is believed this may be the first case of its kind to advance to a written decision from a judge, opining on the reliability and accuracy of a VMS system using geostationary satellites and a system of triangulation.

The particular case described in this paper involves a ninety-five foot scallop dredge vessel, the F.V. Independence and charges brought against it by the National Oceanic and Atmospheric Administration, (NOAA), a federal agency. The charges of illegal action against the vessel involved its presence in a closed area rather than fishing. This case was about establishing the accuracy of VMS regarding position verification; this was not a fishing vessel signature case. The activities giving rise to the violations which it was charged occurred on 8 and 11 December 1998 in an area closed by regulation and located in the northwestern Atlantic Ocean. More than four-dozen incursions of varying depths were made in the closed area by the F.V. Independence during its eight-day fishing trip, based on the vessel’s VMS trackline. Severe penalties and sanctions were sought against both the corporate owner of the vessel and its master. The VMS system involved was a BOATRACS/QUALCOMM.

2. BACKGROUND OF VMS IN THE UNITED STATES

VMS was initially tested by the United States in the late 1980s when a program was set up in the North Pacific involving the satellite monitoring of high-seas driftnet vessels. Some VMS units were also later placed on a small number of other foreign flag vessels as part of a court settlement agreement.

VMS was first used on a domestic fleet in the U.S. in the mid-1990s in the Hawaiian pelagic longline fleet in the Pacific, where a three-year pilot project was conducted. The Hawaiian fleet had a limited capacity of 166 vessels and about 100 vessels from this fleet were likely to have been active at any one time. A number of useful lessons were learned from this pilot project experience.

Starting in May 1998, VMS was required on scallop vessels fishing along the eastern seaboard of the U.S. The case described in this paper occurred in this scallop fishery. VMS requirements have spread on a fishery-by-fishery basis in the same way that fishery management measures have traditionally been developed in the U.S. This has been under the aegis of the Magnuson-Stevens Fishery Conservation and Management Act (1990). The Magnuson-Stevens Act is the primary federal fisheries law (16 U. S. C. 1801 et seq.). The law sets up a system of eight regional fishery management councils, consisting of appointed representatives from industry and the states, as well as other experts. They have the responsibility for determining if a fishery is in need of management, and if so, how that fishery ought to be managed. Over 1 000 species are currently under federal management. These regional councils make the initial determination about whether a VMS should be required as a part of a fishery’s management regime. Currently, approximately 1 600 vessels are required to use VMS in a number of different fisheries around the country. About 500 additional vessels will need to implement the system in January 2004. Different VMS systems are in use in different locations.

3. THE CASE

After initiating its fishing trip for scallops on 4 December 1998, the F.V. Independence was first detected inside the closed area through its VMS on 6 December. At the time, NOAA did not staff a "24/7" VMS watchstander in its regional office. In addition, although the system now sends vessels that are inside closed areas an automatic message alerting them to their position inside the closed area, the system did not do this at the time of the violations in December 1998.

NOAA’s regional VMS technician followed the F.V. Independence’s growing number of incursions from her office computer terminal and ultimately contacted the US Coast Guard and other NOAA law enforcement personnel to confer about the situation. The Coast Guard happened to have a cutter on fisheries enforcement patrol in the area and dispatched it to the vicinity of the closed area. Although coincidental, the ability of the Coast Guard to get on scene quickly was a key factor that added strength to the case as it set up verification of the illegal conduct using other methods besides VMS.

The evidence generated by the VMS system showed that the fishing vessel was identified inside the closed area dozens of times between 6 and 11 December 1998. While some of the vessel’s positions were extremely close to or on the closed area’s boundaries, many others were beyond a ½ nm distance inside and the deepest incursion was nearly 1.5 nm. Although the initial detection of the F.V. Independence inside the closed area had only VMS evidence to support it, the Coast Guard’s arrival on the scene several days later while the fishing vessel was continuing to illegally fish inside the closed area boundary set up a strong factual case for the agency as more traditional radar and eyewitness based evidence could be used to support the later incursions.

When the Coast Guard cutter approached the closed area late in the evening on 10 December, it detected the F.V. Independence on its radar. The cutter took position fixes on the fishing vessel for nearly four hours before it contacted the vessel and then boarded it. Radar showed the F.V. Independence to be repeatedly inside the closed area.

The activity underlying an additional illegal action involving false statements occurred during the Coast Guard’s boarding of the vessel. The master captain, Yacubian, lied about the quantity of scallops on deck and in the hold, understating the amounts by a wide margin. After the boarding, the unshucked scallops on board the vessel at the time, in total 91 bushels, were officially abandoned by the master and returned to the sea before the vessel was escorted into port by the Coast Guard. The vessel’s catch, worth nearly $26000, was also seized and sold upon return to shore.

The closed area violations committed by the F.V. Independence were serious. In the region where they occurred, closed area violations are considered to be some of the most serious types of violations that can be committed as many of the fisheries in this region have been overfished and consequently have been subjected to stringent limitations in an attempt to rebuild the stocks. In this particular closed area, located near the outer boundary of the US EEZ and near where Canadian and US waters abut (known as the Hague Line), fishing gear was required to be stowed. Vessel presence in the closed area was allowed only for emergencies or for compelling safety reasons. Neither justification applied in the case of the F.V. Independence. At the conclusion of the government’s investigation and following a review by NOAA attorneys^[70], the corporate owner of the vessel and the master of the vessel, Yacubian, were charged with three counts of illegal activity.

The respondents were charged with violating the following regulations: 50 CFR 648.14(a) 939, 648.81(b)(1) and 600.725(i), all of which implement the Magnuson-Stevens Act. The charges, which were brought through NOAA’s administrative system^[71], included two counts of illegally being in a closed area, once on 8 December 2004 and again on 11 December and one false statement. In addition to the $250 000 penalty, NOAA also sought revocation of the vessel and operator permits and forfeiture of the seized proceeds. The charges were brought jointly against the owner and master.

The case was "prosecuted". In the U.S. that term can also correctly describe an administrative case. To prove the violation, NOAA prosecutors had to show the vessel’s position was inside a closed area. Here, vessel position had to be proved and fishing did not need to be established as an element of the violation. In the first closed area charge, on 8 December, the VMS data was the only evidence available to prove where the vessel was. This case presented the opportunity to legally "ground truth" (i.e. test the reliability and accuracy) the VMS System in front of a judge and with challenges from the fisherman.

In the system used by NOAA, it may seek penalties less than the statutory maximum for violations and typically does so. NOAA utilizes a published penalty schedule as guidance to try and achieve fair assessments for the different types of violations occurring around the nation. But due to the egregious nature of the behaviour, NOAA prosecutors determined they would seek the maximum penalty allowed by law for each closed area violation, i.e. $110 000 per count. In NOAA’s system, repeat violators can be treated more harshly. In the case involving the F.V. Independence, the violator had a convictions record of five federal fishing violations during the nine-year period immediately preceding this closed area violation. Considering all aspects of this case, including the gravity, extent, nature and circumstances of the violation, and the respondents’ history of prior violations, and degree of culpability, NOAA determined that the maximum penalty under the statute was appropriate, as was revocation of the vessel and operator permits. These are the factors that "shall be taken into account" as enumerated in the Magnuson-Stevens Act, in addition to "other interests as justice may require".

Prior to charging the F.V. Independence case, all VMS based cases that were pending in NOAA were carefully evaluated by a team of experienced prosecutors to determine which case seemed to present the most favorable situation. The importance of a successful outcome in the first case moving forward was well understood, given the significance that was attached to VMS systems everywhere. As the stakes were high for all parties, all subsequent decisions about the case were carefully considered.

The violations committed by the F.V. Independence were not the first VMS based violations in the US, but they were the first to be contested before a judge. In the Hawaii longline fishery, no case based on VMS had advanced to a hearing stage, presumably because the fishermen believed that VMS evidence was controvertible and that a successful challenge could not mounted. VMS had also been accepted by the industry there without significant resistance. In contrast, in the northeast region where the F.V. Independence case occurred, VMS requirements were not welcomed by the industry and the region has a history of invoking litigation more often than any other region in the country. VMS has had a positive effect in Hawaii, as shortly after VMS was introduced, the number of closed area violations went down dramatically.

4. THE HEARING

The multi-day hearing before the judge was conducted in two consecutive segments. In the first part, the judge took testimony and evidence about the reliability and accuracy of this VMS system in general, as required by U.S. law, as this technology was being used as evidence for the first time. This first portion of the hearing, known as a Daubert^[72] hearing, focused exclusively on expert testimony presented by the agency about the reliability and accuracy of the system. The Respondents, using cross-examination, their experts, and legal arguments, then attacked NOAA’s case. At the conclusion of the Daubert segment, the judge ruled from the bench that he was, "[P]ersuaded ...that the BOATRACS system is a reliable system reporting positioning data accurately 95 percent of the time within 300 meters of the actual position"^[73].

During the second, more traditional, segment of the hearing, the judge began his fact finding by hearing all admissible evidence about whether VMS and all other types of evidence proved whether the specific violations were committed on those dates, as alleged by NOAA. As NOAA was the party seeking sanctions against the Respondents, the agency had the burden of proving that the VMS technology was reliable and accurate and that the VMS evidence the agency was relying on supported the charges in this case. To establish this, NOAA had to present evidence about the system and its operations and studies verifying its accuracy, in addition to the particular facts of this incident.

NOAA identified various witnesses to testify about the BOATRACS system, its operation and reliability. These witnesses included the chief operating officer of BOATRACS and several technical experts. These included both those employed by NOAA and external specialists. They explained studies of the BOATRACS system they themselves had conducted or evaluated.

NOAA also relied on an independent study of the BOATRACS system that had been done by the US Coast Guard. Its timing was fortuitous. The Coast Guard had been considering purchasing the BOATRACS systems for some of its own vessels in the Gulf of Mexico and as part of a pre-purchase evaluation by the Coast Guard, an independent study was carried out looking at a number of different technical and operational criteria, including reliability, position accuracy, error, rate of error and temporal spacing of error, coverage of the system, cost, availability of the system and latency (how long it takes messages to get through). The Coast Guard’s study had begun several months prior to the F.V. Independence incident and was not linked to the eventual litigation. A Coast Guardsman who was an expert on satellite communications and navigational tracking systems presented this study. The Coast Guard study proved to be essential to the case, as the information proffered by the BOATRACS Chief Operating Officer (COO) could not provide anything beyond anecdotal information about the reliability of its system. No systematic study had been conducted by BOATRACS of the system’s reliability.

The COO of BOATRACS testified that BOATRACS receives positioning data from the satellites, reformats it then sends it to NOAA. He testified extensively about the company, how it interacted with its customers, and especially how BOATRACS relied on customer contacts to inform them of problems with the system or its operation. He was offered as an expert on the reliability of the system, but the judge would not accept him as such, because the COO could produce no reports showing how, or if, the company had been tested for reliability. Instead, he said they relied on lack of complaints from customers to support this assumption. This was deemed insufficient for purposes of establishing reliability in a scientific and evidentiary sense. While the COO could not establish the system’s reliability, he was able to establish that the VMS system was fully operational on the dates in question.

NOAA engaged another expert in the field of geo-positioning and satellite systems solely for the litigation. He was a recently retired physics instructor from the Coast Guard Academy and a graduate of Yale University and had impressive credentials. He was enlisted to evaluate the system and to conduct a limited literature review. He also reviewed the reports of the other government experts on position verification and reliability. He testified about the incident of 11 December where he compared the position reports of the radar to the VMS position reports from that date. He concluded that because there were so many data points inside the closed area, especially those in excess of ½ nm, "It becomes a virtual mathematical impossibility that the F.V. Independence was not in the closed area". The ½ nm was an important metric as it was a significantly greater distance than the error in both systems. Based on his work, and evaluation of nearly 3 000 data points from the studies he examined, he also testified that the system was accurate at least 95 percent of the time to within 300 metres, which ultimately became a key factual finding of the judge^[74]. His testimony was useful not only for the expertise he brought to the process, but because he was able to convey highly technical information in such a way as to make it comprehensible to the judge and non-technical personnel.

In addition to the external experts, NOAA used several NOAA personnel as witnesses in its case, including a computer specialist who had developed the base station software to support the VMS reporting requirement. He had also done a small scale, in-house test using only five vessels where VMS position reports were compared to different GPS reports. NOAA also had fact-specific witnesses testify, including the VMS technician whose job it was to monitor the daily data reports provided by BOATRACS showing vessel positions.

The agency’s evidence was presented in standard hard copy form but the critical VMS evidence was also loaded on a CD-Rom. The VMS tracklines and the various VMS based reports were then projected in the courtroom, enlarging their size, enhancing visual impact and graphically depicting the large number of incursions and depth of the incursions.

Some of the Respondents’ primary defenses were based on the master’s testimony but his version of what happened was not always consistent with the testimony of NOAA’s witnesses. The judge determined the appropriate level of credibility to give this testimony. The Respondents also employed their own expert witness who attempted to discredit BOATRACS VMS.

The Respondents claimed that the evidence NOAA presented at the hearing did not support the agency’s claims and charges. They claimed NOAA did not discharge its burden of proof. They maintained that NOAA had not proven that VMS was a reliable system in general, in spite of the judge’s conclusion on this point. They also claimed that NOAA had not introduced reliable relevant evidence to specifically prove the violation of 8 December. They argued that there was no evidence showing that the system was working properly and accurately that day and it could not simply be assumed based on other generalized tests of the system. They also highlighted that NOAA did not call a QUALCOMM witness to establish the link between the two systems or the proper functioning of QUALCOMM on the date in question.

In spite of the judge’s ruling that the VMS system was reliable at the end of the Daubert hearing, the Respondents continued to contest use of the system and argued over its unreliability. The Respondents criticized BOATRACS for failing to verify that the information it received from QUALCOMM was accurate and that there was no proof given that either system - BOATRACS or QUALCOMM - was working properly at any particular time. They also claimed that BOATRACS did not have redundancies set up in its system to evaluate possible error. They attacked the conclusion of 95 unshucked scallops accuracy by claiming that the data set used to draw these conclusions was too small and that it did not address the remaining 5 percent. The remaining, 5 percent they suggested was populated with erroneous readings that could cluster together in time and space and thus these errors provided the data points showing the F.V. Independence inside the closed area. However, as the BOATRACS data was insufficient, in their view, this too, was not able to be conclusively demonstrated.

The lack of quality control studies by the vendor, BOATRACS, resulted in repeated criticism by the Respondents. While the COO of BOATRACS provided lots of anecdotal reports of the system’s reliability, the judge did not consider this adequate to legally establish the system’s reliability. NOAA’s paucity of similar controls, especially to determine proper functioning on the days in question, also drew fire from the Respondents.

They argued about the accuracy of the Coast Guard’s radar and alleged calibration errors in Coast Guard navigational equipment. The degree of error, according to the Respondents, was great enough that it would properly place the F.V. Independence on the outer boundary of the closed area or outside the area altogether. On a variety of specific factual issues, they claimed that the F.V. Independence was not capable of going the speeds NOAA claimed (and VMS and radar supported) that it must have traveled. They also alleged that the various turning maneuvers shown on the tracklines were inconsistent with traditional scallop tows. The master also claimed that the vessel’s lights remained on during the entire trip making it highly visible, in contrast to the testimony of the Coast Guard that the lights were extinguished when the cutter approached it during the early hours of 11 December.

At the conclusion of the hearing, both parties filed written briefs with the judge, arguing their position. Once the briefing was completed and the record closed, the judge took the case under advisement and issued his decision.

5. CURRENT STATUS

The judge’s Initial Decision is attached (Appendix I), so that his conclusions about the case can be reviewed^[75]. He found for NOAA and imposed the $250 000 penalty and revoked the vessel and operator permits. The Respondents appealed the judge’s decision to the Administrator of NOAA through administrative channels. The Administrator affirmed the judge’s decision with a written decision of his own^[76]. The case remains active, as the Respondents have now appealed further into the Federal District Court. At the District Court level^[77], they will get a review of the existing record of all of the proceedings held in NOAA. Further analysis by this author is not possible at this time, as the legal proceedings are ongoing.

Additional cases have been brought in several nations involving VMS, including Spain, the UK, Australia and New Zealand, as well as additional cases in the US. Some of these cases have involved the switching off of VMS units when they were required to be activated, as opposed to position violations.

APPENDIX I

United States of America Department of Commerce National Oceanic and Atmospheric Administration

INITIAL DECISION

The National Oceanic and Atmospheric Administration (the Agency) commenced this administrative proceeding with the filing of a Notice of Violation and Assessment (NOVA) on June 14, 2000.

The NOVA charged Respondents, jointly and severally, with three counts of violation of the Magnuson Fishery Conservation and Management Act (Magnuson Act) 16 USC § 1857(1)(A) and its implementing regulations found at 50 CFR§§ 648.14(a)(39), 648.81(b)(1), and 600.725(i). The Agency assessed a civil money penalty jointly and severally in the amount of $250,000.00.

The Agency also issued a Notice of Permit Sanction (NOPS) asserting the same alleged violations set forth in the NOVA, which seeks to revoke the federal fishing vessel permit of the F/V Independence (Official Number 58581) owned by Respondent Lobsters, Inc. and the federal vessel operator permit of Respondent Lawrence M Yacubian (Number 10000756).

Count I of the NOVA alleged that at or about 23:21 hours, local time, on December 8, 1998 [which equates to 04:21 hours on December 9, 1998, Greenwich Mean Time (GMT)] at or near 41°17.1’ North latitude/66°27.6’ West longitude, representatives, employees, or agents of Lobsters, Inc., the owner of the F/V Independence (official number 585811), including Lawrence M. Yacubian, the vessel’s Master, unlawfully entered an area specified in 50 C.F.R. § 648.81(b)(1) during a period in which that area was closed to such entry in violation of 50 CFR § 648.14(a)(39). Specifically, the F/V Independence, a scallop dredge vessel, while operated by the named Respondents, was determined to be approximately 1.36 nautical miles inside Closed Area II on December 8, 1998.

Count II of the NOVA alleged that at or about 00:51 hours, local time, on December 11, 1998 [which equates to 05:51 hours on December 11, 1998, Greenwich Mean Time (GMT)] at or near 41°16.75’ North latitude/66°27.6’ West longitude, representatives, employees, or agents of Lobsters, Inc., the owner of the F/V Independence (official number 585811), including Lawrence M. Yacubian, the vessel’s Master, again unlawfully entered an area specified in 50 C.F.R. § 648.81(b)(1) during a period in which that area was closed to such entry in violation of 50 CFR §648.14(a)(39). Specifically, the F/V Independence, a scallop dredge vessel, while operated by the Respondents, was determined to be approximately. 65 of a nautical mile inside Closed Area II on December 11, 1998.

Count III of the NOVA alleged that shortly after 02:07 hours, local time, on December 11, 1998, at or near 41°16.3’ North latitude/66°25.5’ West longitude, Lawrence M. Yacubian, the Master of the F/V Independence (official number 585811) and an employee of Lobsters, Inc., unlawfully made a false oral statement to an authorized officer concerning the harvesting of fish in violation of 50 C.F.R. §600.725(i). Specifically, Captain Yacubian told LTJG Timothy Brown of the U.S. Coast Guard, when asked him to state the amount of scallops on board the F/V Independence, Respondent Yacubian said there were approximately 4 or 5 bushels of scallops per side on the deck of the F/V Independence and approximately 2,500 pounds of scallops in the vessel’s hold, when in fact there were approximately 17 bushels of scallops per side on deck (not counting what was in the shucking houses) and more than 4,300 pounds of scallops in the vessel’s hold.

Both Respondents filed hearing requests in a timely fashion. During the pre-trial phase Respondents requested discovery from the Agency of information regarding their assessment of the civil money penalty. The Agency raised objections contending that the scope of the discovery request improperly intruded into the Agency’s processes in assessing a penalty particularly the legal theories and thought processes of Agency counsel.

At that same time, another Agency matter (In the Matter of AGA Fishing Corp.) was pending before this judge which sought similar discovery. A discovery order was issued in that case which allowed for limited discovery of the Agency. Agency counsel there sought a reconsideration and interlocutory appeal. The reconsideration was granted and an order allowing for interlocutory appeal was also issued. Because the discovery issues in this case paralleled those in AGA Fishing Corp. an order staying this matter was issued on December 7, 2000 pending the decision of the Administrator of the Agency.

Subsequently, in The Matter of AGA Fishing Corp., 2001 NOAA LEXIS 1 (March17, 2001) the Administrator of the Agency resolved the discovery dispute and established a guideline for similar discovery in that and similar cases. An order lifting the stay in this matter was then issued on March 21, 2001 and the parties proceeded to discovery and preparation for trial.

The hearing was held in Boston, Massachusetts, commencing on June 19th and ending on June 22, 2001.

At the outset of the hearing on June 19th, a preliminary session was held to determine the reliability of the technology known as Boatracs. This was characterized to the parties as a Daubert hearing in conformity with the decision of the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and subsequent related cases.

Expert witnesses were qualified to present their opinion regarding that technology. A restatement of that decision follows prior to rendering a decision on the merits of the NOVA and NOPS.

RELIABILITY OF THE BOATRACS TECHNOLOGY

The parties offered expert evidence for the purpose of determining the reliability of certain satellite based geographic positioning technology and the data produced by that technology. The Agency contended that this technology provided through the Boatracs system was sufficiently reliable so that the data produced by that technology, which identifies the geographic position of respondents, was probative of the actual position. Respondents contend that the Boatracs system was not reliable and thus the data should not be used to determine the actual position of respondent.

This judge has wide discretion to determine whether to admit the testimony of an expert witness. See e.g., United States v. Tocco, 200 F.3d 401, 418 (6th Cir. 2000). Expert testimony need not be necessary to be admissible; rather, it must reasonably assist the administrative law judge as the trier of fact in understanding or determining a matter in issue. The task of the judge under this rule is to ensure that the expert’s testimony rests on a reliable foundation and is relevant to the task at hand. Daubert supra. Since the Administrative Procedures Act and the Agency rule at 15 CFR § 904.251(b) [Evidence] essentially says that any and all evidence which is relevant is admissible in administrative proceedings that is, all evidence that is relevant, material, reliable, and probative, and not unduly repetitious or cumulative, is admissible at the hearing. The formal rules of evidence do not necessarily apply to these proceedings.

From the Daubert decision and its progeny I discern the Daubert factors may be used, not to exclude evidence, but to determine the reliability of expert testimony.

Nevertheless, because the Agency procedural rules, in 15 CFR § 904.240(e)(3) only address the discovery of the substance of the facts and opinion to which an expert witness is expected to testify and provide a summary of the grounds for each opinion, I have been guided in this preliminary Daubert hearing by the Federal Rules of Evidence, particularly FRE 702, 703 and 704 and Daubert to determine the reliability of the evidence presented by each qualified expert.

FRE 702 states that a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if it will assist the trier of fact to understand the evidence or to determine a fact in issue. In administrative proceedings the administrative law judge is also the trier of fact. Thus, I have considered the proffered evidence and testimony of the parties’ respective experts in that light.

FRE 703 allows an expert’s testimony to be based on facts or data perceived by the expert or made known t the expert at or before the hearing. In addition, if the facts relied upon by the expert are of a type reasonably relied upon by experts in the particular field when forming opinions, the facts need not be admissible in evidence.

Furthermore, FRE 704 allows an expert with an exception pertaining to criminal cases, to testify in the form of an opinion that embraces the ultimate issue to be decided by the trier of fact. I perceive the ultimate issue to be decided by me, as the trier of fact, is whether the Respondents, on the day(s) in question, were physically within the Closed Area II Closed Area. The issue leading to that is whether the Boatracs technology was sufficiently reliable to have accurately determined the geographical position of Respondents within the Closed Area II Closed Area.

This judge qualified Benjamin Peterson, PhD, Peter Dana, PhD, and LCDR Gregory W. Johnson as experts on the subject of the reliability of the Boatracs technology. This judge also admitted into evidence the reports of each of these experts. Also admitted was the report Eighth District BOATRACS Test and Evaluation Final Report, prepared for the United States Coast Guard Systems Directorate, and prepared by the United States Coast Guard, Research and Development Center, Advanced Communications Technology Project dated July 1998 (Coast Guard Boatracs Report) [A^[78]- 39]. Also admitted were A-40 (Position Error vs. Time) and Exhibit 41 (Figure 4-4 Scatter Plot of positions from the MCT located on roof of the ESD New Orleans).

Charles J. Drobny the Chief Operating Officer of Boatracs is qualified as an expert on the operation or workings of the Boatracs system which information system includes geographic positioning data collected for use by the National Marine Fisheries Service. He is capable of educating me how the system is structured, how the information is obtained, how is it processed and what is done with it in relation to the National Marine Fisheries Service. His expert testimony is thus limited to how the system operates. He is not qualified to offer an opinion on the reliability of the system.

A detailed description of the BOATRACS system is found in A 39. In summary, BOATRACS provides a two-way data transmission and position location (to within 300 meters using triangulation) within the Continental United States and 200 to 400 miles offshore. User mobile communication terminals (MCT) located on fishing vessels are in continuous contact with a geostationary satellite, which relays messages between the ship and the earth station. Messages are accessed from and sent to the earth station through a variety of terrestrial links. These links are QUALCOMM leased Ku-band transponders (seven at the time of the hearing) on existing satellites.

The G-Star GE-1 satellite provides the communications service. A second satellite is used for the positioning service. Both satellites receive each transmission and a position is calculated at the earth station from the transmitted signal using a triangulation algorithm.

When BOATRACS receives the positioning data (in binary format) from the satellite it is then reformatted and sent to NMFS. Each morning a NMFS employee downloads the data and checks it for any incursions into closed areas. If some are found the Coast Guard is contacted who then follows up on that information.

Mr. Drobny related much anecdotal information with respect to the experience of his customers and the accuracy of the BOATRACS system. I have rejected the anecdotal evidence as insufficiently reliable because it had not been screened for confounding factors such as alternative uses than positioning information. However, I did recognize that such evidence could be the impetus for further study. I found that was the case with the Coast Guard study. The Coast Guard sought to corroborate or confirm the claims of BOATRACS that the system was reliable enough to report accurately geographic positions 95% of the time within 300 meters of the actual position.

I find the Coast Guard study to be an off the shelf study and was not prepared for the purposes of litigation. It was prepared prior to the time that might be in question in this case. Thus, I have concluded that the Coast Guard study which presented a statistically sound and reasonable conclusions regarding the reliability and the accuracy of the system’s ability to identify the position of fishing vessels employing that system on board that vessel.

I conclude, that after hearing Dr. Dana, Dr. Peterson and LCDR Johnson I am persuaded based on the Coast Guard study alone that the BOATRACS system is a reliable system reporting positioning data accurately 95% of the time within 300 meters of the actual position. I also concluded that the system would reliably report positions 98 to 99 percent of the time within 400 to 450 meters of the actual position. See Transcript June 20, 2001 at pages 178-180. The Boatracs technology for determining a fishing vessel’s geographic position is reliable and probative of its actual geographic position.

FINDINGS OF FACT^[79]

Lobsters, Inc of New Bedford, Mass. Owns the F/V Independence bearing state registration number 585811 [A- 6, page 2]. Its Certificate of Documentation shows a mortgage lien as of April 1, 1987 in the amount of $760,000.00 [A- 8, page 3]. It has a federal fisheries permit No. 410127 authorizing it in 1998 to fish for Northeast Multispecies limited sea scallops, non-regulated Multispecies, ocean quahog, summer flounder, American lobster, Squid/Butterfish, and Atlantic Mackerel [A-6, page 1].

Lobsters, Inc is a Massachusetts corporation with its principal office at 114 Macarthur Drive, New Bedford, MA 02740. Its principal officers are Lawrence M Yacubian, President, and Levon Yacubian, Treasurer/Clerk. Its board of directors consists of the officers and Susan A Yacubian.

Lawrence H Yacubian has been issued a federal vessel operator permit Number 10000756, which expires September 6, 2001 [A- 7].

On Sunday, December 6, 1998 Linda Galvin a NMFS employee observed the data produced by the NMFS Northeast Vessel Monitoring System (VMS) by running the daily VMS report. This VMS data is produced by the BOATRACS system. The daily report disclosed five incursions into Closed Area II^[80] by the F/V Independence. All five incursions were calculated to be between 0.3 and 0.5 nautical miles inside the area according to data received by Boatracs from that vessel’s on board MCT (A-28, p.1).

The next day’s report, for December 7, 1998, indicated the F/V Independence had been inside closed area II 20 times, again from.3 to.5 nautical miles, (A-10, p.1).

The report for December 8th showed 2 more such incursions (A-10, p.1). The daily report for Wednesday, December 9, 1998, showed the F/V Independence to have been inside closed area II 17 times. These positions ranged from.3 to 1.4 nautical miles inside closed area II (A-10, p.1).

Ms. Galvin called the U.S. Coast Guard’s District I headquarters in Boston, Massachusetts to inform them of the incursions. After briefing the Northeast VMS team by E-mail (A-10, p.2) Ms. Galvin continued to monitor position reports regarding the F/V Independence. Additional incursions inside closed area II were noted on December 10th and 11th 1998 (A-10, pp.2, 4). Ms. Galvin proceeded to prepare individual daily printouts for the entire fishing trip of the F/V Independence, which began on December 4th and ended on December 12th, 1998 (A-10, p.2). The deepest incursion into closed area II during the fishing trip by the F/V Independence occurred at 23:21 hours, local time, on December 8, 1998 (i.e., 04:21 hours on December 9, 1998, GMT) (A-10A) at or near 41°17.1’ North latitude/66°27.6’ West longitude, a position 1.36 nautical miles^[81] inside closed area II (A-10, pp. 1-2, A-10C (1-5), A-29, T-Vol.2, pp.175-176, 285-311).

At 21:54 hours, local time, on December 10, 1998, the U.S. Coast Guard Cutter Wrangell (WRANGELL) while on a fisheries enforcement patrol in Closed Area II acquired a contact on the cutter’s radar which Coast Guard personnel designated contact "alpha"(A-12, p.1). Coast Guard personnel from that point continuously monitored the radar contact until it was identified as the F/V Independence at 01:47 hours on December 11, 1998 (A-12, p.3). During the nearly 4 hours that the F/V Independence was tracked on radar by the WRANGELL a number of "fixes" of its position were taken. These fixes were made using the Wrangell’s Differential Global Positioning System (DGPS) to determine the cutter’s position combined with bearing and range information from the cutter to contact alpha taken from the Wrangell’s radar and gyrocompass [A-12, T-Vol.3, p. 136, 140-147] and plotted on NOAA Chart 13204, 11th edition [A-12, p.1, A-20, T-Vol.3, pp. 157-159].

Prior to departure for this patrol, the Wrangell’s DGPS unit, radar, and gyrocompass were determined to be functioning properly, as indicated by in-port checks of those systems [A-15, A-16, A-17, T-Vol. 3, pp. 249-270]. During the continuous tracking of contact alpha, the contact moved in and out of closed area II [A-11, pp.1-2, A-12, pp. 1-3, A-19, A-20, A-21]. Based on the experience of the Coast Guard members and their observations, F./V Independence was engaged in fishing [Exhibits A-10D, A-11, p. 2, A-12, p. 1, 3; T-Vol.3, pp. 136-137].

At 00:51 hours, local time, on December 11, 1998, from 10.7 nautical miles away, the Wrangell’s personnel fixed F/V Independence’s (Contact Alpha) position at or near 41°16.75’ North latitude/66°27.6’ West longitude which, when compared to the boundary of closed area II placed the F/V Independence approximately.95 nautical miles inside closed area II, its furthest incursion into the area that evening [A-19 and A-21). After a brief VHF radio discussion between the WRANGELL and the F/V Independence, a boarding party headed by LTJG Brown left the cutter in a rigid hull inflatable boat (RHIB) and were safely on board the F/V Independence at 02:07 hours (A-11, pp. 2-3). According to several boarding party members they observed an unusually large amount of scallops on the F/V Independence’s deck and in the shucking houses (A-11, p. 3, A-13 and A-14). The scallops and fish lying on deck in the vicinity of the dredges were still wet and alive (A-11, p. 3, A-13, p.1). LTJG Brown observed a dry erase board in the F/V Independence’s wheelhouse listing the names and hull numbers of approximately 30 Coast Guard Cutters that perform northwest Atlantic fisheries patrols (A-11, p. 4). Brown also observed e-mail on the vessel’s Boatracs VMS unit that appeared to have been sent by the F/V Edgartown and received by the F/V Independence at 06:25 hours on December 10, 1998. That e-mail read as follows; "Subj. aircraft (fixed and rotor) and cutters you are in the right place, no hassles, no questions. Tell Joe he is not missing anything." (A-11, p. 6). When questioned by LTJG Brown, Captain Yacubian stated that he was having no problems with his Boatracs VMS unit that he knew of, and in fact, both Yacubian and Brown observed together "he had a signal presence light and the screen indicated that the status was good" (A-11, p. 3). Respondent Yacubian indicated that he had experienced no mechanical problems that evening affecting his ability to maneuver his vessel (A-11, p. 3). When informed that the WRANGELL had plotted him approximately.9 nautical miles inside closed area II at 00:51 hours that evening, Yacubian denied that his vessel had entered the area and said that information concerning where he was fishing was maintained on his Boatracs and the Coast Guard should check with Boatracs to get that information. At that point LTJG Brown and Respondent Yacubian worked together to send e-mails to Boatracs requesting such information (A-11, p. 5). In response to questioning by LTJG Brown about whether the captain kept a personal fishing logbook, Respondent Yacubian replied that he kept a notebook (A- 11, p.5). LTJG Brown recorded information from the top exposed page of this notebook, which was labeled "trip # 10." When asked by LTJG Brown what some of the writing in the notebook meant (T-Vol.4, pp. 320-321), Yacubian replied that he could not remember (A-11, p. 5).

The Coast Guard escorted the F/V Independence to New Bedford, Massachusetts in order to seize her catch. On the way to New Bedford, Respondent Yacubian signed an abandonment form relating to the unshucked scallops on his vessel and these scallops, totaling 91 bushels, were shoveled into bushel baskets and returned to the sea (A-11, p. 6, A-34). The WRANGELL followed the F/V Independence to New Bedford where its catch consisting of 4,325 pounds of Atlantic sea scallops, plus small amounts of monkfish, other fish and lobsters, was seized by NMFS Special Agent Louis Jachimczyk and sold to the highest bidder for $25,972.26 (see A-5, p. 1, A-2 and A-4). The proceeds of the sale were put in an escrow account pending the resolution of this case (A-5, p. 4).

DETERMINATION OF VIOLATIONS

Count I

Count I alleges that respondents were found 1.36 nautical miles inside Closed Area II on December 8, 1998. The accuracy of this finding was based upon the Vessel Monitoring System employed by the Agency. That system utilized the Boatracs technology.

The record demonstrates respondents were within Closed Area II at the time and place shown by the Boatracs data. Moreover, the Boatracs data further demonstrate that this was not an incidental intrusion into the closed area, but between December 6 and December 8 there were numerous such intrusions.

The pattern of incursion further demonstrates that the purpose was to engage in fishing. Indeed, Respondents’ fishing was quite successful. I have not seen any evidence that Respondent was merely transiting the area with all scallop dredges stowed and secured, and was doing so for a compelling safety reason. See 50 CFR § 648.81(b)(2)(i) and (ii).

I therefore conclude that Respondents unlawfully entered into closed area II as specified in 50 CFR § 648.81(b)(1) during the period of time in which that area was closed to entry and thus violated 50 CFR § 648.14(a)(39).

Count II

Count II alleges that on December 11, 1998 Respondents were determined by the U. S. Coast Guard cutter Wrangell personnel from their on board radar to have been within Closed Area II fishing for scallops. Additionally, the Boatracs data underlying the Agency’s VMS also shows that respondents intruded into this closed area on that date. See Transcript, Vol. III, p. 243 (LT Brown) and A-10 (a)-(e).

Respondents have vigorously contested the accuracy of the Wrangell radar readings even contending that based on their expert’s evidence that the Wrangell radar had such significant bearing error that the actual positions of the Respondents were outside of Closed Area II.

Respondents have presented a scenario in which the USCGC Wrangell’s radar had an average bearing error of up to two degrees resulting from inaccurate calibration of the radar. Additionally, they claim the Wrangell’s radar had a six-degree bearing error which is proven by various calculations between the Wrangell and the F/V Independence radar, and their respective Differential GPS (DGPS) and GPS systems when the F/V Independence was being escorted back to port. They say that this bearing error (4 to 6 degrees) actually locates the F/V Independence outside of Closed Area II eastern boundary during the time involved here. See Respondents’ Post Trial Memorandum at page 13-14 citing Respondents’ Exhibit 55, Transcript Vol. IV pp. 395-396 (Prof. Ouellette).

Much of this claim of bearing error is based on Professor Ouellette’s expert testimony and report.^[82] At the trial I purposefully inquired of Prof. Ouellette how he arrived at the conclusion there was a 6-degree bearing error. He attempted for some time to demonstrate how he came to that result. He was given extra time to do so in an environment without undue pressure of the witness stand. He returned to the witness stand, recommenced this explanation, but it was so unintelligible I was still unable to understand what he was describing. To this day, I have no idea how he arrived at that figure. His testimony was not helpful to me as the fact finder. His opinion is therefore not reliable and has not been considered by me in rendering a decision on this count. See T Vol. IV at pp 390 ff. [examination by Judge]

Based on the evidentiary record before me, I must conclude that Respondents were in fact in Closed Area II on December 11, 1998. They were not there for mere transit but for fishing. Respondents thus violated 50 CFR §648.14(a)(39).

Count III - False Statement

Respondent Yacubian is alleged to have made false oral statements in violation of 50 CFR § 600.725(i) which provides as follows:

It is unlawful for any person to do any of the following:

(i) Make any false statement, oral or written, to an authorized officer concerning the taking, catching, harvesting, landing, purchase, sale, offer of sale, possession, transport, import, export, or transfer of any fish, or attempts to do any of the above.

The Agency says that the false oral statements consist of answers to questions posed to Respondent Yacubian by LTJG Brown after having boarded the fishing vessel. The questions and answers were:

Q. "How much scallops he had on deck?"
A. "He stated that he thought he had four or five bushels per side."
(A 11, p. 4)
Q. "How much scallops he had in the hold?"
A. "He stated approximately 2500 lbs."
(A 11, p. 4)

The Agency says in fact there were approximately 17 bushels of scallops per side and more than 4,300 pounds of scallops in the vessel’s hold. See A-11, pp. 5-7, A-13, p.2 and T Vol. III, p. 217 cited in Agency’s Initial Brief at p. 10.

Respondent Yacubian says that his answers were not false because he only made estimates (apparently evidenced by his use of the words thought and approximately) and besides he had no intent to deceive LTJG Brown.

Neither the Agency’s Initial Brief, nor its Reply Brief address the arguments raised by Respondent Yacubian that the statements were only estimates, and the regulation requires a showing of intent to deceive.

Two questions are raised by Respondent Yacubian’s arguments. First, can an estimate be a false statement? Second, does 50 CFR § 600.725(i) require proof of intent to deceive?

An estimate is the expression of an opinion or value^[83]. An expression is obviously a statement. It logically follows an estimate is a statement. See United States v. Hartness, 845 F.2d 158 (8th Cir. 1988) cert. den. 488 U.S. 925 (1988) [an over- estimate of annual income on an applicant’s Farmer’s Home Administration loan application is a false statement for purposes of 18 USC § 1001]. Thus, Respondent Yacubian’s argument that his estimate of the number of bushels per side and the amount of scallops in the hold does not constitute a statement is rejected.

The word false means not genuine or true^[84]. Here, the estimates were not objectively true. They weren’t even close. In truth, the number of bushels of scallops on deck per side was 17. The hold held, in truth, 4300 pounds of scallops^[85].

Respondent’s false oral estimates constituted false oral statements. United States v. Hartness, supra.

Regardless, Respondent says that an intent to deceive is a necessary element of the violation of 50 CFR § 600.725(i). He cites In the Matter of Alba, 1981 WL 37358 (NOAA 1981) and In the Matter of Albert Adams and F/V Lillie Louise, 2001 WL 128899 (NOAA 2001).

My review of Alba and Albert Adams and F/V Lillie Louise discloses that the Administrative Law Judge made no finding on the subject of intent to deceive as an element of the violation. Neither the decision in Alba nor the decision in Albert Adams and F/V Lillie Louise support Respondent Yacubian’s argument.

I also reviewed other NOAA decisions involving false statements. Overall they tell me that intent to deceive is not an essential element of a false statement charge. Each of those cases involved a regulatory provision substantially identical to that here with the only significant difference being a particular fishery was involved.

However, the decision of the ALJ in the Matter of William Train 3 O.R.W. 140; 1983 NOAA LEXIS 47; (NOAA 1983) is instructive. There the ALJ said:

I recognize that the law and quotation from the regulation require something more than does the simple biblical abjuration "Thou shalt not lie." But not much. In situations such as this, where an authorized officer makes inquiries respecting margin fishery related activity he is presumptively entitled to a truthful response. [note omitted] Here the area of inquiry was a proper one, the Respondent was not entitled to "Lie a little bit"... (Emphasis supplied)

This tells me that the inquiry of an authorized officer must be a proper one. Here, a proper inquiry is one that concerns taking, catching, harvesting, landing, purchase, sale, offer of sale, possession, transport, import export or transfer of any fish. If the inquiry elicits a false statement then the maker of that false statement has violated the regulation. The maker may not "lie a little bit." The regulation does not include words, which would allow for a finding that Intent to deceive is an element of the regulatory violation. This is not a criminal statute where a mens rea may necessarily be implied. See In re Northern Wind Seafood, 1998 NOAA Lexis 1 (1998).

I find that LTJG Brown, a Coast Guard officer was an authorized officer.^[86] His inquiry of Respondent Yacubian concerned the taking, catching, harvesting, landing and possession of scallops. The inquiry was a proper one.

Respondent’s answers were untrue. Respondent Yacubian violated 50 CFR § 600.725(i). Whether Respondent Yacubian intentionally sought to deceive LTJG Brown is, however, a factor to be considered in determination of the civil penalty as required by 16 USC § 1858(a). In re Northern Wind Seafood, 1998 NOAA Lexis 1 (1998).

AGENCY’S REQUEST FOR DISCOVERY SANCTIONS

The Agency has requested that I impose a sanction upon Respondents for failing to timely turn over Respondent Yacubian’s notebook or logbook at his oral deposition.

The request is based on 15 CFR § 904.240(f). This rule states in relevant part:

(f) Failure to comply. If a party fails to comply with any subpoena or order concerning discovery, the Judge may in the interest of justice:

(1) Infer that the admission, testimony, documents or other evidence would have been adverse to the party;

(2) Rule that the matter or matters covered by the order or subpoena are established adversely to the party; (emphasis added)

The rule says there must be failure to comply with a subpoena or order concerning the discovery. I am unaware of any subpoena for Respondent’s logbook or notebook. The only order of which I am aware regarding a discovery deposition is the order I issued on April 12, 2001, which provided in that respect as follows:

Discovery

Discovery in this matter is extended and will conclude by May 31, 2001. Response times to interrogatories or requests for production are shortened to 10 days. Depositions may be noticed at the convenience of the parties, counsel and witnesses. Agency’s expert witness reports may be amended to conform to the requirements of Federal Rule of Civil Procedure 26(a)(2)(B) no later than the close of business 10 days from the date of this order. Respondents shall have 10 days from the filing date of the amended report, to file a rebuttal report. (Emphasis supplied)

My reading of the Agency’s sanction request shows me the only order relied upon is the quoted order. This order neither addresses nor directs the production of any documentary material let alone any notebook or logbook. At most this amended discovery order merely authorizes the taking of depositions. Again, I did not order the production of any documentary material.

Consequently, when the Respondents failed to produce the notebook as requested in the deposition notice, the Agency had the right to file a motion, which requested that an order be issued directing its production^[87]. No such request was ever made until trial and then only at the last did the Agency demand its production and that demand was in response to a partial production of the notebook by the Respondent in their defense. When that request was made at trial the logbook was produced to the Agency whose counsel claimed it was the first time they had seen the document. See Transcript, Vol. IV, p. 245, lines 16-17.

In sum, I read 15 CFR § 940(f) to require that an order first have been issued directing the production of the documentary material. The only order issued by me concerning discovery relevant to this request was one, which merely authorized the taking of depositions. That order did not direct the production of any documentary material. Since there is no order directing the production of any documentary material, which has not been complied with, I am not empowered by the regulation to make any adverse inference as a sanction for failure to comply^[88].

Consequently, the Agency’s request is denied.

DETERMINATION OF CIVIL PENALTY

The Magnuson Act and the applicable rule each require me to take into consideration when assessing a civil monetary penalty, the nature, circumstances, extent and gravity of the alleged violation, the respondent’s degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require. See 16 USC § 1858(a), 15 CFR §904.108(a). Here the statute and regulation also require me to take into consideration the degree Respondents’ culpability particularly the extent of their intent to violate the closed area II boundaries. See In the matter of Northern Wind Seafood, Inc., 1998 NOAA Lexis 1 (1998).

The Agency has requested a civil money penalty be assessed against Respondents, jointly and severally, in the amount of $250,000.00. It also seeks the revocation of Respondents respective permits.

The Agency says these penalties are justified because of three factors. First, Respondents have a history of violating the Magnuson Act and its rules citing Agency Exhibits 32 and 33. Second, the record evidence demonstrates that Respondents repeatedly entered closed Area II between December 4 and December 11, 1998. Third, the record shows Respondent Yacubian intended to enter Closed Area II and fish in spite of the prohibition.

Lastly, the Agency asserts, regardless of any claim to the contrary, Respondents have the ability to pay^[89] the assessed money penalty, and because the violations were repeated and intentional a revocation of Respondents’ permits is also justified.

Respondents say that NOAA has, without justification, imposed the most severe civil penalty and permit sanction available under the regulations. They say the Agency failed to produce evidence of any mitigating or aggravating factors it considered in assessing the penalties. They point to the failure to consider the biological impact of the violation, the willful or intentional nature of the violation, extent of cooperation, prior record, knowledge of the violation, and impact on viability of the regulatory scheme. See Respondents’ Post Trial Memorandum, p. 40.

The Nature, Circumstances, Extent and Gravity of the Alleged Violation

Respondents entered into an area closed to fishing. The closure was for the purpose protecting against the depletion of Multispecies.^[90] It is to protect marine resources and allow for the recovery of fisheries stocks. Fishermen, who enter these closed areas to fish, unfairly compete with their fellow fishermen who obey the closure rules. Thus, entry into a closed area to fish is by its very nature a most serious undermining of the efforts to protect these precious resources.

The Respondents’ entry into Closed Area II was not incidental, accidental or in the course of transit through the area. It was numerous and to fish for scallops. Respondents’ fishing appeared quite successful with 17 bushels of scallops on deck and over two tons (4300 pounds) below. And this was only from a few days of activity.

Respondent contends the intrusions into Closed Area II had no discernible effect on the Multispecies stock preservation purpose of the closure. As a result, the purpose of the closure was not offended and thus they should not be assessed as severely as the Agency suggests^[91].

In my short time hearing NOAA cases this is the most serious intrusion into a closed area I have ever seen. Regardless of whether Respondent had harvested Multispecies they certainly harvested numerous sea scallops included within the closure restraints.

But I also must consider the deterrent effect any penalty is to have upon the individual involved and others within the industry. Certainly, knowledge that a significant penalty will be assessed against a person who intrudes into a closed area should be of some moment to others. If they believe that insignificant, cost of doing business, penalties would be assessed then potential wholesale violations of the closed areas would abound.

History of Prior Offenses

Respondents have a history of prior violations.

1. October 17, 1989 possessed on barrel of female American lobster. Penalty assessed -- $1,000.00 Settled $750.00. [A 33a]

2. September 4, 1991 landed 10,300 lbs of Atlantic Sea Scallops meats averaging 39.7 meats per lb exceeding 38.5 meats per lb standard. Seized proceeds of sale -- $9,141.36. Penalty assessed -- $2,000.00 Settled $1,000.00 and forfeiture of seized proceeds. [A 33b]

3. March 19, 1994 landing 7,585 lbs of Atlantic Sea Scallops without providing notification under the Days at Sea allocation program. Penalty - letter of warning. [A 33c]

4. April 10, 1994 failure to comply with scallop average meat count standard (10,931 lbs by sampling averaged 54.2 meats per lb rather than allowed 33 per lb) and smaller than permitted dredge gear (rings averaged 3.12 inches). Penalty assessed -- $45,000. Settled $15,000.00 penalty [A 32]

5. March 26, 1998 fishing with scallop dredge gear and harvesting 440 lbs of Multispecies when limited to 300 lbs of regulated Multispecies with such gear. Penalty assessed -- $30,000.00. Settled $1,000.00.[A 32].

Again, I must comment in the time I have served as a judge on these cases this is the most number of prior violations presented to me in any case I have heard. These five violations, over the past 12 years, together with the three count violations in this case suggest to me, a history of lack of respect for the law and regulations governing the fishing industry.

Respondents’ Degree of Culpability

Section 308(a)[16 U.S.C. §1858(a)] of the Magnuson Act provides in civil penalty cases, the Secretary is to take into account the offender’s degree of culpability in assessing the amount of the civil monetary penalty. Stated another way, the Secretary is to consider, inter alia, the state of mind of the alleged violator, such as knowledge, purposefulness, negligence or recklessness. In re Northern Wind Seafood, 1998 NOAA Lexis 1 (1998).

The Agency vigorously argues that Respondents intended to intrude into Closed Area II in order to fish for scallops, and succeeded skillfully and with stealth. Frankly, from the Boatracs evidence showing the locations of the Respondents in Closed Area II, I must agree. See A 10c 1-5, A 10d. A 10e. These plots show me Respondents skirted along the boundary darting in and out, staying as long as they believed they were not being spotted.

Respondents’ claim they did not intentionally intrude into Closed Area II is incredible and is rejected. I find Respondents purposefully intruded into Closed Area II to fish for scallops. Not only did they intentionally intrude they did so with impunity.

Ability to Pay

Respondents plead poverty. I have examined the financial data provided by each party and the arguments of each in their closing briefs. I just don’t believe Respondents are impoverished.

Moreover, Respondents argue the Agency assessment is out of proportion to the violation involved and reeks with punitive measure.

The Agency has summarized the assets available to Respondents to pay a civil money penalty. Agency Brief at p. 11-12. It is shown that Lobsters, Inc has a net worth of approximately $250,000.00. Respondent Yacubian has an equitable value in real estate of approximately $930,000.00 to $1,830,000.00.

The Agency recommended assessment is $250,000.00. Respondents have the ability to pay that assessment.

Permit Sanction

Often in these cases the Agency argues that a respondent can pay a penalty over time from the proceeds of their future fishing activity. Here the Agency points out that Respondent Yacubian has admitted that scalloping is better than its ever been. Agency Brief at p. 12.

But a penalty cannot be paid over time if there is no ability to earn the money to do so because the permits have been revoked. So frankly, I am puzzled by the Agency’s argument regarding the Respondents’ cash flow.

Nevertheless, permit revocation is what the Agency desires. Respondent, naturally, argues vigorously against liquidation of assets and removal from the applicable fisheries.

Removal of intentional and repeat violators does have a salutary appeal. Together with a significant monetary penalty, it would send a clear and loud message to the industry that repeated violations, especially purposeful and sustained incursions into closed areas will bring meaningful sanctions. Anyone hearing that message would be expected to heed its warning. And, of course, it has the effect of removing the repeated and intentional violator. Whether the Agency ever collects a single penny from Respondents is not the point.

I will revoke the Respondents’ permits.

ORDER

The federal fishing vessel permit of the F/V Independence (Official Number 58581) owned by Respondent Lobsters, Inc. and the federal vessel operator permit of Respondent Lawrence M. Yacubian (Number 10000756) are hereby REVOKED.

Respondents are jointly and severally assessed a civil money penalty in the amount of $250,000.00.

A failure to pay the above penalty to the Treasurer of the United States within thirty (30) days from the date on which this decision becomes the final Agency action will result in interest being charged at the rate specified by United States Treasury regulations and an assessment of charges to cover the cost of processing and handling the delinquent penalty and further, in the event the penalty or any portion thereof becomes more than ninety (90) days past due, the Respondent may be assessed an additional penalty charge not to exceed six (6) percent per annum.

Any petition for review of this decision must be filed within thirty (30) days of this date, with the Administrator of the National Oceanic and Atmospheric Administration as subject to the requirements of 15 CFR § 904.273.

CERTIFICATE OF MAILING

I hereby certify that I have sent the attached pleading to the following persons as indicated:

Mitch McDonald
NOAA Office of General Counsel
One Blackburn Drive
Gloucester, MA 01930
Federal Express - Gov’t Overnight

Pamela L. Lafreniere
Counsel for Respondents
404 County Street
New Bedford, MA 02740
Federal Express - Gov’t Overnight

Jeff Angley
Counsel for Respondents
One Bowdoin Square
Boston, MA 02114
Federal Express - Govt’ Overnight

Dated: December 3, 2001.

Legal Assistant to Administrative
Law Judge

Technology solutions and international opportunities for improved maritime domain awareness

B. Botwin
Strategic Analysis Division
Office of Strategic Industries and Economic Security^[92]
Bureau of Industry and Security, US Department of Commerce
14th and Constitution Ave., N.W. Washington, D.C. 20230 USA
<[email protected]>

1. INTRODUCTION

The management and protection of deep-sea fisheries raises unique challenges to national navies, coast guards, and fishery ministries and organizations on a global basis. At the outer boundaries of national Exclusive Economic Zones, deep-sea fisheries are often beyond the range, loitering capacity and programmatic workload of responsible agencies. Further, most national agencies use aging and obsolete fleets of ships and aircraft, and limited budgets are focused on expensive operation and maintenance costs. New off-the-shelf technologies have not been identified or incorporated into current maritime assets. Competing requirements for deep-sea capable assets -search and rescue/maritime surveillance, illegal drug and migrant-interdiction, anti-piracy/maritime transportation, marine coastal environmental protection and counter-terrorism - and competing agency mission priorities, often relegate fishery-related requirements to a low priority.

The United States Government, working through the United States Coast Guard (USCG), has implemented a comprehensive programme to address these multifaceted challenges. The USCG has initiated through the Integrated Deepwater System Program or "Deepwater":

• a performance based philosophy focused on capabilities not on numbers of assets

• a partnership with US industry as the system integrator and

• a required "Integrated System of Systems" design for surface, air, communications, sensors and logistics systems.

The overall goal of Deepwater is to maximize operational effectiveness while minimizing total ownership costs.

Deepwater will also allow for seamless interoperability within the US Coast Guard and with the US Navy and NATO assets. It will also enhance interoperability with other federal, state and local agencies. These same capabilities can be set up and used, in whole or in part, by international partners or purchasers of Deepwater assets. In addition, Deepwater participation provides the potential for an industrial base and economic benefits to any international partner through industrial participation, job creation and economic development. These industrial and economic factors may be critical selling points to ministries and organizations responsible for the management and control of continental shelf and deep-sea regions to order to justify financial and asset acquisition and support costs.

The US Department of Commerce, Bureau of Industry and Security is working closely with the US Coast Guard to develop deepwater-related international partnerships and joint ventures. In addition, the US Department of Commerce is ensuring that Deepwater participants also have access to financing, training and technology transfer opportunities. Regional arrangements involving multiple partners can also be supported by utilization of Deepwater assets. Opportunities for access to US Government fisheries protection and enhancement programmes as well as monitoring, control and surveillance systems are also potential benefits of participation in the Deepwater program. In sum, the Integrated Deepwater System Program provides the best value for governments and organizations responsible for the management and protection of deep-sea fisheries.

2. DEEPWATER PROGRAM OVERVIEW

Over the next 15-20 years, the USCG will modernize its aging fleet of ships, aircraft, helicopters and their sensors, and communications and logistics infrastructure through the $17 billion Deepwater program. In June 2002, the USCG selected Integrated Coast Guard Systems (a joint venture between Lockheed Martin and Northrop Grumman) as the Deepwater systems integrator.

Deepwater missions typically require an extended, continuous presence at sea; the ability to operate in severe environments; long transits to reach the operating area; or a combination of these factors. They can be conducted in ports, coastal waters or many miles offshore. Deepwater assets can be used for a variety of missions, e.g. fisheries and environmental protection, drug and immigration interdiction, aids to navigation, anti-piracy, search and rescue, monitoring of Exclusive Economic Zones (EEZ), counter-terrorism and homeland security. International cooperation and coalition building are promoted through the export of Deepwater assets and sub-systems. Countries and organizations can enhance their own internal interoperability through the use of Deepwater systems.

When complete, Deepwater will include three classes of new cutters (national security, offshore patrol and fast response) and their associated small boats, a new fixed-wing manned aircraft fleet, a combination of new and upgraded helicopters, and both cutter-based and land-based unmanned air vehicles (UAVs). All of these assets are linked with state-of-the-art Command, Control, Communications and Computers, Intelligence, Surveillance and Reconnaissance (C4ISR) systems and are supported by an integrated logistics regime.

These new assets, which possess common systems and technologies, common operational concepts, and a common logistics base, will give the US Coast Guard a significantly improved ability to detect and identify all activities in the maritime arena, a capability known as "maritime domain awareness". Because these assets have been designed around the task sequence - Surveil, Detect, Classify, Identify and Prosecute - are used to perform all of the Coast Guard missions, the system components will have the flexibility to respond, not only to the full range of current Coast Guard responsibilities, but to emerging threats and missions as well.

Additional information about Deepwater is available at <http://www.icgsdeepwater.com> and <http://www.uscg.mil/deepwater/international.htm>.

3. FINANCING OPPORTUNITIES

A number of US Government agencies can provide financial and related assistance to facilitate the acquisition of Deepwater assets. These are as follows.

The US Export Import Bank (EXIM) supports short, medium and long-term financing to creditworthy international customers and working capital guarantees to US exporters. This is accomplished through a mix of direct loan, guarantees, export credit insurance and working capital guarantee programmes.

The US Department of Transportation, Maritime Administration (MARAD) provides loan guarantees to US and foreign ship-owners for financing US flag vessels or vessels for export constructed or reconditioned at US shipyards. The borrower and project must show an ‘income stream" to participate in the MARAD programme.

The US Trade and Development Agency (USTDA) promotes US participation in developing and middle-income countries. USTDA assists through the funding of various forms of technical assistance, feasibility studies, orientation visits, specialized training grants, conferences and business workshops, in building mutually beneficial partnerships between US and overseas project sponsors. This can result in the completion of high quality, successful projects including maritime law enforcement, in host countries.

Additional information is available at <http://www.exim.gov> (EXIM); <http://www.marad.dot.gov> (MARAD) and <http://www.tda.gov> (USTDA).

4. TECHNOLOGY TRANSFER AND INDUSTRIAL PARTICIPATION OPPORTUNITIES

Countries have the opportunity to work with the US Department of Commerce’s National Oceanic and Atmospheric Administration (NOAA) on a number of projects related to fisheries management, protection and enhancement. NOAA programmes are compatible with the Deepwater program.

NOAA has developed an automated system for recording biological and oceanographic data during a trawl-based fishery resources survey. The Fisheries Scientific Computer System (FSCS) is replacing manual data recording and shaving months off the time required to make cruise data available for use. These data are essential to providing an accurate picture of marine fish stock abundance, condition and distribution over time - information that helps evaluate and support actions taken by fishery managers.

NOAA’s Monitoring, Control and Surveillance Network (MCSN) provides real-time information sharing among international fisheries enforcement officials to combat illegal and unreported fishing activities.

With regard to industrial participation, countries participating in the Deepwater program have the opportunity to work with the Deepwater US prime contractors to develop industrial relationships that can include job creation, manufacturing enhancement and exports. Successful acquisition and implementation of Deepwater related assets can also lead to host countries creating sustainable fisheries as well as marine eco-tourism industries. These types of projects can qualify for regional and global bank financing opportunities.

Additional information regarding FSCS and MCS is available at <http://www.nmfs.noaa.gov>. Additional information on Deepwater can be found at <http://www.icgsdeepwater.com>.

5. CONCLUSION

The Deepwater program can provide a cost-effective solution to countries and organizations facing the unique challenges of deep-sea fisheries management and protection. The US Department of Commerce is pleased to be part of the Deepwater Team and looks forward to assisting interested parties better understand the maritime domain awareness benefits that can be derived from Deepwater assets and related opportunities for international partnerships, financing, technology transfer and industrial participation.