     [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

          United States Court of Appeals
                     For the First Circuit


No. 00-2244

                 FRONTIER FISHING CORPORATION,

                     Plaintiff, Appellant,

                               v.

              NATIONAL MARINE FISHERIES SERVICE,

                      Defendant, Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

      [Hon. George A. O'Toole, Jr., U.S. District Judge]


                             Before

                      Lynch, Circuit Judge,

                 Bownes, Senior Circuit Judge,

                   and Lipez, Circuit Judge.



     Jeffrey T. Angley, with whom Phillips & Angley was on brief,
for appellant.

     John A. Bryson, Attorney, with whom Lois J. Schiffer,
Assistant Attorney General, Charles R. Shockey, Attorney, and
Gene S. Martin, Jr., Office of Regional Counsel, National
Oceanographic and Atmospheric Administration, were on brief, for
appellee.
                              March 16, 2001



           BOWNES, Senior Circuit Judge.           The plaintiff, Frontier

Fishing Corporation ("Frontier"), brought suit in the United

States District Court for the District of Massachusetts claiming

that the action of the defendant, the National Marine Fisheries

Service    ("NMFS"),   was    arbitrary,        capricious,   an    abuse    of

discretion, otherwise not in accordance with law, or without

observance of its own procedure.            The district court granted

summary judgment in favor of the defendant and the plaintiff

appeals.    For the reasons set forth below, we find that the

plaintiff's claim is without merit and we affirm the district

court.

                              I.   BACKGROUND

           Frontier    is    the   owner   of    the   fishing     vessel   F/V

Settler.   The NMFS issues and regulates fishing permits pursuant

to the Magnuson-Stevens Fishery Conservation and Management Act,

16 U.S.C. § 1801.      The NMFS issued two permits to Frontier for

the F/V Settler: a full-time limited access scallop permit and

a   full-time   multispecies       fleet-days-at-sea      fishing     permit.

These permits were renewed annually from 1994 until 1997.




                                     -2-
             On May 28, 1997, Patricia A. Kurkul of the NMFS wrote

a   letter    to   Frontier   explaining   that   the    F/V   Settler's

"multispecies limited access permit was issued in error" because

of amendments made to the NMFS' regulations which effectively

precluded the F/V Settler from holding dual permits.            The NMFS

offered Frontier the option of choosing one of the two permits.

The letter indicated that if Frontier did not make a choice, the

NMFS would cancel the multispecies limited access permit.

             On August 8, 1997, Frontier wrote a letter to Dr.

Andrew Rosenberg, Regional Director of the NMFS, requesting

reconsideration of the agency's determination that the issuance

of both permits was an error.           On September 9, 1997, Kurkul

responded to Frontier's letter to Rosenberg.            In essence, this

letter informed Frontier that the agency's decision to terminate

one of the permits would stand, but Frontier would have the

right to present its claim to a hearing officer for further

review.      The letter concluded:      "A NMFS Hearing Officer will

contact you so that you may present evidence that your vessel

used a scallop dredge and a multispecies otter trawl in 1988,

1989 or 1990."1




     1    This would enable the F/V Settler to hold both permits
simultaneously because it would be classified as a "combination
vessel." See 50 C.F.R. § 648.2 (1997).

                                  -3-
             Joel G. MacDonald, Regional Counsel for the NMFS, was

selected to serve as the hearing officer.                             Frontier made a

written submission to him and submitted documentary evidence.

On January 12, 1998, MacDonald prepared a written recommendation

for the regional director which was favorable to Frontier:                             he

recommended that the F/V Settler be given a dual permit, finding

that   it    met    the   criteria       for    a    combination       vessel     permit.

Regional Director Rosenberg noted on MacDonald's recommendation

that he did not concur.               Frontier did not receive a copy of

MacDonald's recommendation.

             On     March      23,   1998,      Rosenberg          wrote   to    Frontier

indicating that he had not yet reached a final decision, but

that he did not expect to grant its request.                         Rosenberg offered

various other options to Frontier and indicated that Frontier

had    thirty      days   to    select    one       of   the   options.         Frontier,

however, persisted that it be granted combination status.                              On

May 6, 1998, Rosenberg issued his final decision.                               He denied

Frontier's appeal, and determined that the F/V Settler did not

meet the criteria for a combination vessel permit.                              He found

that   the    vessel      was   eligible       only      for   a    full-time     scallop

permit.

             Frontier sought judicial review in the district court,

alleging that the NMFS did not follow its own appeal procedure


                                          -4-
and    that   the        issuance      of   only     one   permit     "was    arbitrary,

capricious,         an    abuse     of      discretion     and    otherwise         not    in

accordance         with    the    law."       Both    parties     moved      for    summary

judgment.      The district court found that "Frontier's claim that

NMFS failed to comply substantially with [its] procedure for

review of permit denials is without merit."                      (Footnote omitted).

In a well-reasoned decision, the district court entered judgment

in favor of the NMFS, holding that "[n]o substantial error in

the process is apparent, and there is consequently no basis for

overturning the agency's lawfully arrived at determination."

Frontier now appeals the district court's decision, and persists

with its claim that the agency failed to follow its own appeal

procedure.

                                    II.      DISCUSSION

              We    review       the   grant    of    summary     judgment         de   novo.

Assoc. Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 109 (1st

Cir. 1997).         In reviewing an agency's determination, we apply

the same standards as the district court.                         Id.     We give great

deference to the agency and cannot substitute our judgment for

that of the agency, even if we disagree.                        Id.     In fact, we can

only    set    aside       an    agency's      action      if    it     is   "arbitrary,

capricious, or otherwise contrary to law."                       Id. (citing 5 U.S.C.

§ 706(2)(A)-(D)).


                                              -5-
          Frontier argues that the NMFS did not follow its own

appeal   procedure 2 and, therefore, its action was arbitrary,

capricious and contrary to law.     The appeal procedure is set

forth in 50 C.F.R. § 648.4(a)(1)(H)(2) (1997):

          The Regional Administrator will appoint a
          designee who will make the initial decision
          on the appeal.   The appellant may request
          review of the initial decision by the
          Regional Administrator by so requesting in
          writing within 30 days of the notice of the
          initial decision. If the appellant does not
          request a review of the initial decision
          within 30 days, the initial decision shall
          become the final administrative action of
          the Department of Commerce.     Such review
          will be conducted by a hearing officer
          appointed by the Regional Administrator.
          The hearing officer shall make findings and
          a    recommendation    to   the     Regional
          Administrator [whi]ch shall be advisory


    2     The right to appeal the denial of a permit is created
by 50 C.F.R. § 648.4(a)(1)(H)(1) (1997):

          Any applicant eligible to apply for an
          initial limited access multispecies hook-
          gear permit who is denied such permit may
          appeal   the    denial   to   the   Regional
          Administrator within 30 days of the notice
          of denial. Any such appeal must be based on
          one or more of the following grounds, must
          be in writing, and must state the grounds
          for the appeal:
               (i)    The information used by the
          Regional Administrator was based on mistaken
          or incorrect data.
               (ii) The applicant was prevented by
          circumstances beyond his/her control from
          meeting relevant criteria.
               (iii)   The   applicant   has  new   or
          additional information.

                              -6-
            only.   Upon receiving the findings and a
            recommendation, the Regional Administrator
            will issue a final decision on the appeal.
            The Regional Administrator's decision is the
            final   administrative    action   of    the
            Department of Commerce.

Frontier claims that the NMFS failed to substantially comply

with this procedure.      This argument is without merit.

            Frontier mischaracterizes the "initial decision" as the

recommendation of the hearing officer and argues that because

Frontier was satisfied with that "decision," and did not appeal

it further, that "decision" became the final agency action.

Frontier makes much of the fact that it never received a copy of

MacDonald's report.      Frontier, however, was not entitled to it.

The   recommendation    of   MacDonald     was   an   internal   memorandum

written to Regional Director Rosenberg.                In fact, the NMFS

denied Frontier's request for that document on the grounds that

it fell within an exemption to the Freedom of Information Act

("FOIA").     See   5   U.S.C.   §   552(b)(5).3      MacDonald,    as   the


      3   Frontier, pursuant to the FOIA, requested "[a]ll
decisions and/or recommendations made by Joel MacDonald,
Esquire, hearing officer for the National Marine Fisheries
Service related to the appeal by the Frontier Fishing
Corporation of the limited access multispecies and scallop
combination status for the F/V Settler." The NMFS denied the
request by letter to plaintiff's counsel, and stated, in
pertinent part:

            This   information    is   protected    from
            disclosure under 5 U.S.C. § 552(b)(5). This
            FOIA   exemption   protects    predecisional

                                     -7-
appointed hearing officer, did exactly what was specified by the

regulation:   he   made   "findings   and   a   recommendation   to   the

Regional Administrator." This recommendation was advisory only;

it was not a "decision" of the agency.

          A proper characterization of the appeal procedure used

by the agency is as follows: The sequence of events began on May

28, 1997, when Kurkal, on behalf of the NMFS, wrote a letter to

Frontier indicating that the F/V Settler's "multispecies limited

access permit was issued in error" and it could no longer hold

two permits simultaneously.     The NMFS invited Frontier to choose

which permit (scallop or multispecies) it wished to hold.             The

letter concluded that if no selection was made within thirty

days, the NMFS would cancel the limited access multispecies

permit.   This letter, in effect, served as the denial of the

dual permits.




          documents that are part of the deliberative
          process.      This   deliberative    process
          privilege is intended to prevent injury to
          the quality of agency decision making. Mr.
          MacDonald's recommendation to the Regional
          Administrator regarding the disposition of
          the appeal involving the F/V Settler was
          made as part of the deliberative process
          outlined in 50 C.F.R. § 648.4 and was
          formulated prior to the agency's decision on
          this appeal.   Thus, it falls within this
          exemption.

                                 -8-
           Frontier was unsatisfied with this "denial" of the dual

permits and initiated the appeal process.                      Frontier wrote a

letter to the Regional Director of the NMFS on August 8, 1997,

and requested review of that decision.                 Kurkal, on behalf of the

NMFS, responded to Frontier.           This was the "initial decision"

made by a "designee" of the Regional Administrator.                     The letter

begins:   "This responds to your recent letter to Dr. Rosenberg

[the Regional Administrator] concerning your limited access

multispecies permit."        The logical inference is that Kurkul was

writing as the "designee" of the Regional Administrator.                           She

indicated that she reviewed the record, but reached the same

result.      This    "initial    decision     on       the   appeal"    made      by   a

"designee" of the Regional Administrator concluded:                          "A NMFS

Hearing   Officer     will   contact    you    so       that   you     may   present

evidence [to bolster your claim]."

           Following the language of the regulations, the appeal

process continued:        Frontier requested review of the initial

decision of the agency.         Review was conducted by hearing officer

MacDonald.      He    made   findings   and        a    recommendation       to    the

Regional Administrator.          The memorandum was advisory only and

could not be characterized as a "decision" of the agency.

           Upon receiving the findings and recommendation of the

hearing   officer,     the   Regional   Administrator           issued       a   final


                                     -9-
decision on the appeal.       He disagreed with the recommendation of

the hearing officer, as was within his discretion, and denied

Frontier's    appeal.          This   decision      became      the   final

administrative action of the Department of Commerce.

                             III.   CONCLUSION

         We    hold   that    the   NMFS   did   follow   its   own   appeal

procedure.    We find no error in the process used by the NMFS and

hold that its decision was in accordance with law, and was not

arbitrary, capricious, or an abuse of discretion.            Therefore, we

find no reason to set aside the agency's decision and hold that

the district court's decision is affirmed.           No costs to either

party.




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